The bill to impose sanctions on Russia for meddling in the 2016 election—which passed the Senate by a 98-2 vote in June and passed the House by a 419-3 margin this 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.
Larry Tribe wrote on Twitter this morning that “[s]omebody had better review” the Russia sanctions legislation to make sure it doesn’t include an unconstitutional legislative veto. He’s right—and it does. The problematic portion of the bill—which appears in 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.
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