Notice & Comment

Trump’s Signing Statement on the Consolidated Appropriations Act of 2017 Is Likely Unconstitutional, by Sam Wice

Many of President Trump’s objections to the Consolidated Appropriations Act of 2017 are likely unconstitutional. The 708-page act funds the government for the remainder of the fiscal year and includes multiple restrictions on how President Trump can spend money, otherwise known as “riders.” In a signing statement, President Trump took issue with 76 of these restrictions on spending money because he believes that they curb his powers as President.

Even if the restrictions curb the President’s general power to set foreign relations, enforce the laws, or act as commander in chief, President Trump must generally follow the restrictions because of the Appropriations Clause of the Constitution. To demonstrate how generally President Trump cannot just ignore the restrictions, I will examine more closely the restriction regarding prosecuting medical marijuana that is legal under state law.

The Consolidated Appropriations Act of 2017 continues the existing spending restriction that “[n]one of the funds made available in this Act to the Department of Justice may be used . . . to prevent [states] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” President Trump objected to the restriction in his signing statement and stated, “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.”

Although President Trump does not outright say so, I take his statement to mean that he believes he could ignore the restriction. The restriction is a blanket prohibition on prosecuting legal (under state law) medical marijuana. If President Trump objects to following the restriction, the only other option is to not follow it.

Despite President Trump having the power to enforce the laws, he must adhere to the restriction on prosecuting medical marijuana. The Appropriations Clause states that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Supreme Court has interpreted the clause to mean that “[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury.” As applied to this restriction, under identical language as in the current appropriations act, the Ninth Circuit has already determined that “if DOJ were spending money in violation of [of the prohibition on prosecuting medical marijuana that is legal under state law], it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” The Ninth Circuit directed the applicable district courts to dismiss the cases where the defendant acted consistently with state medical marijuana laws.

Thus, the Department of Justice must follow the restriction and can only enforce federal marijuana laws when they do not conflict with state medical marijuana laws. If President Trump ignores the restriction, a court would be required to dismiss the illegal prosecution. Likewise, President Trump’s similar objections to other restrictions in the Consolidated Appropriations Act of 2017 would likely be found unconstitutional under the Appropriations Clause because Congress has the ultimate power to determine how money is spent.


Sam Wice is a former analyst at the Congressional Budget Office and a former Council member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He may be reached at sam.wice[at]

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