Donald Trump and the sanctions law: Supreme Court challenge coming (full text and analysis of the Presidential Statement)

By

Duran

Whilst signing the sanctions law President Trump publishes a Presidential Statement which is clearly intended to prepare the ground for a challenge to the US Supreme Court on the grounds that key provisions in the sanctions law are unconstitutional.

US President Trump has as predicted signed the new sanctions law but he has done so in a most interesting way which suggests that after a rocky couple of weeks he may be rediscovering his political touch.

I share the view that it would have been a serious mistake for President Trump to veto the new sanctions law.  With overwhelming majorities voting for the sanctions law in Congress, his veto would certainly have been overridden and he would have achieved nothing by attempting to exercise his veto other than escalate the political crisis in the US in a way that would have damaged his own authority.

Nor in my opinion was the other option some have suggested – of letting the sanctions law come into effect without appending his signature – been a good one.  It would have made President Trump appear weak and would have exposed to almost as much criticism as an attempt to veto the law would have done.

Instead by signing the law President Trump has been able to make a Presidential Statement which whilst it has enraged his opponents has put him in a stronger position than an attempt to exercise any other option would have done.

The Presidential Statement has clearly been carefully drafted – unquestionably by lawyers – and it is clear from Secretary of State Tillerson’s comments about the sanctions that he was involved in drafting it.  Its text deserves to be set out in full

  • Today, I signed into law the “Countering America’s Adversaries Through Sanctions Act,” which enacts new sanctions on Iran, North Korea, and Russia.  I favor tough measures to punish and deter bad behavior by the rogue regimes in Tehran and Pyongyang.  I also support making clear that America will not tolerate interference in our democratic process, and that we will side with our allies and friends against Russian subversion and destabilization.

    That is why, since taking office, I have enacted tough new sanctions on Iran and North Korea, and shored up existing sanctions on Russia.

    Since this bill was first introduced, I have expressed my concerns to Congress about the many ways it improperly encroaches on Executive power, disadvantages American companies, and hurts the interests of our European allies.

    My Administration has attempted to work with Congress to make this bill better.  We have made progress and improved the language to give the Treasury Department greater flexibility in granting routine licenses to American businesses, people, and companies.  The improved language also reflects feedback from our European allies – who have been steadfast partners on Russia sanctions – regarding the energy sanctions provided for in the legislation.  The new language also ensures our agencies can delay sanctions on the intelligence and defense sectors, because those sanctions could negatively affect American companies and those of our allies.

    Still, the bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.  Congress could not even negotiate a healthcare bill after seven years of talking.  By limiting the Executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together.  The Framers of our Constitution put foreign affairs in the hands of the President.  This bill will prove the wisdom of that choice.

    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 built a truly great company worth many billions of dollars.  That is a big part of the reason I was elected.  As President, I can make far better deals with foreign countries than Congress

Note that the Presidential Statement makes no criticism of Russia, refers to no action by Russia that might justify the sanctions, and clearly distinguishes Russia from the two other countries which are being targeted with sanctions – North Korea and Iran – which President Trump clearly considers should be sanctioned.

Some of the language in the Presidential Statement also clearly hints that the Trump administration will seek to avoid over-rigorous enforcement of the measure so as not to hurt the interests of US companies and of the US’s European allies, concern for whose interests the Presidential Statement is careful to emphasise.

The single most important comments in the Presidential Statement are those which however clearly say that the sanctions law infringes on the President’s constitutional prerogative to direct the US’s foreign policy.

In doing so the Presidential Statement calls into question the wisdom of the whole measure, for example by worrying that its effect will be to “drive China, Russia, and North Korea much closer together”. It is actually remarkable that Donald Trump – a person wholly inexperienced in exercising public office – seems to be the only prominent public official in the US who worries about this.

The key point is however that the sanctions law unconstitutionally restricts the President’s ability to conduct foreign policy, in this case by hindering his ability to conduct negotiations with the Russians and to reach agreements with them which might involve the lifting of sanctions.

It is difficult to see these comments are anything other than preparation for a long term challenge of the measure to the US Supreme Court.  The US Constitution gives Congress the power to regulate commerce with foreign states.  However the President is saying that by seeking to tie his hands Congress is abusing this power and is acting unconstitutionally.

At this point I should say that by signing the law President Trump is not throwing away his right to challenge the constitutional basis of the law in the US Supreme Court at some future time.  The President does not have the power to sign away his rights which are given him by the Constitution.  If the US Supreme Court at some future time decides that the President’s constitutional powers are being infringed by the law, then it will set the offending provisions of the law aside regardless of whether or not the President signed the law.

As to the circumstances where the President might make this challenge, the Presidential Statement all but says them.  The challenge will be made if or when the President reaches an agreement with the Russians – “a deal” – which involves an agreement to lifting the sanctions, but Congress, using the clumsy procedure set out in the law rejects, refuses to lift the sanctions and keeps them in place.  At that point the President will call on the Supreme Court to declare the offending passages in the law unconstitutional and set them aside.

I am not an expert on US constitutional law.  I cannot say whether or not such a challenge if or more probably when it is brought will succeed.  On balance I suspect it will, and the careful wording of the Presidential Statement suggests the President has legal advice that it will.  Time will show whether or not that advice is right.

However irrespective of whether or not the challenge succeeds, I have no doubt President Trump is politically wise to take this course.  To have done anything else would as I have said have deepened the political crisis in the US and damaged the authority of the President to no useful purpose.

At least in this way the President is keeping his legal powder dry, and his future options open.