47

Earlier today U.S. President Donald J. Trump signed into law H.R. 3364, the "Countering America's Adversaries Through Sanctions Act."

Among other things, this law is known for enforcing additional sanctions on Russia.

In a statement to the press (available here) written after signing this law, President Trump's sentiments were expressed thus (emphasis added):

While I favor tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia, this legislation is significantly flawed.

In its haste to pass this legislation, the Congress included a number of clearly unconstitutional provisions. For instance, although I share the policy views of sections 253 and 257, those provisions purport to displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry.

Additionally, section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process. The bill prescribes a review period that precludes the President from taking certain actions...(continued)

Looking at the statement the President seems to have had multiple reservations about this law.

Consequently why did he not veto it?

  • One thing to consider is that a president is free to ignore any part of a law if the president believes that part of the law is unconstitutional, until a federal court orders otherwise. – phoog Aug 9 '17 at 8:57
54

In addition to the problem of veto-proof majorities the others have noted, there's another factor: he can always choose to selectively not enforce or otherwise comply with the portions of the law he deems unconstitutional. Thus he can keep the portions of the law he says he does agree with, while ignoring the allegedly unconstitutional parts (he is obliged to adhere to parts that are constitutional, even if he disagrees with them).

If you look up Zivotofsky v. Kerry, this case originates from a law signed by George W. Bush, portions of which he felt were unconstitutional. He simply refused to enforce or otherwise comply with those portions, and this case was the result of that refusal (which was maintained by the Obama administration, during which the suit actually happened). The Supreme Court ultimately upheld the President's position.

So Trump can simply opt to ignore or otherwise not enforce certain provisions of the law he thinks are unconstitutional and let it eventually get resolved by the courts (which might not even happen during his administration, due to the particulars necessary to successfully bring a suit in the first place if nothing else). Until court decisions try to force the matter otherwise, the law would basically function in whatever way he says it does.

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    Zivotofsky V Kerry wasn't a case about selective enforcement by the Executive branch as it is being presented. This was a case about the Legislature's (in)ability to override a power explicitly granted to President in the Constitution. The Supreme Court ruled that: "The President has the exclusive power to grant formal recognition to a foreign sovereign. Because the power to recognize foreign states resides in the President alone, ...the Foreign Relations Authorization Act, Fiscal Year 2003 infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem" – A Bailey Aug 3 '17 at 19:29
  • @ABailey The law in question required that passports be issued with the birth location listed as "Jerusalem" when requested under certain conditions. The President told them not to do that because that's the part that was deemed unconstitutional (believing it constituted formal recognition of a foreign sovereign), and eventually someone's request was denied and they filed suit for violation of the law. The courts hadn't decided the law was unconstitutional until after it was intentionally not complied with. – zibadawa timmy Aug 4 '17 at 5:34
  • @zibadawatimmy I am confused here. Why would it be a problem to list "Jerusalem" as birth location? Wouldn't it only be problematic if one wanted either "Jerusalem, Israel" or "Jerusalem, Palestine" or something like that? – Hagen von Eitzen Aug 4 '17 at 8:35
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    @HagenvonEitzen Essentially, the law would allowed American Citizens born in Jerusalem to have their passport say "I was born in Israel". It's been a long standing US policy to not acknowledge any claims to Jerusalem's sovereignty as a way to stay neutral in helping to broker a peaceful resolution. This law would have required the US (at least in some small way) that Jerusalem is a part of Israel. In the US, the power to recognize foreign states is explicitly and solely reserved for the President – A Bailey Aug 4 '17 at 12:55
  • @HagenvonEitzen I mispoke, sorry, and mixed up the use of Jerusalem and Israel in the issue. Citizens born in Jerusalem were allowed by the law to declare "Israel" as the birthplace on their passport. The plaintiffs had both "Jerusalem, Israel" and simply "Israel" denied due to Bush's stance. The Supreme Court ruling officially struck down this this option from law (the President could always choose to allow it on his own, though), meaning such citizens had to have their birthplace listed as Jerusalem, as before. – zibadawa timmy Aug 6 '17 at 4:39
35

The presidential veto powers are not unlimited. In particular, Congress can override it if 2/3 of the members of each chamber vote to do so.

