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Today, I have signed into law S. 47, the “John D. Dingell, Jr. Conservation, Management, and Recreation Act” (the “Act”).  Two provisions of the Act, however, raise constitutional concerns.

First, section 2406 establishes the Adams Memorial Commission with responsibility to plan and establish a permanent memorial in Washington, D.C., to honor the life and legacy of President John Adams.  The Commission will include 12 members, 8 of whom will be Members of Congress.  While Members of Congress on the Commission are welcome to provide advice and recommendations and to participate in the ceremonial activities of the Commission, they may not participate in matters involving the execution of the laws, consistent with the separation of powers and the Appointments and Ineligibility Clauses of the Constitution.

Second, section 4301 amends section 3 of the Migratory Bird Treaty Act (16 U.S.C. 704) to direct the Secretary of the Interior (Secretary) to adopt the recommendation of a regional migratory bird Flyway Council in establishing hunting seasons for certain migratory birds, “if the Secretary determines that the recommendation is consistent with science‑based and sustainable harvest management.”  The Flyway Councils are not composed of officers of the United States, raising constitutional concerns related to the manner of their appointment and removal.  To avoid these concerns, the Secretary shall not treat this provision as limiting his discretion to reject the recommendation of a Flyway Council when establishing hunting seasons, as permitted by the Act.


March 12, 2019.