The bill to impose sanctions on Russia for meddling in the 2016 election—which already has been approved by the Senate and passed the House by a 419-3 margin yesterday afternoon—is unconstitutional. Unnecessarily unconstitutional. Indeed, the bill’s unconstitutionality is so gratuitous that one wonders whether it resulted from a mere oversight or whether it reflects a concerted effort to expand legislative authority at a time when the executive is reeling.

Harvard constitutional law scholar (and Take Care contributor) Laurence Tribe wrote on Twitter yesterday morning: “Somebody had better review S.341 more closely than I've had time to do to make sure it’s NOT written as a de facto legislative veto.” While expressing support for the sanctions policy, Tribe said he worried that “the part giving a vetoed joint resolution legal effect without a veto override” violated the Supreme Court’s 1983 holding in Immigration and Naturalization Service v. Chadha.

S. 341, introduced by Senator Lindsey Graham in February, has gone nowhere, but S. 722, introduced by Senator Bob Corker, sailed through the Senate by a 98-2 margin in June. And Corker’s bill does indeed violate the Supreme Court’s holding in Chadha, as does the version that passed the House yesterday.

The problematic portion in both the House and Senate versions is numbered section 216 and titled “Congressional Review of Sanctions Imposed With Respect to the Russian Federation.” That section says that if the president seeks to waive or terminate sanctions against Russia, he must submit a report to the House and Senate, which then have 30 days to respond. The president cannot waive or lift sanctions during those 30 days without congressional approval.

So far so good. The Constitution gives Congress the power “[t]o regulate commerce with foreign nations”; Russia is a foreign nation; and this is a pretty plain-vanilla regulation. It’s the next part of section 216 where the bill runs into trouble.

The next part of section 216 says that if the House and Senate pass a joint resolution disapproving of the president’s proposed action, the president may not take that action for 12 calendar days following the passage of the joint resolution. Moreover, if the president then vetoes the joint resolution of disapproval, he must hold off on the proposed action for an additional 10 calendar days.

Why is that a problem? The Constitution’s presentment clause says that before a bill or resolution that passes the House and Senate can become law, it must be presented to the president. He then has 10 days to decide whether to veto it, excluding Sundays. If the president does exercise his veto power, then the measure can become law only if two-thirds of the House and Senate vote to override the president’s veto. And as the Supreme Court held in Chadha,this presentment requirement generally applies to any congressional action that “alter[s] the legal rights, duties, and relations of persons . . . outside the Legislative Branch.”

Section 216 plainly violates Chadha and the presentment clause. To see how, imagine that on September 1, President Trump proposes lifting sanctions against Russia and sends the requisite report to Congress. If Congress does not act, sanctions will be lifted on October 2.

Now imagine that on October 1, Congress passes a joint resolution disapproving of the president’s proposal. Let’s say that the resolution passes 218-217 in the House and 51-49 in the Senate. Under section 216, that means the sanctions remain in place through October 13, plus 10 more days after a presidential veto.

So the passage of the joint resolution by a simple majority vote on October 1 would alter the legal rights, duties, and relations of persons outside the legislative branch from October 2 through October 13. If not for the joint resolution, sanctions would be lifted, allowing Americans to engage in various transactions with Russia. The joint resolution changes that.

But recall that under the presentment clause, Congress cannot change the law without presenting a bill to the president and either having him sign it or overriding his veto. And yet that is exactly what section 216 purports to allow Congress to do. It allows Congress to alter the legal landscape for 12 days (plus possibly 10 more) with a simple majority vote and without the president’s signature.

And to what end? Just to delay the lifting of sanctions against Russia by a matter of days or weeks?

Here are two theories to explain why the House and Senate drafters might have added this unconstitutional provision.

The first—and more innocuous—theory is that the drafters wanted to preserve Congress’s opportunity to override a presidential veto. But that would have been easy enough to do without running afoul of the presentment clause.

The drafters could have said that if the president wants to waive or terminate sanctions against Russia, he must submit a report to Congress and then wait 52 days. That would have provided 30 days for the House and Senate to pass a joint resolution of disapproval, plus 12 days (assuming two Sundays in there) for the president to decide whether to veto, plus 10 more days for the House and Senate to override a presidential veto—exactly as under the current draft. There would be nothing unconstitutional about that, because at no point would any legal rights, duties or relations change as a result of a simple majority vote of the House and Senate.

The second—and more insidious—possibility is that House and Senate are taking advantage of the sitting president’s weakness in order to extend their legislative power and push back against the Supreme Court’s Chadha holding. Moreover, the drafters likely know that this power grab probably won’t face legal challenge: after all, it affects matters for only about three weeks at most, and who is going to litigate just so that sanctions are lifted three weeks sooner? By the time the litigation is through, the issue will be long since moot.

For individuals and firms who want to resume trading relations with Russia as soon as possible, the delay is little more than a nuisance. But for our system of checks and balances, it may be something more than that. The Russia bill tilts the balance of power between the executive and legislative branches ever so slightly toward the latter, at a time when the executive branch seems ill-equipped to push back. In one more way, the president who would “Make America Great Again” manages to make his office smaller than it once was.

Cross-posed on Notice & Comment          

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