LETTER FOR REPS
Subject: Urgent Concerns Regarding Constitutional Violations in the National Defense Authorization Act for Fiscal Year 2026 (S. 1071)
Dear State Representatives, Attorneys General, Governors, and Congressional Personnel,
I am writing to express profound concern over specific provisions in the National Defense Authorization Act for Fiscal Year 2026 (S. 1071), which has been enacted as Public Law No: 119-60. These provisions impose undue restrictions on the President's constitutional authority as Commander in Chief of the Armed Forces, as outlined in Article II, Section 2 of the United States Constitution. Such encroachments undermine the Executive Branch's ability to direct military strategy, deployments, and national security policy with the flexibility required to respond to dynamic global threats. Below, I detail each implicated section, providing context from the bill and explaining how it contravenes presidential powers, with references to relevant constitutional provisions.
Section 1249: Oversight of United States Military Posture in Europe This section requires oversight and reporting on U.S. military posture in Europe, including assessments of force structure, basing, and readiness. It prohibits reductions below 76,000 forces for over 45 days, divestment or return of land/facilities as of June 1, 2025, or movement of equipment valued over $500,000 without certification of national security interest, NATO consultations, and impact assessments. This violates Article II, Section 2, which vests the President with authority as Commander in Chief to command and deploy armed forces. By mandating congressional certifications and consultations for routine military adjustments, it handicaps the President's discretion in foreign affairs and military operations, potentially delaying responses to emerging threats and infringing on the Executive's plenary power over troop deployments as recognized in cases like United States v. Curtiss-Wright Export Corp. (299 U.S. 304, 1936).
Section 1268: Oversight of United States Military Posture on the Korean Peninsula This provision establishes oversight and reporting requirements for U.S. forces on the Korean Peninsula, mandating a minimum of 28,500 troops in the Republic of Korea and prohibiting reductions or deviations from wartime operational control transition plans without certification, ally consultations, and impact assessments. It contravenes Article II, Section 2 by restricting the President's authority to reposition forces as Commander in Chief, thereby limiting executive flexibility in alliance management and deterrence strategies against North Korean threats. Such statutory thresholds encroach on the President's inherent power to conduct foreign relations and military affairs without legislative micromanagement.
Section 1507: Prohibition on the Elimination of Certain Cyber Assessment Capabilities for Test and Evaluation This section prohibits the elimination or reduction of specific cyber assessment capabilities within the Department of Defense. By imposing a blanket prohibition, it violates Article II, Section 2, as it curtails the President's ability as Commander in Chief to reorganize and prioritize defense resources, including cyber capabilities, in response to evolving national security needs. This legislative directive interferes with executive discretion in managing military readiness and technological assessments.
Section 1546: Limitation on the Divestment, Consolidation, and Curtailment of Certain Electronic Warfare Test and Evaluation Activities This provision limits divestment, consolidation, or curtailment of electronic warfare test activities until a report, independent review, and certification are provided to congressional committees. It impedes Article II, Section 2 powers by requiring congressional approval mechanisms for internal defense reorganizations, thereby handicapping the President's authority to streamline military testing and evaluation programs as Commander in Chief.
Section 1655: Matters Related to Integrated Air and Missile Defense Capabilities to Defend Guam This section addresses funding and integration for missile defense systems on Guam, prohibiting the obligation of FY2026 funds for removals without notice and limiting funds for certain travel until briefings are provided. It violates Article II, Section 2 by conditioning executive actions on congressional notifications and briefings, restricting the President's discretion in deploying and maintaining defensive systems as Commander in Chief and in managing foreign policy related to Pacific alliances.
Section 1635: Organizational Realignment with Respect to Office of the Assistant Secretary of Defense for Nuclear Deterrence, Chemical and Biological Defense Policy and Programs; Limitation on Availability of Certain Funds This provision requires realignment of offices for nuclear deterrence and limits funds for travel until compliance certification and briefings. It contravenes Article II, Section 2 by mandating specific organizational structures within the Executive Branch, thereby infringing on the President's authority to structure the Department of Defense and manage nuclear policy as Commander in Chief.
Section 1638: Limitation on Availability of Funds Pending Notification of Tasking Authority Delegation This section limits funds for Air Force travel until notification of delegation completion and requires reports on Coast Guard skills. By tying funding to notifications, it violates Article II, Section 2, handicapping the President's ability to delegate authorities and manage interagency tasks as head of the Executive Branch.
Section 552: Inclusion of Space Force Education Programs in Definitions Regarding Professional Military Education This provision amends definitions to include Space Force programs in professional military education and imposes requirements on aids to navigation. It impedes Article II, Section 2 by legislatively dictating educational structures within the military, limiting the President's discretion as Commander in Chief to define training and education priorities.
Section 565(b): Notification of Military Sex Offenders at Military Installations This subsection requires notifications about sex offenders and amends policies on misconduct at academies. It violates Article II, Section 2 by imposing mandatory reporting and policy requirements that constrain the President's management of military personnel and installations as Commander in Chief.
