Today, I have signed into law H.R. 1865, the “Further Consolidated Appropriations Act, 2020” (the “Act”), which authorizes appropriations to fund the operation of certain agencies in the Federal Government through September 30, 2020.
Certain provisions of the Act (such as Division J, sections 203 and 206) purport to restrict the President’s constitutional authority as Commander in Chief to control the personnel and materiel that the President believes to be necessary or advisable for the successful conduct of military missions. Other provisions of the Act (such as Division F, section 110, and language under the heading “Contributions for International Peacekeeping Activities”) purport to require the President to receive the recommendation of subordinates in the executive branch, or to provide advance notice to the Congress, before the President may direct certain military actions or provide certain forms of military assistance. The President’s constitutional authority as Commander in Chief is exclusive and cannot be made subject to such conditions. I reiterate the longstanding understanding of the executive branch that requirements of advance notice regarding military or diplomatic actions encompass only military actions for which providing advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to ensure national security.
Numerous provisions of the Act could, in certain circumstances, interfere with the exercise of the President’s constitutional authorities to articulate the position of the United States in international negotiations or fora (such as Division F, under the heading “Contributions for International Peacekeeping Activities”; Division G, sections 7010(c) and 7013(a); Division I, section 403; and Division J, sections 113(b), 143(a), 161(a)–(b), 203, 208, 403, 503, 504(b), 506(7), 903(b)(1)(C), and 7059), to receive ambassadors (such as Division G, section 7031(c)(1); and Division J, section 132), and to recognize foreign governments (such as Division G, section 7047(b)(2)(A); and Division J, section 112(c)). My Administration will treat each of these provisions consistent with the President’s constitutional authorities with respect to foreign relations, including the President’s role as the sole representative of the Nation in foreign affairs.
Division J, title VIII of the Act reauthorizes the United States Commission on International Religious Freedom, which comprises both congressional and Presidential appointees, as well as the Ambassador at Large for International Religious Freedom. Because this commission includes members appointed by the legislative branch, under the separation of powers it cannot be an executive branch entity, which must be subject to the supervision of the President under Article II. My Administration accordingly will treat the commission as a legislative branch entity, separate from the executive branch. The executive branch members of this Commission, including the Ambassador at Large, will remain accountable to the President in the exercise of their statutory responsibilities.
Division P, section 1603(b)–(c) of the Act purports to empower special agents under the Inspectors General for the Architect of the Capitol and the Government Publishing Office to execute warrants for search, seizure, and arrest, as well as to make warrantless arrests upon reasonable belief that a person is committing a felony. To comply with the separation of powers, these special agents, as employees within the Legislative Branch, must limit their use of these authorities to actions that aid in the exercise of the Congress’s constitutional functions.
Several provisions of the Act (such as Division J, sections 131(a)–(b), 162, 163(d), 164(a), and 903(b)(3)) purport to mandate or regulate the submission of certain executive branch information to the Congress or the public, including by mandating the declassification of certain information (Division J, section 902). In addition, certain provisions of the Act purport to prohibit the use of funds to deny an Inspector General access to agency records or documents (such as Division F, section 214(a)–(b); Division H, section 418). My Administration will treat these provisions consistent with the President’s constitutional authority to control the disclosure of information that could impair foreign relations, national security, law enforcement, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties, and to supervise communications by Federal officers and employees related to their official duties, including in cases where such communications would be unlawful or could reveal confidential information protected by executive privilege.
Division B, section 715 of the Act purports to prohibit the use of funds to recommend certain legislation to the Congress. Because the Constitution gives the President the authority to recommend to the Congress “such Measures as he shall judge necessary and expedient,” my Administration will continue the practice of treating provisions like these as advisory and non‑binding.
Numerous provisions purport, in certain circumstances, to condition the authority to spend or reallocate funds on the approval of congressional committees (such as Division B, sections 701, 702, 706, 716(a)–(c), and 726; Division C, sections 101(a)(3)–(5), 201(a)(3)–(7), and 301(e); Division D, section 301(e), 403, 409, and 426; Division F, sections 130, 201, 202, 218, 225, 229, 230, 231, and 248; Division H, section 188, 218, 231(b), and 406; and Division J, section 901(f)(2)) or on prior consultation with congressional committees (such as Division A, section 514(a)–(b); Division G, sections 7009(c)(1), 7009(f), 7032(i)(2), 7034(e)(3), 7034(j), 7034(o)(3), 7041(a)(3), 7041(c)(2), 7041(i)(4), 7041(k)(4), 7045(e)(2), 7048(f), 7050(e), 7052(b), 7058(b)(4), 7059(e), 7060(a)(2), and 7062(a); and Division J, sections 505(a)–(b), 510(b)(1), 510(c)(1), 510(c)(3), and 904(a)(3)). These are impermissible forms of congressional aggrandizement in the execution of the laws other than by the enactment of statutes. My Administration will make appropriate efforts to notify the relevant committees before taking the specified actions and will accord any recommendations of such committees all appropriate and serious consideration, but it will not treat spending decisions as dependent on approval or prior consultation with congressional committees.
DONALD J. TRUMP
THE WHITE HOUSE,
December 20, 2019.
