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Today, I have signed into law S. 2372, the “John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018” or the “VA MISSION Act of 2018” (the “Act”).

Section 152(a) of the Act, would add a provision, 38 U.S.C. 1703E(g)(2)(B)(iii), that purports to require the Secretary of Veterans Affairs (the “Secretary”) to obtain the approval of the chairmen of two congressional committees before expending more than $50 million of appropriated funds in a fiscal year on certain pilot programs.  Under the separation of powers, the Congress may not make the approval of members of Congress a precondition to the execution of the law.  Accordingly, I direct the Secretary to treat section 1703E(g)(2)(B)(iii) as advisory and non-binding while still heeding section 1703E(g)(2)(B)(ii), which requires the Secretary to notify the congressional committees before exceeding the spending cap.

Section 202(c)(2) of the Act would require the President to consult with members of Congress on the appointment of the members to the Asset and Infrastructure Review Commission (the “Commission”), an executive branch entity.  After reviewing recommendations of the Secretary regarding modernization and realignment of facilities of the Veterans Health Administration, the Commission will make recommendations for the President’s approval or disapproval.  I anticipate that I will be able to consult with members of Congress on these appointments and will welcome their input, but a requirement to consult with the Congress in executive decision-making violates the separation of powers, including where the Congress has vested the President alone or a department head with authority to make appointments.  I will accordingly treat this provision as hortatory but not mandatory.

Section 203(b)(6) and (c)(4) purport to require the Commission to make all information used in developing its recommendations to the President available to the Congress and the Comptroller General.  Section 202(h)(5) purports to require all Federal agencies to make available to the Commission any information it considers necessary to perform its duties.  My Administration will treat these provisions consistent with the President’s constitutional authority to withhold information which could impair foreign relations, national security, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties.


June 6, 2018.