By Michael Jones
In a historic move, President Trump vetoed the National Defense Authorization Act (NDAA) in 2020, claiming that it failed to include certain critical national security measures and contradicted efforts to put America first in national security and foreign policy actions.1 Lawmakers on both sides of the aisle spoke out against the President’s veto and his accompanying demands for changes to the legislation.2 Signifying the importance of the NDAA to national security, the Senate easily turned aside the veto in an extraordinary New Year’s Day session.3 Congress ultimately overrode President Trump’s veto with the Senate voting 81-13 and the House voting 322-87.4
This extraordinary series of events reveals the emphasis lawmakers and their constituents place on the NDAA each year. Of all legislative actions that occur in Congress on an annual basis, the NDAA is the bill of the most consequence for most judge advocates (JAs). Typically in excess of two-thousand pages, this important piece of legislation “authorizes appropriations and establishes policy for the Department of Defense (D[o]D), nuclear weapons programs at the Department of Energy (DOE), defense intelligence programs, and other defense activities of the Federal Government (e.g., military construction projects, homeland security programs).”5 Because of its significance, JAs should have at least a basic understanding of how the bill is constructed and passed each year, as well as ways in which the Army, the DoD, and the White House can influence the legislative process.
Purpose of the NDAA
At its core, the NDAA authorizes the appropriation of funds for the DoD.6 The key elements are items such as end strength authorizations and funding allocation tables.7 Although this may sound like a relatively mundane process, in practice, it has become the primary method by which Congress influences national defense policy.8 For example, the fiscal year (FY) 22 NDAA contained a multitude of new provisions that materially impacted legal practice in the military, including major changes to the military justice system through the creation of the Office of the Special Trial Counsel.9 Such sweeping changes to how the military conducts business are not uncommon and can go well beyond just authorizations for funding levels. In other words, the NDAA is much more than simply authorizing legislation. Because of its potential to generate significant change, JAs should try to follow the NDAA each year to be prepared for the potential reforms that can impact both military structure and process. This will ensure that they are providing the most accurate and current legal advice to their clients.10
The NDAA Legislative Process
The NDAA process begins with the release of the President’s budget request for the coming fiscal year.11 This triggers the House and Senate Armed Services Committees (HASC and SASC), working in parallel, to begin construction of the text of the NDAA.12 This is also the time when both committees conduct a series of hearings, generally referred to as posture hearings, with senior military leaders to discuss the budget request and related defense matters.13 The various defense subcommittees also hold hearings during this time on issues that are specific to the subcommittee’s respective area of jurisdiction.14 For example, in June of 2020, the House Armed Services Subcommittee on Military Personnel held a hearing on racial disparity in the military justice system,15 which was and continues to be a focus of the defense committees.16 These hearings provide information to the committees and subcommittees that can be used in conjunction with the President’s budget request and other information from various sources to begin developing the legislative text.17
Generally, in late spring, the HASC and SASC release the text of their proposed bills, referred to as the “Chairman’s Mark,” after which the subcommittees review, amend, and pass.18 The HASC markups19 are usually publicly viewable and can last late into the night as members propose and debate various amendments for inclusion.20 The HASC traditionally holds its markup process in public, while the SASC generally holds their markup sessions in private.21 Once the committees pass their bills, the legislation then moves to the floors of the House and Senate for consideration.22 This presents another opportunity for members to offer amendments for inclusion in the final version of the bill.23
The Constitution requires that the House and Senate approve the same version of a bill before it can be signed into law by the President.24 As a result, each chamber passes its own version of the NDAA and then goes into conference to resolve differences between the two bills.25 Conferees consist of House and Senate members, usually from the HASC and SASC.26 Their role is to resolve disagreements between the House and Senate positions and ultimately create a conference report that captures the agreements.27 Once the House and Senate agree to the conference report, the NDAA is enrolled and presented to the President for signature.28
The Army’s Ability to Influence the NDAA
