This week the Trump administration announced it would not impose new sanctions on Russia despite being directed to do so by Congress last year. The sanctions are unnecessary, the State Department argued, because the legislation requiring them is “serving as a deterrent” to Russian arms sales already. Instead, the Treasury Department published a list of senior Kremlin officials and Russian “oligarchs” as a warning to each individual that they may be targeted by sanctions in the future.
News of the administration’s decision immediately raised eyebrows. Can the president just ignore what Congress said? Is President Trump the first to try? Is this even legal? What does the Constitution say?
The issue at hand is executive discretion, and it doesn’t offer any easy answers. It is generally agreed that this discretion exists, which is to say the president has a degree of latitude in how he chooses to enforce the laws Congress passes. Part of this is simple practicality in our over-criminalized age, as law professor Ilya Somin notes at Reason. There are so many laws on the books it’s impossible to enforce them all at once. The president has to prioritize.
“Article II of the Constitution states that the president must ‘take Care that the Laws be faithfully executed,’” Somin writes. “But that requirement does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.”
So executive discretion exists and is not inherently negative or unconstitutional. Where we run into complications is in determining its limits, and this uncertainty creates space for abuse of power.
Let’s use the sanctions situation as an example. This story actually begins back in August, when Congress overwhelmingly passed, and President Trump unwillingly signed, a bill targeting Iran, North Korea, and Russia with sanctions as a means of punishing each state’s past behavior and coercing its future cooperation with Washington’s aims. A presidential veto would have been easily overridden, so though the White House wasn’t happy with the final bill, Trump decided to approve it while issuing two signing statements.
Now, a signing statement is a curious and controversial thing. It’s when the president signs a bill but does so while publishing an explanation of how he intends to enforce it—or not enforce it. A study published by the Congressional Research Service in 2009 found post-Carter presidents increasingly use signing statements to register their objection to portions of the bills they make into law. President George W. Bush issued 152 statements, and eight in 10 included an objection. President Obama pledged “not to use presidential signing statements to get [his] way” in office. Though he did issue far fewer statements than Bush, Obama broke that promise.
Trump’s two signing statements were quite different from each other. One was pretty typical Trumpian boasts and bombast, packed with complaints about Congress “improperly encroach[ing] on Executive power”—a problem no one outside the White House thinks is real—and lawmakers’ other failures to do Trump’s will.
The other was more serious, claiming the bill includes “a number of clearly unconstitutional provisions.”
“My Administration will give careful and respectful consideration to the preferences expressed by the Congress in these various provisions,” Trump wrote, “and will implement them in a manner consistent with the President’s constitutional authority to conduct foreign relations.” Thus Trump approved the bill while announcing his disapproval of parts of it on constitutional grounds.
Space here won’t permit an examination of whether Trump’s assessment was correct, though given his expansive view of executive power—a view our Constitution’s framers did not share—I have my doubts.
That said, raising a constitutional objection is in theory (if perhaps not in this specific instance) the right thing to do, for there’s an important difference between the president not enforcing laws he believes are unconstitutional and not enforcing ones he simply dislikes. There is also a distinction to be made between declining to enforce laws that limit government power (like President George W. Bush’s deplorable decision to ignore a congressional ban on torture) and declining to enforce laws that exert government control over the people (like many presidents’ decision not to prosecute marijuana use on college campuses).
The Supreme Court has never directly addressed the constitutionality of signing statements, and maybe it is time it did. Reassertion of Congress’ constitutional authority as the primary source of federal policy would help, too. But the better remedy in most cases at the fuzzy edges of executive discretion would be to “narrow the scope of federal law” altogether: Let the government do less, so we can be more certain what it does do is both right and legal.