Section 589D(c)(2): Pilot Program to Increase Payments for Child Care Services in High-Cost Areas This subparagraph specifies requirements for a pilot program's second phase, including evaluations. It contravenes Article II, Section 2 by micromanaging executive pilot programs for military welfare, limiting presidential discretion in administering benefits and support systems.
Section 652: Defense Commissary System and Exchange System: Patronage; Privatization This section amends provisions on patronage and privatization in commissary systems and requires record retention. It handicaps Article II, Section 2 powers by restricting decisions on military support systems, infringing on the President's authority to manage logistical and welfare aspects of the armed forces.
Section 912(g)(3): Joint Interagency Task Force 401 This subparagraph addresses reporting for interagency coordination and requires reviews of memoranda. It violates Article II, Section 2 by mandating interagency structures, limiting the President's flexibility in coordinating national security task forces.
Section 1253(f): Partnership for Indo-Pacific Industrial Resilience This subsection requires reports on Indo-Pacific partnerships and lighthouse lists. It impedes Article II, Section 2 by requiring executive reporting on foreign partnerships, encroaching on the President's treaty-making and foreign affairs powers.
Section 1692(c)(2): Prohibition on Access to Department of Defense Cloud-Based Resources by Certain Individuals This subparagraph specifies exceptions to access prohibitions. It contravenes Article II, Section 2 by legislatively controlling access to defense resources, restricting presidential management of information security.
Section 1828(c)(4): Review of Commercial Products and Commercial Services Acquisition Approach This subparagraph mandates cost analyses for acquisitions. It violates Article II, Section 2 by dictating procurement processes, limiting the President's authority over defense acquisitions as Commander in Chief.
Section 1833(e): Bridging Operational Objectives and Support for Transition Program This subsection requires reporting on program effectiveness. It handicaps Article II, Section 2 powers by imposing oversight on transition programs, infringing on executive operational discretion.
Section 2887(e): Pilot Program on Use of Advanced Manufacturing Construction Technologies at Military Installations This subparagraph specifies evaluation requirements for a pilot program. It impedes Article II, Section 2 by micromanaging infrastructure pilots, limiting presidential control over military installations.
Section 2888(f): Pilot Program on Procurement of Utility Services for Installations of the Department of Defense through Areawide Contracts This subsection mandates reports on program outcomes. It violates Article II, Section 2 by requiring evaluations that constrain executive procurement decisions.
Section 311: Inclusion of Information About PFAS Investigation and Remediation in Annual Report on Defense Environmental Programs This section requires PFAS-related details in annual reports. It contravenes Article II, Section 2 by mandating environmental reporting, encroaching on presidential management of defense programs.
Section 3123: Department of Energy Report on Expansion of Other Transaction Authorities for National Nuclear Security Administration This provision requires reports on expanding authorities for NNSA. It handicaps Article II, Section 2 powers by dictating nuclear security administration, limiting executive discretion.
Section 7262: Not Explicitly Titled (Division G Coast Guard Provisions) This section addresses Coast Guard authorizations and policies on drug trafficking. It violates Article II, Section 2 by imposing policies on maritime interdiction, infringing on presidential command over Coast Guard operations.
Section 7277: Retention of Certain Records (Division G Coast Guard Provisions) This provision mandates record retention. It impedes Article II, Section 2 by controlling administrative aspects of the Coast Guard under presidential authority.
Section 7511(a): Covered Misconduct (Division F Intelligence Provisions) This subsection authorizes intelligence appropriations and amends misconduct policies. It contravenes Article II, Section 2 by dictating intelligence community management.
Section 8202(a)(2): PROTECT Our Children Act of 2008 Reauthorization (Division G Coast Guard Provisions) This subparagraph modifies talent exchange programs. It violates Article II, Section 2 by restricting personnel exchanges in defense acquisition.
Section 8521: Prohibition and Notification on Investments Relating to Covered National Security Transactions (Division G Coast Guard Provisions) This section enhances supply chain resilience and amends maritime laws. It handicaps Article II, Section 2 powers by imposing investment prohibitions that affect national security policy.
Title XXXI, Section 3111: Organization and Codification of Provisions of Law Relating to Atomic Energy Defense Activities This section codifies atomic energy defense laws. It impedes Article II, Section 2 by reorganizing energy defense activities, limiting presidential control over nuclear programs.
These provisions collectively represent an overreach by Congress into the Executive's domain, potentially violating the separation of powers under Article II. I urge immediate review and consideration of amendments to restore constitutional balance.
In closing, I draw upon the wisdom of President George Washington's Farewell Address, where he cautioned against the dangers of partisan divisions and entangling foreign alliances: "The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension... is itself a frightful despotism." He further warned, "The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible... It is our true policy to steer clear of permanent alliances with any portion of the foreign world." These timeless words remind us that excessive partisanship and foreign entanglements can undermine national unity and executive efficacy, much as these NDAA provisions risk doing today.
Sincerely,
