Washington, DC - Today, I have signed into law S. 1790, the “National Defense Authorization Act for Fiscal Year 2020” (the “Act”). The Act authorizes fiscal year 2020 appropriations for Department of Defense (DOD) national security programs, provides vital equipment modernization for our military branches, a well‑deserved pay raise for our service members, 12 weeks of paid parental leave to all Federal civilian employees, and, most significantly, authorizes the creation of the 6th Branch of the Armed Services, the United States Space Force as an Armed Force within the Department of the Air Force. I applaud both the Senate and House Armed Services Committees for their work on the bill and the leadership of both chambers for securing its passage. I note, however, that the Act includes several provisions that raise constitutional concerns.
Several provisions of the Act, including sections 1254, 1273, 1698(a), and 2810, purport to restrict the President’s authority to manage personnel, materiel, and logistical matters in the manner the President believes to be necessary or advisable for the successful conduct of military missions and foreign affairs. While I share the objectives of the Congress with respect to maintaining the strength and security of the United States, my Administration will implement these provisions consistent with the President’s authority as Commander in Chief and as the sole representative of the Nation in foreign affairs.
Other provisions of the Act, including sections 1216, 1231, 1234(a), 1242, 1258(a), 2863(a)(2), 3534, 3541, 3543(d), 3551(c)(6), (8), and (11), 6701, 7124, 7125, 7402, 7412(b)(1)(B), and 7426, purport to dictate the position of the United States in external military and foreign affairs. My Administration will treat these provisions consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs, including the authorities to determine the terms upon which recognition is given to foreign sovereigns, to receive foreign representatives, and to conduct the Nation’s diplomacy.
Some provisions of the Act in particular, including sections 1222(a), 1234(a), 1237(b), 1686(a), and 6704, purport to require that the Congress receive a certification, notification, or report before the President directs certain military or diplomatic actions. Section 1234(a) of the Act, for example, purports to require congressional notification before providing Russia with a notice of intent to withdraw from the Open Skies Treaty. I reiterate the longstanding understanding of the executive branch that these types of provisions encompass only actions for which such advance certification or notification is feasible and consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.
I note also the understanding of the executive branch that the definition of the “exclusive economic zone” in section 3532(3) of the Act is provided for purposes of the Maritime SAFE Act only (Division C, title 35, subtitle C) and does not purport to alter the definition of the United States’ exclusive economic zone for all other purposes, including those set forth in Department of State Public Notice 2237 published in the Federal Register, Vol. 60, No. 163, August 23, 1995, pages 43,825-43,829.
Sections 1042 and 1043 of the Act purport to restrict transfers of detainees held at United States Naval Station, Guantánamo Bay. I fully intend to keep that detention facility open and to use it, as necessary or appropriate, for detention operations. Consistent with the statements I have issued in signing previous National Defense Authorization Acts, I reiterate the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees violates constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief.
Other provisions of the Act present concerns under the Constitution’s Appointments Clause and the separation of powers.
First, section 953(b)(1) of the Act provides that the incumbent Commander of the Air Force Space Command (Commander/AFSC) may serve in the new office of Chief of Space Operations (CSO) for a term of 4 years without another appointment by the President that would be subject to the advice and consent of the Senate. This provision would raise Appointments Clause concerns if understood to allow the incumbent Commander/AFSC to accede automatically to the new office. My Administration will therefore construe section 953(b) to require either the President alone or the Secretary of Defense to appoint the Commander/AFSC as CSO. Although my Administration believes the Congress should continue to require that permanent leaders of each Armed Force be presidentially appointed and Senate-confirmed, we respect the Congress’s decision to permit appointment of the CSO by a constitutional alternative method during this transitional period.
Additionally, for a 1-year period following enactment of the Act, section 953(b)(2) would authorize the Secretary of Defense to permit the CSO to serve concurrently as the Commander of the United States Space Command (Commander/USSC) without further appointment. The Secretary’s exercise of that authority could displace the incumbent Commander/AFSC, however, who currently serves as Commander/USSC pursuant to an appointment by the President, with Senate confirmation, and who is thus removable only by the President. My Administration will apply section 953(b)(2) consistent with the President’s removal authority over officials who exercise executive authority.
Second, section 509(a) of the Act purports to condition the authority of the Secretary of Defense to increase the retired grade of a military officer on the advice and consent of the Senate. As applied to any retired military officer, living or dead, this provision violates the separation of powers by giving the Senate a role in an executive decision that the Constitution does not explicitly allocate to the Senate. My Administration will accordingly treat the purported requirement of Senate confirmation as ineffective.
