Saturday, August 5, 2017

Is Trump Right in Asserting that the Foreign Sanctions Statute is Unconstitutional? Yes and No.

On August 2, President Trump signed H.R. 3364, the "Countering America's Adversaries Through Sanctions Act," a law imposing sanctions on Iran and North Korea and prohibiting the President from lifting existing sanctions on Russia. However, President Trump also issued a signing statement (actually two signing statements) in which he asserted that the law was unconstitutional. Was he right?

In part the President is correct: the provision of H.R. 3364 that declares that it is the policy of the United States not to recognize Russia's sovereignty over Crimea and eastern Ukraine is unconstitutional. The Supreme Court has ruled that the Constitution implicitly gives the President has the sole power to recognize what territories are subject to foreign governments. In contrast, the sanctions imposed by Congress on Russia on account of its actions in Ukraine and the limitations on the President's power to lift those sanctions are constitutional, because the Constitution expressly vests Congress with the power to regulate foreign commerce.

H.R. 3364 was adopted in part to stop President Trump from lifting sanctions that President Obama imposed upon Russia after Russia invaded Ukraine and seized the Crimean Peninsula, incorporating Crimea into Russia. At the time of the Russian invasion and the Russian-controlled Crimean plebiscite, it was reported that President Obama told Vladimir Putin that the United States would "never" recognize Russian sovereignty over Crimea. Richard Wolf, Obama to Putin: U.S. Will Never Recognize Crimea Vote, (USA Today, March 14, 2014). Three days later, in his statement announcing the sanctions on Russia, President Obama stated:
But throughout this process, we’re going to stand firm in our unwavering support for Ukraine.  As I told Prime Minister Yatsenyuk last week, the United States stands with the people of Ukraine and their right to determine their own destiny.  We’re going to keep working with Congress and our international partners to offer Ukraine the economic support that it needs to weather this crisis and to improve the daily lives of the Ukrainian people.
In his more informal signing statement to H.B. 3364, in which the President expressed his personal feelings about the bill, President Trump signaled that he considered Russia's invasion of Ukraine to be in a completely separate category from that of the actions of Iran and North Korea. The President expressed "hope" for improvement of relations with Russia, in contrast to the "dangerous," "destabilizing," and "malignant" activities of Iran and North Korea. The President stated:
Yet despite its problems, I am signing this bill for the sake of national unity.  It represents the will of the American people to see Russia take steps to improve relations with the United States.  We hope there will be cooperation between our two countries on major global issues so that these sanctions will no longer be necessary.Further, the bill sends a clear message to Iran and North Korea that the American people will not tolerate their dangerous and destabilizing behavior.  America will continue to work closely with our friends and allies to check those countries’ malignant activities.

I find President Trump's lack of concern over the Russian invasion of Ukraine and annexation of its territory deeply disturbing. And what of Russian control over Transnitria? What of the Russian invasion into Abkhazia and South Ossetia? What of Russia's persistent interference in our elections, including the election that elevated Donald Trump to the Presidency? What of Russia's undermining of our National Security Adviser H.R. McMaster? (Business Insider reported yesterday that "Twitter accounts that have been linked to Russian influence operations have jumped on the anti-McMaster bandwagon.") Natasha Bertrand, The Knives Are Coming Out for McMaster (Business Insider, August 4, 2017). Are these actions not dangerous? Are they not destabilizing? Are they not malignant? President Trump's signing statement regarding H.R. 3364 and his silence regarding Russian undermining of our chief national security officer are yet more evidence of Trump's alliance with the murderous and dictatorial regime of Vladimir Putin.

But this is not to say that the President is entirely wrong about the constitutionality of H.R. 3364. In the more lawyerly signing statement, the President contended that H.B. 3364 violates the Constitution because it infringes upon the President's power to recognize foreign governments. This second signing statement asserts:
In its haste to pass this legislation, the Congress included a number of clearly unconstitutional provisions.  For instance, although I share the policy views of sections 253 and 257, those provisions purport to displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry.
In Zivotofsky the Supreme Court reaffirmed the longstanding principle that the President, and the President alone, has the power to recognize foreign governments, and that a necessary adjunct to that power is the power to determine over what territory that government is sovereign. (A link to a Supreme Court Review podcast reporting on the Court's decision in Zivotofsky is available here.) The textual support for the President's recognition power is slim; it is derived from the clause in the Constitution granting the President the power to "receive ambassadors." Nevertheless, there is a longstanding tradition dating back to George Washington that this is the sole prerogative of the President. Trump is correct that the President, and the President alone, has the power to determine whether Crimea belongs to Russia or Ukraine.

However, President Trump is incorrect in concluding that Congress therefore lacks the power to impose sanctions on Russia, and to restrict the power of the President to lift those sanctions. In contrast to the President's implied recognition power and power over foreign affairs, the Constitution explicitly grants Congress the power to regulate commerce with foreign nations. In fact, in granting this power the Commerce Clause mentions foreign commerce first, before interstate commerce:
The Congress shall have power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
In the seminal case Gibbons v. Ogden (1824) the great Chief Justice John Marshall described "the power to regulate commerce" in these terms:
We are now arrived at the inquiry -- What is this power?It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. 
Should he choose, President Trump has the power under the Constitution to recognize Russia as having sovereignty over Crimea or other lands it has unlawfully seized in Europe and Georgia. But Congress has the power to impose economic sanctions on Russia for those acts of war, and to limit the President's power to lift those sanctions.

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