As the NDAA develops each year, the services and DoD are not without recourse to influence provisions that would negatively impact the services. As part of the formal process of engaging with Congress on pending legislation, there are three separate, formal submissions to Congress that can be employed to express concern or dissatisfaction with a provision before it becomes law. Each are covered individually below, but they are as follows: Statements of Administration Policy (SAPs), language and budgetary appeals, and the Secretary of Defense’s “Heartburn Letter.”29
Statements of Administration Policy
Statements of Administration Policy are the means by which the Office of Management and Budget (OMB) formally communicates the administration’s views on a particular piece of legislation.30 These SAPs provide a mechanism for an administration to go on record with its justifications for objecting to, supporting, opposing, or in some cases, threatening a veto of certain legislation.31 To be effective, the OMB must release a SAP at such a time in the legislative process to maximize the administration’s influence on the policy outcome.32 Release of a SAP when the legislation is with the House Rules Committee,33 or on the floor of the House or Senate, is usually considered optimal.34
Within the DoD, the Office of Legislative Counsel (OLC) prepares the initial draft of the SAP after soliciting input across the Office of the Secretary of Defense.35 Then, OLC works with the Assistant Secretary of Defense for Legislative Affairs (ASD(LA)) to refine the draft and coordinate staffing of the product throughout DoD.36 Once there is a consensus, DoD forwards the approved input to OMB for coordination and White House review.37 The OMB will then forward the complete SAP to the White House for final coordination and approval.38 Occasionally, the administration will strongly oppose a provision in the bill, in which case the OMB may authorize language stating that the President’s senior advisors will recommend that he veto the bill if Congress does not modify or remove the provisions.39
DoD generally reserves SAP input to address only those provisions that would have a significant negative impact, because of the high level of coordination required. For example, in 2021, the administration included the following language in the SAP input to the House version of the NDAA:
Other Military Justice Measures.Though the [a]dministration similarly appreciates the commitment to further improving the military justice system, the [a]dministration opposes provisions that could have unintended and deleterious impacts on the administration of justice and D[o]D’s related programs. The [a]dministration strongly opposes section 517 as currently written, which authorizes the Secretaries of the Military Departments to act on characterization of service determinations notwithstanding the separation board’s recommendation, and recommends that a study be undertaken instead to assess potential changes. Further, the [a]dministration is concerned that military criminal investigative organizations (MCIOs) lack the personnel and resources to complete section 528’s notification requirement within 180 days. Many of the individuals who would have to be notified are no longer in the military and MCIOs would have to conduct a search for their current contact information. Therefore, the 180-day timeframe is not feasible.40
Statements of Administration Policies, Appeals, and the Heartburn Letter are powerful tools that can shape the final version of the NDAA by formally expressing the views of the White House and the DoD.
The appeals process is another opportunity by which DoD, in coordination with the administration, can submit detailed concerns and objections to specific NDAA provisions to Congress.41 With respect to the National Defense Authorization Act, DoD typically reserves appeals for issues that do not rise to the level that would require a SAP input but are problematic nonetheless.42 Appeals are primarily for highlighting differences between the House and Senate bills and expressing a preference for one approach over the other.43 They can also address technical issues with legislative text in similar House and Senate provisions to ensure that the final language does not have unintended impacts that are contrary to the congressional intent for the provision.44
As part of the FY22 NDAA appeals process, the Army submitted an appeal to address a House provision that would clarify the qualifications for attorneys who provide legal services to Families enrolled in the Exceptional Family Member Program.45 This provision would have imposed a requirement that such attorneys have experience in the practice of education law in the state in which the military installation is located (and any other state or states in which a significant portion of the personnel assigned to such military installation reside).46 The Senate included no similar provision, so the Army urged rejection of this provision. In doing so, the Army cited concerns that imposing unduly restrictive experience requirements on attorneys serving legal assistance clients would create personnel shortages and hiring challenges.47