The bill has been adopted with overwhelming majorities in both the Senate and the House of Representatives (so-called “veto-proof majority”). One concern could therefore be that vetoing the bill would simply result in Congress passing it anyway, humiliating Trump and again feeding the controversy around the president's attitude towards Russia.

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    How come there's no controversy around Trump's attitude towards North Korea? – Dmitry Grigoryev Aug 4 '17 at 14:28
  • @DmitryGrigoryev: Much smaller fish in a very large pond. – tonysdg Aug 4 '17 at 16:14
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    @DmitryGrigoryev No idea and I am not sure I see the link between this and this Q&A. – Relaxed Aug 4 '17 at 19:58
27

When the President vetoes a bill, Congress can force it into law by voting it again with a 2/3 majority.

Practice is so that when there's a strong likelihood of that happening, POTUS usually spares itself the humiliation of getting overridden and just signs it.

This particular bill passed with 419-3 in the House, and 98-2 in the Senate.

6

Presidential vetos are no longer generally regarded as the appropriate tool for dealing with unconstitutional laws; instead, the Supreme Court has become the sole determinant of constitutionality. Examples from the previous Republican administration:

McCain-Feingold:

President Bush signed the law despite "reservations about the constitutionality of the broad ban on issue advertising." He appeared to expect that the Supreme Court would overturn some of its key provisions.

The Federal Telephone Excise Tax

Treasury Secretary John W. Snow stated in a prepared release, "Today is a good day for American taxpayers; it marks the beginning of the end of an outdated, antiquated tax that has survived a century beyond its original purpose, and by now should have been ancient history." Snow also called on the United States Congress "to terminate the remainder of this antique tax by repealing the excise tax on local service as well."

Note that this is a Cabinet secretary praising a Supreme Court decision that his department lost!

The modern attitude seems to be "pass / enforce it all and let the Supreme Court sort it out".

1

İn short, not enough reasons to veto.

He is clearly not against it, he states it's flawed, also it's an effort but it's not adequate. Being somewhat flawed and a little bit shorter than adequate is not enough for veto.

0

The other answers didn't cover the political aspects of this, but there's a high chance that it was also political optics.

Given that Trump's opponents keep harping on "Russian collusion" story and treat every single fact that has anything to do with Russia through the lens of their pareidolia; vetoing this bill would be 100% guaranteed to be interpreted not as "veto on constitutional grounds" but "doing Putin's bidding" by our mass media who is all-knowing and can read people's minds. That would politically harm Trump, while not doing anything useful for him due to veto-proof majorities.

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    I'd like to believe this as it would lead me to believe Trump can connect the dots better than he has shown thus far. :) – user1530 Aug 3 '17 at 15:43
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    Downvoting because your point, that vetoing the bill could be perceived as a pro-Putin move while in the midst of an investigation into Russian meddling and possible collusion by the Trump campaign, could have been made without your personal opinions of whether that investigation and associated questions are valid. At least you didn't say "witch hunt" – jalynn2 Aug 3 '17 at 16:54
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    I generally agree with Alexander here. There is more to quality writing than just getting the facts straight. This answer--which is otherwise solid--is marred by the overflowing, unnecessary sarcasm. The way it is written makes it a low quality post, and I believe it does deserve the downvotes. Heeding the advice here and rewording the answer to use a neutral tone would change my mind and earn an upvote from me. – GrandOpener Aug 3 '17 at 19:27
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    @GrandOpener - translation: 'my personal politics disagrees with assertions in the answer so I'll call it "sarcasm" and "bad quality writing" to have an excuse to downvote'. Typical. There was nothing in the answer that wasn't neutral - the fact that Trump's opponents actively misinterpret any possible thing on the topic in the worst possible light is an objective fact, not sarcasm. – user4012 Aug 5 '17 at 10:06
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    @user4012 You said, "our mass media who is all-knowing and can read people's minds..." Unless you truly, honestly believe that the media is comprised of omniscient mind-readers, that is sarcasm. I'm calling it sarcasm because it is sarcasm. Whether your politics agrees with mine doesn't matter. I actually think you have the core of a really good answer here if you'd just reword it to use a more neutral tone. If you like, I'd be happy to give specific advice on better word choice in places where you've used charged and biased language. – GrandOpener Aug 5 '17 at 20:04

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