Statement on Signing the National Defense Authorization Act for Fiscal Year 1987

November 14, 1986

I have signed into law S. 2638, the National Defense Authorization Act for Fiscal Year 1987. I am both pleased and disappointed with this act. I am pleased that it supports a defense program that is consistent with the dollar level provided in the congressional budget resolution for fiscal year 1987. I am disappointed, however, that the funding levels proposed in the congressional budget resolutions for the past 3 years have decreased continually and that even those lower levels have not been fully appropriated. As a result, some of our significant accomplishments over the past few years in rebuilding America's military strength may have been put in jeopardy. Two consecutive years of real decline in defense budgets will widen the gap between our military capabilities and our national security requirements. The past erratic patterns of funding for our national defense that we have sought to avoid are again a reality, resulting in program stretchouts, increased acquisition costs, and instability in defense planning. I intend to work closely with the new Congress to enact a 2-year defense program for fiscal years 1988 and 1989, as required by current law. I believe that this 2-year budgeting initiative will lead to the stability so necessary to proper management of our defense requirements.

I am particularly pleased with the provisions in the act that:

-- approve 12 MX test missiles and authorize funding to proceed with research and development on survivable basing modes;

-- authorize funds to continue research and development on the small intercontinental ballistic missile recommended by the Scowcroft commission;

-- approve the full amount requested for the advanced technology bomber and the advanced cruise missile;

-- allow actual production of part of our needed modern chemical weapons deterrent capability, 155 mm binary artillery rounds;

-- fully fund the request for air-defense fighter competition;

-- adopt several administrative options that will allow the Department to reduce outlay levels in fiscal year 1987; and

-- approve construction of a Trident submarine and fund homeporting initiatives for Everett, WA, and Staten Island, NY.

I am concerned, however, that this legislation includes:

-- a reduction of $1.8 billion, or 34 percent, for the Strategic Defense Initiative program, which is our path to a safer future;

-- restrictive general provisions, including a ban on ASAT testing against objects in space and denial of BIGEYE bomb production before October 1, 1987;

-- reductions in procurement quantities to F - 15, F - 16, and F - 18 tactical fighter aircraft programs; and

-- reductions in procurement quantities of such critical programs as the Bradley Fighting Vehicle, AMRAAM, and C - 17 Transport.

I am also extremely disappointed that the Congress saw the need to legislate the reorganization of the Special Operations Forces, particularly in mandating the creation of a unified command, which has heretofore been the exclusive prerogative of the President as Commander in Chief.

With regard to arms control, this act includes a nonbinding sense of the Congress provision concerning continued United States compliance with certain provisions of SALT II. In addition, it includes a sense of the Congress statement that it is not in the national interest of the United States to continue compliance with an agreement the Soviet Union has clearly violated. In accordance with international law, and specifically with regard to SALT II, the United States cannot accept the principle that the Soviet Union is free to select which provisions of an agreement it will adhere to and which ones it will violate. I wish to reaffirm that, as the United States concentrates on achieving dramatic reductions in United States and Soviet nuclear arsenals at Geneva, we will continue to exercise utmost restraint even as we undertake the appropriate, proportionate responses required by Soviet actions.

In addition, there are other features of the act that trouble me. Sections 921(d) and 1207 of the act require the Department of Defense to make efforts to expand participation in the procurement process by small business concerns owned and controlled by socially and economically disadvantaged individuals and to establish a contracting goal for such concerns and for historically black colleges and universities and certain minority institutions. I have signed this act on the understanding that those objectives will be pursued in a race-neutral manner, consistent with constitutional standards. These standards require that any implementation of these provisions be premised on findings of actual discrimination in the granting of defense contracts and be narrowly tailored to remedy such discrimination. Thus, the Secretary's authority under the act must be read with constitutional requirements in mind.

Section 1370 of the act calls for access by the Secretary of Defense to all nonproliferation information that the Secretary of State or the Secretary of Energy has or is entitled to have, with the exception of certain intradepartmental communications. I must consider this section to be advisory, since if it were construed otherwise, it would intrude on my constitutional responsibilities to direct and supervise officers of the executive branch and to control the dissemination of sensitive national security information. The Secretary of Defense has certain statutory responsibilities with respect to nuclear proliferation that would be served by his receipt of appropriate nonproliferation information. The sharing of appropriate information on nuclear nonproliferation will be resolved through the normal interagency process in the executive branch.

Section 1404 of the act establishes the Barry Goldwater Scholarship and Excellence in Education Foundation to award scholarships and fellowships to eligible persons for study in the fields of science and mathematics. I welcome the participation of Members of the House and Senate, who will constitute 4 of the 13 members of the Board of Trustees of the Foundation. However, the doctrine of separation of powers necessarily restricts their participation on the Board to ceremonial or advisory functions, rather than matters involving administration, which may only be performed by executive officers. Moreover, under the Incompatibility Clause of the Constitution, any Member of Congress appointed to serve on the Board of Trustees may serve only in a ceremonial or advisory capacity.

Sections 3121 and 3123 of this act purport to authorize congressional committees to waive all or part of report-and-wait periods otherwise required with respect to certain reprogrammings or obligations of funds. As I have noted before, committee waiver provisions such as these do not conform to the requirements for legislative action articulated in INS v. Chadha, 462 U.S. 919 (1983), since they would authorize committees of the Congress, without participation by both Houses of Congress and the President, to allow the Department of Energy to implement proposed reprogrammings or obligations prior to expiration of the otherwise required waiting period. Once again, I strongly urge the Congress to discontinue the inclusion of such devices in legislation, because after Chadha they only introduce confusion and ambiguity into the process by which the Executive's obligations are discharged.

Despite the above concerns, I believe that this legislation as a whole represents a positive step toward strengthening our national defense.

Note: S. 2638, approved November 14, was assigned Public Law No. 99 - 661.