Third, section 6306 of the Act requires the Director of National Intelligence to establish a “Supply Chain and Counterintelligence Task Force” responsible for standardizing the sharing of national security information within the executive branch. The Task Force will consist of representatives of various agencies, but section 6306 does not specify the manner of their selection. To avoid Appointments Clause concerns, my Administration will construe this provision as providing for the Director of National Intelligence, a department head, to approve selections to the Task Force.
Fourth, similar to section 739 of the Act of last year’s National Defense Authorization Act, section 733 deepens existing violations of the Appointments Clause, the Incompatibility Clause, and the separation of powers contained within the statute establishing the Henry M. Jackson Foundation for the Advancement of Military Medicine. I reiterate the statement I provided on August 13, 2018, regarding the parallel provision in the 2019 Act.
Fifth, section 3203 of the Act imposes a deadline on the President’s nomination of a new member to the Defense Nuclear Facilities Safety Board for Senate confirmation. If the President misses the deadline, the provision requires periodic reports to the Senate explaining why and setting forth a plan to expedite the nomination. This interference with the President’s determination regarding whom to nominate for an office exceeds Congress’s permissible role under the Appointments Clause. I will continue to strive to nominate officers for Senate confirmation in a timely fashion but will treat section 3203 as advisory.
Sixth, section 1034(a) of the Act, authorizing the designation of a Senior Technical Authority for each naval vessel class, may allow the exercise of significant governmental authority by a person not appointed as an officer. To comply with the Appointments Clause, my Administration will ensure that an individual serves as a Senior Technical Authority only with the approval of the Secretary of Defense.
Seventh, several provisions, including sections 1639, 1735, 1738, 6741, and 7221 of the Act, purport to establish, reauthorize or add to the authorities of hybrid commissions or boards comprising both executive branch and legislative branch appointees. Because these commissions include members appointed by the legislative branch, under the separation of powers they cannot be executive branch entities, which must be subject to the supervision of the President under Article II. My Administration, accordingly, will treat the commissions as legislative branch entities, separate from the executive branch. The executive branch members of these Commissions will remain accountable to the President in the exercise of their statutory responsibilities.
A number of provisions of the Act, including sections 1236(b)(5), 1261, 1264, 1277, 1285, 1644, 1650, 1686(b), 1691, 1711, 1722, 1744, 1753(a)(3), 3134(b)(2)(A), 3202(c), 5102(b), 5501, 3554(b)(1)(A) and (c)(1), 5502(b), 5511, 5502(b)(3)–(4), 5709(a) and (c), 5713, 5714, 5715, 5721, 5722(d)(1), 5304(b), 5602(b)(3)–(4) and (c)(1), 6310(a), 6315(b)(1), 6507(c)(1)(B), 6603(b), 6604(a) and (b), 6705, 6716, 6718(a), 6719, 6729(b), 6741, and 7221(e), purport to mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with Presidential control of the process for making a determination that information is protected. My Administration will treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties.
A number of other provisions of the Act, including sections 231(e)(2), 739(g)(2)(B)(v), 800(f)(2)(D), 1246(b)(5), 1260C(b)(2)(B), 1260E(b)(6), 5705, 6712(c)(1)(B), 6728(4), and 7145(2), purport to require the President or executive branch officials under the President’s supervision to recommend certain legislative measures to the Congress. My Administration will treat these provisions consistent with Article II, section 3 of the Constitution, which provides the President the discretion to recommend to the Congress only “such Measures as he shall judge necessary and expedient.”
Finally, section 633(c) of the Act purports to condition the authority of the Secretary of Defense to consolidate military exchanges and commissaries on notification by the Committees on Armed Services of both houses that they have received and accepted a Comptroller General report. This condition is an impermissible form of congressional aggrandizement in the execution of the laws other than by the enactment of a statute. Out of a spirit of comity, my Administration will wait a reasonable period of time to receive this notification but is not legally bound to do so.
DONALD J. TRUMP
THE WHITE HOUSE,
December 20, 2019
Today, I have signed into law H.R. 1158, the “Consolidated Appropriations Act, 2020” (the “Act”), which authorizes appropriations to fund the operation of certain agencies in the Federal Government through September 30, 2020.
