clock menu more-arrow no yes

Trump: Congress is encroaching on the executive branch. Law professor: no, it’s not.

President Trump Delivers Statement On Congressional Baseball Practice Shooting Photo by Chip Somodevilla/Getty Images

On Wednesday, Congress forced President Donald Trump to sign a Russia sanctions bill into law. Because the bill passed Congress with a veto-proof majority, the president had two choices: sign it or veto it and then watch Congress immediately overrule him.

Trump, reluctantly, signed the bill — but not without protest.

As soon as the bill was signed, the White House released two statements in a matter of minutes. Both statements appear to challenge Congress on constitutional grounds. “In its haste to pass this legislation,” the first statement reads, “the Congress included a number of clearly unconstitutional provisions.”

The second statement, replete with references to Trump’s mythological deal-making, calls the bill “seriously flawed” because “it encroaches on the executive branch’s authority.”

So it would appear that the president thinks Congress overstepped its bounds by passing a bill that, as Vox’s Zeeshan Aleem writes, “handcuffs” the president’s ability to lift sanctions against Russia.

I reached out to Andy Wright, a constitutional law professor at Savannah Law School, and asked him if Trump’s claims are legitimate. In addition to serving as associate counsel to the president during the Obama administration for two years, Wright’s research focuses on legal conflicts over separation of powers.

His assessment was simple and straightforward: Congress is well within its rights to impose sanctions against a foreign power in spite of the president’s objections. It is, however, unusual for Congress to do so. While perfectly constitutional, it sends a clear signal: they don’t trust him to act responsibly when it comes to Russia.

You can read our full conversation below.

Sean Illing

What’s your initial takeaway after reading the White House statements?

Andy Wright

My overall takeaway is that it's not an aggressive presidential signing statement. He doesn't actually object to the sanctions themselves as a constitutional matter, and he makes an affirmative statement that he plans to take to heart Congress’s preferences here. This seemed much more like reservations of executive branch legal doctrine that have been going on in fights between Congress and the executive for a long time.

To me, these statements read more like an Office of Legal Counsel document from the Department of Justice than a Trump document.

Sean Illing

Here’s the key question that needs answering: Is Congress overstepping its constitutional bounds by constraining the president in this way?

Andy Wright

The big picture answer is no. Congress has the right to impose sanctions on foreign powers, and the president doesn't appear to be objecting to that particular power. Congress has forced this bill onto the president because they had a veto-proof majority. So he had no choice but to sign this bill or get overridden. But he didn't actually challenge the constitutionality of the bill itself.

Sean Illing

Well, in the first statement there is a line that reads a lot like a frontal challenge to the constitutionality of Congress’ actions here: “In its haste to pass this legislation, the Congress included a number of clearly unconstitutional provisions.” It then goes on to list specific sections of the Constitution having to do with executive authority to recognize foreign governments.

Andy Wright

Right, I still maintain what I was saying, though. Because when you look at the specific constitutional objections he’s making, they relate to the legislative veto, the unitary executive (meaning the president's ability to control subordinates in the executive branch), and recognition power. All of those things, which relate to the assertions of policy, are definitely constitutional objections but none of them challenge the concept that Congress can impose sanctions in spite of the president's preferences.

So that's what I mean when I say this statement doesn't actually challenge the constitutionality of the bill itself. There are constitutional objections in here, but they are ancillary objections. They read like placeholder objections, which means they're laying down a marker so they can preserve their ability to fight these issues later. But that’s a pretty standard legal strategy.

Sean Illing

In the second statement, the wording seems far less rigid. He calls the bill “seriously flawed” because “it encroaches on the executive branch’s authority.” Is that a more justifiable claim?

Andy Wright

Well, the president is the "sole organ" of the government in diplomatic relations but that doesn't bear on sanctions. There's a long history of congressional sanctions on foreign governments — it's pretty well-established in the law. His core objection here is about policy rather than a constitutional objection. There are constitutional objections in that statement, but, again, they're really at the margins of the bill rather than an objection to Congress's ability to establish Russia sanctions.

Sean Illing

Can you explain what you mean when you say his objections are peripheral and don’t touch the core issue, which is whether Congress can impose sanctions without the president’s consent? In the statement, for example, Trump references provisions 253 and 257, presumably because they have something to do with his exclusive right to recognize foreign governments, including territorial boundaries. What is he arguing here?

Andy Wright

President Trump is arguing that when Congress says it is the policy of the United States to seek reinstatement of Ukraine's territorial integrity, he reserves the right to recognize a different political order (i.e., Russia) because that's a presidential function. I do not believe Trump is signaling an intent to contradict Congress's legislated policy position. Rather, this sounds like a boilerplate preservation of an executive branch legal position promoted by the Office of Legal Counsel.

Sean Illing

So the Congress, in your view, hasn’t overstepped its authority by handcuffing the president’s ability to impose or lift sanctions?

Andy Wright

Not as a constitutional matter. Normally, I would tilt in the direction of allowing a president flexibility to negotiate with a foreign power, and that's certainly what you see more often than not. However, this is a unique circumstance in which there are legitimate concerns about a compromised relationship between Russia and this president. So I think it's fully within Congress’s constitutional authority to constrain him this way. Under normal circumstances, I might argue that that's a bad idea as a matter of policy, but these aren't normal circumstances.

Sean Illing

So the Congress is taking an unusual step here but one that is well within its constitutional authority?

Andy Wright

That’s absolutely correct.

Sean Illing

In that case, the signal is pretty clear: Congress doesn’t trust the president to act responsibly when it comes to Russia.

Andy Wright

That's also correct. They [Congress] clearly want a tighter leash with respect to Russia, and perhaps other countries and contexts as well. There's just no other way to interpret this action.

Sean Illing

Given everything you’ve said, I’ve no idea what the point of this statement was. Apart from throwing a public tantrum, what does it add up to?

Andy Wright

Not much.