When President Donald Trump signed the $716 billion John S. McCain, Jr. National Defense Authorization Act into law on Monday, far too little coverage was devoted to the contents of that bill and far too much to Trump’s petty refusal during the signing ceremony to even mention the ailing senator after whom the bill is styled.
The right-wing press and particularly neoconservatives were salivating over the bill, which provides for expanding the armed forces by over 15,000 soldiers, a 2.6 percent pay raise for those soldiers, and $7.6 billion for another 77 F-35 fighter jets of dubious utility, among other very expensive things. Trump used the ceremony to tout his plans for a Space Force; the bill does not provide for establishing an entire new branch of the armed forces, as the president wants, but does create a space command under U.S. Strategic Command. (Lawfare provides a detailed summary of the bill’s various provisions, for anyone who wants to get into the weeds of it.)
The bill’s enormous price tag was not, however, the most distressing feature of Monday’s events. That would be the signing statement the White House issued after Trump signed the NDAA, in which the president informed Congress that he intends to ignore or override 51 sections of the bill that he sees as infringing upon his constitutional powers.
The bill includes a number of provisions meant to inform or direct policy toward specific countries, many of which Trump rejected. These include a ban on funding “any activity that recognizes the sovereignty of the Russian Federation over Crimea” and restrictions on bilateral military-to-military cooperation with Russia. Trump’s signing statement announced that he would not abide by these provisions: a move sure to raise some eyebrows.
The signing statement also balks at provisions related to the conflict in Yemen, in which the U.S. is supporting Saudi Arabia and the United Arab Emirates while they bomb children and cut deals with Al Qaeda. The Pentagon has been providing aerial refueling of planes and intelligence support to the Saudi-led coalition, and the Trump administration is facing growing pressure from Congress to explain whether we are aiding and abetting war crimes.
To that end, the NDAA includes a provision that would require the secretary of Defense to either authorize that the coalition is making good-faith efforts to pursue a diplomatic resolution to the conflict, reduce risk to civilians, and alleviate the humanitarian situation; or cease assisting in this operation. Of course, our allies are doing none of the above.
Other sections that the president intends to disregard call for the appointment of an officer to develop standards for tracking and reducing civilian casualties resulting from U.S. military operations, and limit the Pentagon’s authorization to reduce the number of intercontinental ballistic missiles we have deployed around the world and the number of active-duty military personnel stationed in South Korea.
Trump also objected to a provision barring the appropriation of funds for closing or transferring detainees out of the prison camp at Guantánamo Bay. This he has no intention of doing, so here he is objecting on principle to Congress telling him what to do about Guantánamo. While his predecessor Barack Obama also objected to similar provisions in NDAAs during his presidency, he nonetheless abided by them.
One puzzling and troubling aspect of Trump’s signing statement, as Fred Kaplan points out at Slate, is that many of the provisions it nixes are not policy directives at all, but rather requests for information, such as for the president to report whether he has enacted sanctions authorized in last year’s NDAA against individuals and entities who have contributed to Russia’s violations of the Intermediate-Range Nuclear Forces Treaty. Congress also wants reports on North Korea’s missile program, Chinese military developments, U.S. counterterrorism operations, civilian casualties in Yemen, and the total number of U.S. soldiers currently deployed in foreign countries.
Per his statement Monday night, Trump and his administration will give them none of this information, arguing that these provisions compel the president to reveal information protected by executive privilege, require him to receive certification from Congress prior to commencing certain military or diplomatic actions, or “purport to dictate the position of the United States in external military and foreign affairs”.
These requirements, Trump contends, violate his powers as commander-in-chief. That’s one of several theories of constitutional law undergirding Trump’s signing statement, some of which have a bit of Supreme Court precedent behind them, but not much. The commander-in-chief objection was used extensively by George W. Bush, much less by Obama.
So far, Trump has used signing statements in a manner mostly similar to how his predecessors used them. His idiosyncratic innovation has been in attaching them to nonbinding resolutions, such as the statement he issued after signing an anti-racism resolution in response to last year’s violent white-supremacist rally in Charlottesville, Virginia, which was bizarrely equivocal on exactly what or whom he actually meant to condemn.
How far Trump will go in defying Congress’s will vis-à-vis the defense bill remains to be seen, but really, it was inevitable that he would abuse the power of the signing statement, because that power is itself abusive.
When Bush began regularly appending signing statements to legislation as an alternative to the line-item veto the Supreme Court had ruled unconstitutional (most notoriously to override a ban on torture enacted in 2005), constitutional scholars warned that this represented a dangerous expansion of executive powers. When Obama continued to employ them in this manner, his progressive critics rightly lambasted him for doing so, pointing out that even if he was using this power to good ends, the next guy wouldn’t. Sure enough, the next guy turned out to be Donald Trump.
If the Democrats win majorities in the legislature this fall, they may well sue the president over signing statements like this one, especially if his administration really insists on withholding information from lawmakers to which they are clearly entitled. That’s one good reason why they are insisting on reviewing testimony Trump’s Supreme Court nominee Brett Kavanaugh gave to Congress in 2006 about Bush’s signing statements and his role as White House staff secretary in producing them.
Kavanaugh has more recently expressed the opinion that it is acceptable for presidents to disobey acts of Congress if they have a “reasonable” constitutional objection to them. If and when he is seated on the court, there is a good chance he will rule on this issue, and knowing what we do about how Trump thinks, the president likely believes his nominee will rule in his favor.
Some of the targeted provisions in this year’s defense bill indicate that even Republican legislators recognize the dangers of letting this president exercise unchecked power in the diplomatic and military arenas. The brazen disregard for the separation of powers displayed in this signing statement should persuade them to finally take a stand against Trump, but at this point, there’s little reason to hope they will.
