March 31, 2020
A COVID-19 Signing Statement from the Unaccountable President
Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus, The Ohio State University Moritz College of Law, and Distinguished Scholar in Residence, NYU Law. Member, ACS Board of Directors and ACS Board of Academic Advisors.
In addition to placing his signature on the Coronavirus Aid, Relief, and Economic Security (CARES) Act, President Donald J. Trump issued a March 27 signing statement that confirms two things: He remains convinced of a largely mythical conception of his Article II powers that renders the executive branch all but unaccountable to Congress. And he cannot be trusted to stand behind those Administration officials who negotiate on his behalf.
The most politically provocative claim Trump makes is that the new Special Inspector General for Pandemic Recovery will not issue reports to Congress “without the presidential supervision required” by Article II of the Constitution. The requirement of supervision supposedly inheres in the President’s obligation “to take care that the laws be faithfully executed.”
The CARES Act imposes a specific reporting duty on the Special Inspector General that is the focus of Trump’s objection. The Act authorizes the Special Inspector General to request information or assistance from any department, agency, or other entity of the federal government. Should the Special Inspector General request information or assistance that is “in the judgment of the Special Inspector General, unreasonably refused or not provided,” the Special Inspector General will be required to “report the circumstances to the appropriate committees of Congress without delay.”
A moment’s reflection reveals why the President’s signing statement actually turns the “Take Care” obligation on its head. The CARES Act explicitly requires the Special Inspector General to report agency noncooperation to Congress “without delay.” By definition, “faithful” execution of this—or any—law requires that implementation be diligent, honest, and consistent with the limits of the law. To bar or even to postpone the required reports to Congress in the name of presidential supervision would be the exact opposite of carrying out the letter of the law. It would be faithless execution.
What the signing statement seeks to invoke is a conception of executive power that entitles the President to control how every officer of the executive branch exercises whatever legal discretion Congress has vested in that officer. It is the vision now-Attorney General William Barr set forth in his June 2018 letter to two Justice Department officials regarding Robert Mueller’s investigation of Russian interference in the 2016 presidential election. It is a theory Barr has championed throughout his government service, including in a 1989 memo entitled, “Common Legislative Encroachments On Executive Branch Authority,” which he wrote as head of the Justice Department’s Office of Legal Counsel. Under that theory, “the President alone constitutes the Executive branch,” and any delegation of decision making authority to anyone in the executive branch is, constitutionally speaking, a delegation of power that the President alone controls.
This conception of the presidency would have shocked the founding generation. The very first Congress, which included over half of the Constitution’s signatories, imposed tight controls over the nation’s finances and significant reporting obligations to Congress. George Washington, who had presided over the Constitutional Convention, signed these provisions into law without any apparent objection from Alexander Hamilton, among the Framers most protective of executive power.
An Act of September 2, 1789 created the new Department of the Treasury and provided for a number of statutory officers, including, of course, the Secretary. Among the Secretary’s legal responsibilities was a “duty” to “make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.” Hamilton, as the first Treasury Secretary, was so engaged in this reporting activity that, during his tenure, the House of Representatives did not bother having its own Ways and Means Committee. No one deemed his reporting obligation to be an infringement on presidential authority.
The First Congress’s belief in a legislature’s special tie to the treasury, and the treasury’s reciprocal obligation of accountability, was not an idiosyncratic constitutional view. Almost all the states that drafted constitutions around the time of the federal Constitution excluded the state’s treasurer from close gubernatorial supervision and made the treasurer subject to legislative control. This singling out of state treasurers for legislative appointment confirms the late eighteenth century view that requiring financial overseers to report to Congress was not viewed as intrusion into executive power.
Trump’s topsy-turvy view of his faithful execution obligation, however, is fully consistent with other claims made in his signing statement limiting any required communication with Congress. Trump’s view—like Barr’s—is that Congress has no right to mandate any conditions at all with regard to how a president exercises Article II power. Thus Trump’s statement objects as well to the requirement of consultation with members of Congress regarding the selection of an executive director and deputy executive director of a new Pandemic Response Accountability Committee. Trump objects, even though the requirement of “consultation” literally imposes no obligation of acquiescence in Congress’s preferences.
Trump also objects to provisions of the CARES Act that require the Secretaries of Education, and of Health and Human Services, to make reports to Congress recommending possible changes to legislation. Trump insists no such requirements can be binding because the Constitution authorizes only the President to recommend to the “consideration” of Congress “such Measures as he shall judge necessary and expedient.” Again, there is literally no conflict between the CARES Act and the Constitution. The secretaries are not barred from clearing their recommendations with the president. This is objecting just for the ritual of objecting.
By way of contrast, consider that the immediate model for oversight of the CARES Act’s Coronavirus Relief Fund is the Troubled Assets Relief Fund enacted through the Economic Stabilization Act of 2008. President George W. Bush, whose enthusiasm for signing statements exceeded those of all his predecessors combined, signed the TARP statute into law without any signing statement at all.
But the potential damage wrought by a signing statement like Trump’s goes beyond the mere utterance of dubious constitutional theorizing or inventing conflicts where none are posed. Oversight of the Coronavirus Relief Fund was a critical point of contention between Democrats and Republicans in Congress in negotiating the terms of the CARES Act. On behalf of the administration, Treasury Secretary Steven Mnuchin signed off on that agreement. The President's insistence that he can now limit how the Special Inspector General reports to Congress says, in effect, that no one but Trump can speak for Trump. Administration sign-off on a compromise is not final if he does not want it to be, even if he cleared that signoff.
Such presidential waffling is accountable neither to the law, nor to the demands of good governance. Senate Republicans should be no less alarmed than Senate Democrats at what could be viewed as presidential duplicity. The CARES Act will not be the final piece of legislation Congress will be required to enact to help America through its current crisis. Yet getting to yes on any future deal will be immeasurably harder if the president plays fast and loose with the Constitution and with negotiators.