It is important to note that appeals often receive a lower priority relative to the SAP input and the Heartburn Letter, which can result in submission delays.48 Guidance requires that the military departments and components within DoD submit NDAA language appeals to the Office of the Assistant Secretary of Defense Legislative Affairs (OASD(LA)).49
The Heartburn Letter
The Heartburn Letter is another mechanism by which the DoD can express dissatisfaction with the NDAA.50 The Heartburn Letter is a letter sent by the Secretary of Defense to the HASC and SASC, prior to conference.51 In this letter, the Secretary of Defense conveys his opposition to or support for major provisions of the bills.52 For example, in 2017, Secretary Mattis sent a Heartburn Letter to Chairman McCain expressing his concern over several provisions, including the creation of the Space Force, reforms to the military healthcare system, and non-waivable cost increase caps on military construction projects.53 The OLC prepares the initial draft of the letter after soliciting input from other organizations within DoD.54 As with the SAP, the OLC then works with ASD(LA) to refine the letter.55 Once the Secretary of Defense approves the final version, it is forwarded to the OMB for review and final administration clearance.56 Subject to OMB approval, the letter may recommend a veto if the bill contains a provision that is strongly opposed by the Secretary of Defense and the administration.57
Statements of Administration Policies, Appeals, and the Heartburn Letter are powerful tools that can shape the final version of the NDAA by formally expressing the views of the White House and the DoD. Judge Advocates often play an important role in drafting and reviewing these inputs to ensure that they convey accurate information and support U.S. Army programs and initiatives.58
As legal professionals, it is critical to stay current with changes in the law. Within the military legal community, following the NDAA as it moves through the legislative process gives JAs an important glimpse as to what the immediate future holds for how the military organizes and operates. Recent changes to the Uniform Code of Military Justice have been especially relevant to the practice of JAs as they work to advise their clients on the future of disciplinary practices. Understanding the NDAA process and how the services and DoD can influence that process enhances the ability of JAs to provide timely, accurate, and relevant legal advice. TAL
Mr. Jones is an attorney-advisor in the Legislation Division in the Office of The Judge Advocate General at the Pentagon.
1. Amanda Macias, Trump Vetoes Colossal $740 Billion Defense Bill, Breaking with Republican-Led Senate, CNBC (Dec. 24, 2020, 8:35 PM), https://www.cnbc.com/2020/12/23/trump-vetoes-740-billion-ndaa-defense-bill.html. President Trump raised concerns that the defense bill did not address laws surrounding social media platforms. Nandita Bose & David Shepardson, Trump Vows Defense Bill Veto Unless Internet Liability Shield Scrapped, Reuters (Dec. 1, 2020), https://www.reuters.com/article/us-usa-trump-tech/trump-vows-defense-bill-veto-unless-internet-liability-shield-scrapped-idUSKBN28C0AO.
2. Macias, supra note 1.
3. Matthew Daly, In a First, Congress Overrides Trump Veto of Defense Bill, AP NEWS (Jan. 1, 2021), https://apnews.com/article/election-2020-donald-trump-defense-policy-bills-85656704ad9ae1f9cf202ee76d7a14fd.
5. Monica Montgomery, The NDAA Process, Explained, Center for Arms Control and Non-Proliferation: Nukes of Hazard Blog (Dec. 10, 2020), https://armscontrolcenter.org/the-ndaa-process-explained.
6. See Macias, supra note 1.
7. See, e.g., National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, §§ 401, 4101, 135 Stat. 1541, 1673, 2246 (2021).
8. See Tom Barkley, National Defense Authorization Act (NDAA), Investopedia (Nov. 29, 2022), https://www.investopedia.com/national-defense-authorization-act-5113289.
9. National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, §§ 531-539C, 135 Stat. 1541, 1692-99 (2021).
10. This article does not address the annual defense appropriations process, which results in a separate, but also significant, piece of defense legislation considered each year.
11. Valerie Heitshusen & Brendan W. McGarry, Cong. Rsch. Serv., IF10515, Defense Primer: The NDAA Process (2021).
15. Courtney Vinopal, WATCH: House Armed Services Holds Hearing on Racial Disparities in Military Justice System, PBS News Hour (June 16, 2022, 11:12 AM), https://www.pbs.org/newshour/nation/watch-live-house-armed-services-holds-hearing-on-racial-disparities-in-military-justice-system.
16. See The Facts: Delivering Real Reforms to Address the Military Sexual Assault Crisis, H. Armed Servs. Comm., (Dec. 13, 2021), https://armedservices.house.gov/2021/12/the-facts-delivering-real-reforms-to-address-the-military-sexual-assault-crisis (describing the manner in which the House’s draft National Defense Authorization Act for Fiscal Year 2022 “address[es] the challenges of racial and ethnic inequity in the military justice system”).