Certain provisions of the Act (such as Division A, section 8070) purport to restrict the President’s constitutional authority as Commander in Chief to control the personnel and materiel that the President believes to be necessary or advisable for the successful conduct of military missions. Others provisions (such as Division A, sections 8075, 8078, 8110, 9013, and 9016) purport to require advance notice to the Congress before the President may direct certain military actions or provide certain forms of military assistance.
In addition, Division C, section 534 and Division D, section 516 of the Act restricts transfers of detainees held at United States Naval Station Guantanamo Bay. I fully intend to keep that detention facility open and to use it, as necessary or appropriate, for detention operations. Consistent with the statements I have issued in signing other bills, my Administration will treat these, and similar provisions, in a manner consistent with the President’s constitutional authority as Commander in Chief. I also reiterate the longstanding understanding of the executive branch that requirements of advance notice regarding military or diplomatic actions encompass only actions for which providing advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to ensure national security.
Certain provisions of the Act (such as Division B, sections 509, 516, and 526; Division D, section 523) could, in certain circumstances, interfere with the exercise of the President’s constitutional authority to conduct diplomacy. My Administration will treat each of these provisions consistent with the President’s constitutional authorities with respect to foreign relations, including the President’s role as the sole representative of the Nation in foreign affairs.
Division B, section 531 of the Act provides that the Department of Justice may not use any funds made available under this Act to prevent implementation of medical marijuana laws by various States and territories. My Administration will treat this provision consistent with the President’s constitutional responsibility to faithfully execute the laws of the United States.
Certain provisions of the Act within Division D, title II, under the heading “Office of Management and Budget—Salaries and Expenses,” impose restrictions on supervision by the Office of Management and Budget (OMB) of work performed by executive departments and agencies, including provisos that no funds made available to OMB “may be expended for the altering of the annual work plan developed by the Corps of Engineers for submission to the Committees on Appropriations”; that “none of the funds provided in this or prior Acts shall be used, directly or indirectly, by the Office of Management and Budget, for evaluating or determining if water resource project or study reports submitted by the Chief of Engineers acting through the Secretary of the Army are in compliance with all applicable laws, regulations, and requirements relevant to the Civil Works water resource planning process”; and that “none of the funds appropriated in this Act for the Office of Management and Budget may be used for the purpose of reviewing any agricultural marketing orders or any activities or regulations under the provisions of the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.).” The President has well-established authority to supervise and oversee the executive branch and to rely on subordinates, including aides within the Executive Office of the President, to assist in the exercise of that authority. Legislation that significantly impedes the President’s ability to supervise the executive branch or obtain the assistance of aides in this function violates the separation of powers by undermining the President’s ability to fulfill his constitutional responsibilities, including the responsibility to faithfully execute the laws of the United States. My Administration will, therefore, treat these restrictions consistent with these Presidential duties.
Certain provisions of the Act (such as Division C, sections 713 and 743) purport to prohibit the use of appropriations to supervise communications by employees of the executive branch to the Congress and to Inspectors General. Other provisions (such as Division C, section 616) purport to prohibit the use of funds to deny an Inspector General access to agency records or documents. My Administration will treat these provisions in a manner consistent with the President’s constitutional authority to control the disclosure of information that could impair foreign relations, national security, law enforcement, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties, and to supervise communications by Federal officers and employees related to their official duties, including in cases where such communications would be unlawful or could reveal confidential information protected by executive privilege.
In addition, certain provisions of the Act (such as Division B, section 112) purport to mandate or regulate the dissemination of information that may be protected by executive privilege. My Administration will treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties.
Certain provisions of the Act (such as Division D, section 536) purport to require recommendations regarding legislation to the Congress. Because the Constitution gives the President the authority to recommend only “such Measures as he shall judge necessary and expedient,” my Administration will continue the practice of treating provisions like these as advisory and non‑binding.
Certain provisions of the Act (such as Division C, sections 101, 112, 113, 116, 117, 201, 541, 608, 609, 717, 730, 803(a), and 815) purport to condition the authority of officers to spend or reallocate funds on the approval of one or more congressional committees. These are impermissible forms of congressional aggrandizement in the execution of the laws other than by the enactment of statutes. My Administration will make appropriate efforts to notify the relevant committees before taking the specified actions and will accord the recommendations of such committees all appropriate and serious consideration, but it will not treat spending decisions as dependent on the approval or prior consultation with congressional committees.
DONALD J. TRUMP
THE WHITE HOUSE,
December 20, 2019.
