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Trump disputes parts of defense law as an affront to his authority

President Trump holds the defense bill he signed during a ceremony Monday at Fort Drum, N.Y. (Hans Pennink/AP)

President Trump said he does not have to abide by parts of the $716 billion defense bill he signed into law Monday because they encroach on executive authority, pushing back on attempts by lawmakers to constrain him on foreign policy and military matters.

Among the 50 provisions of the law that Trump disputed late Monday in a White House statement were sections that require formal justification for any administration activities that recognize Russian sovereignty over Crimea, as well as consultation with Seoul and Tokyo before any move to shrink the U.S. troop footprint in South Korea.

Trump also objected to the legal basis for a measure in the law that requires the Pentagon to assign a high-level official to review and manage the military’s widely criticized process for determining when American airstrikes result in civilian deaths. 

Trump did not expressly say that his administration would refuse to abide by the provisions. Instead, he said he would implement them where feasible and consistent with his authority as commander in chief and sole representative of the nation in foreign affairs. 

“I applaud the Congress for passing this bill to provide the [Defense Department] with the resources it needs to support our Armed Forces and keep America safe,” Trump said. “I note, however, that the bill includes several provisions that raise constitutional concerns.”

Known as “signing statements,” such declarations are an example of the traditional tug of war between the executive and legislative branches over control of the government. 

Trump signs defense bill but snubs the senator the legislation is named after — John McCain

President George W. Bush and President Barack Obama regularly issued them to dispute elements of the annual defense policy bill, known as the National Defense Authorization Act, or NDAA — one of the few laws Congress passes every year. Though the history of signing statements dates to the 19th century, they carry questionable legal weight, because the Constitution does not include them in the legislative process. 

The signing statements are “not new and we’re not particularly animated” about them, a congressional aide working on defense matters said, speaking on the condition of anonymity to comment frankly about the practical impact of the statement.  

“If Congress is dissatisfied with the way provisions in an NDAA are executed, then Congress has tools in the next NDAA to do what they want,” for example by adding reporting requirements or tying policy steps to funding, the aide said. Above all, Congress controls the government’s purse; the appropriations process is also another chance for lawmakers to try to force action. 

Since Trump became president, Congress has grown more assertive in circumscribing the executive branch’s foreign and defense policies, with lawmakers from both parties fearing the president will cozy up to Russia, remove troops from South Korea or take other steps they see as harmful to U.S. interests. 

Trump disputed dozens of clauses in the bill, whereas Obama generally disputed fewer, at times only a handful. Bush was more expansive in his signing statements, at times hitting out at a raft of congressional measures in the annual defense bill, akin to Trump’s approach Monday. 

The White House took issue in particular with certain provisions that appeared to be responding to prior Trump comments. In March, for example, Trump seemed to threaten to pull the 28,500 U.S. troops stationed in South Korea if he did not get the trade deal he wanted with Seoul, though he later said a withdrawal was not on the table. Other provisions sought to box the administration into taking a harder line against Russia after Trump spelled out his desire for warmer relations with Moscow and left open the possibility of recognizing Russian sovereignty over Crimea, the peninsula Russia annexed from Ukraine in 2014. 

Scott Anderson, a former State Department lawyer who is now at the Brookings Institution, said that while the signing statement issued Monday was similar to those from previous years, the pushback underscored the expansive approach that lawmakers took in crafting this year’s bill. 

“This Congress and NDAA are pushing the envelope a little more in terms of trying to guide or constrain national security policy,” Anderson said. 

That includes measures seeking to prevent Trump, for example, from giving Moscow a pass on potential arms-control violations or resuming Pentagon cooperation with the Russian military. Other measures in this year’s bill force the administration to provide Congress with more information on U.S. activities advising foreign forces, an indication of lawmakers’ desire to be kept abreast of operations such as the one in which U.S. personnel were killed in Niger in 2017. 

Anderson said those kinds of provisions reflected concerns in Congress about the administration’s handling of foreign affairs.

“I think it’s questioning the judgment of the Trump administration,” he said. “They want to set up some roadblocks if they drive it off the rails.”

Anderson said the administration was vague in the signing statement about whether it would comply with the objectionable provisions, suggesting it would cooperate when possible but leaving the door open to not doing so. 

Trump’s statement also pointed to provisions that restrict the administration’s ability to move detainees out of the U.S. facility at Guantanamo Bay, Cuba. 

In objections similar to those raised by the Obama administration, the Trump White House said the law may violate separation-of-powers tenets, “including the president’s constitutional authority as commander in chief.” It flagged those concerns even though the Trump administration’s Guantanamo policy differs dramatically from that of the last administration. Trump has promised to keep the prison open and end overseas resettlement of detainees in most instances. 

Trump’s statement also disputed a section of the legislation that pulls funding for some in-flight refueling of Saudi Arabian and United Arab Emirates planes operating over Yemen until the secretary of state certifies that those governments are undertaking good-faith diplomatic efforts to end the war, as well as measures to alleviate the humanitarian crisis and reduce harm to civilians. 

Brian McKeon, a former senior Pentagon official who is now senior director at the Penn Biden Center for Diplomacy and Global Engagement, said the number of NDAA clauses requiring the Pentagon to submit reports to Congress had grown substantially in recent years.

McKeon, who signed off on such reports at the Pentagon during the Obama era, said the reporting demands often strained the resources of the Defense Department’s policy division. 

He said lawmakers had few options to enforce clauses that demand reports or actions that administrations have found objectionable. 

“They don’t have an enforcement mechanism other than to take some other retribution,” he said. That could include holding up a Pentagon nominee or a request to reallocate military funding.