17. See Heitshusen & McGarry, supra note 11.
18. Montgomery, supra note 5.
19. Markup is the process by which a committee reviews the text of a bill and makes amendments prior to voting on it. Heitschusen & McGarry, supra note 12.
20. See, e.g., U.S. House Armed Service Committee, 20220622 FC Hearing: “Markup of the National Defense Authorization Act for FY 2023” (Part One), YouTube (June 22, 2022), https://www.youtube.com/watch?v=UtiN_HsHEXU.
21. Monica Montgomery, The NDAA Process, Explained, Center for Arms Control and Non-Proliferation: Nukes of Hazard Blog (Dec. 10, 2020), https://armscontrolcenter.org/the-ndaa-process-explained.
24. U.S. Const. art. I, § 7.
25. Valerie Heitshusen & Brendan W. McGarry, Cong. Rsch. Serv., IF10515, Defense Primer: The NDAA Process (2021).
29. The “Heartburn Letter” is a letter signed by the Secretary of Defense that outlines the Department of Defense’s concerns or heartburn with the NDAA. See Eli Okun et al., Mattis ‘Heartburn Letter’ Lays Out Pentagon’s NDAA Objections, Politico (Oct. 19, 2017, 10:00 AM), https://www.politico.com/tipsheets/morning-defense/2017/10/19/mattis-heartburn-letter-lays-out-pentagons-ndaa-objections-222889.
30. Meghan M. Stuessy, Cong. Rsch. Serv., R44539, Statements of Administration Policy 1 (2016).
32. Id. at 3.
33. “[T]he Rules Committee is arguably one of the most powerful in the House. It controls any legislation reported out by another committee, determining such things as the debate time (if any), the number and types of amendments allowed (if any) on the House floor, etc.” House Committee on Rules, The Lugar Ctr. (Dec. 29, 2022), https://oversight-index.thelugarcenter.org/committee-a76da34e-d29e-4fda-b44d-0f9883373e6b/.
35. Christian P. Marrone, Dep’t of Def., Off. of Legis. Couns., An Overview of DoD’s Legislation Program 14 (2006).
38. Id. at 14-15.
39. Id. at 15.
40. Exec. Off. of the President, Off. of Mgmt. & Budget, Statement of Administrative Policy: H.R. 4350 – National Defense Authorization Act for Fiscal Year 2022, at 2,3 (2021).
41. Memorandum from Office of the Secretary of Defense to Secretaries of the Military Departments et al., subject: Appeals Process for FY 2023 National Defense Authorization Act (NDAA) (June 22, 2022).
42. This assertion is based on the author’s recent professional experiences as the Legislative Attorney, Office of The Judge Advocate General, from Aug. 2019 to present [hereinafter Professional Experience].
43. See, e.g., Off. of the Sec’y of Def., NDAA Language Appeal Format (n.d.) (on file with author).
44. Professional Experience, supra note 42.
45. Priority Department of Defense Language Appeal FY 2022 National Defense Authorization Bill, subject: Clarification of Qualifications for Attorneys Who Provide Legal Services to Families Enrolled in the Exceptional Family Member Program (unpublished on file with author).
48. Professional Experience, supra note 42.
49. Memorandum from Office of the Secretary of Defense to Secretaries of the Military Departments et al., subject: Appeals Process for FY2022 National Defense Authorization Act (NDAA) (n.d.).
50. Christian P. Marrone, Dep’t of Def., Off. of Legis. Couns., An Overview of DoD’s Legislation Program 15 (2006), https://ogc.osd.mil/Portals/99/OLC_overview.pdf.
52. See, e.g., Letter from James Mattis, Sec’y of Def. to the Hon. John McCain, Chairman of the Senate Armed Servs. Comm. (Oct. 17, 2017).
53. Id. at 2.
54. Christian P. Marrone, Dep’t of Def., Off. of Legis. Couns., An Overview of DoD’s Legislation Program 15 (2006), https://ogc.osd.mil/Portals/99/OLC_overview.pdf.
58. Professional Experience, supra note 42.