Issues Raised by Foreign Relations Authorization Bill
P ro v isio n in foreign relations authorization bill conditioning an authorization fo r ap p ro p ria-
tions on th e requirem ent that an entity controlled by the legislative branch be included at
C onference on Security and C ooperation in E urope negotiations would u n constitutionally
infringe on the P resident's exclusive authority to conduct negotiations on beh alf o f the
U nited S tates abroad and unconstitutionally deprive the President o f his co n stitutionallym andated control over the disclosure o f the content o f negotiations.
T h e unconstitutional condition may be severed from the rem ainder o f the provision authorizing
appropriations and the rest o f the bill.
A t least in the context o f legislation that infringes on the separation o f pow ers, the P resident has
the constitutional authority to refuse to enforce a statutory provision that he believes is
u nconstitutional. B ecause this unconstitutional requirem ent is severable, the P resident m ay
enforce the rem ainder o f th e provision, while refusing to enforce the unconstitutional portion.

February 16, 1990
M

em orandum

O

p in io n f o r t h e

C

o u n sel to the

P r e s id e n t

This memorandum is in response to your request for this Office's opinion
on several issues raised by section 102(c) of H.R. 3792*, the foreign rela-
tions authorization bill for fiscal years 1990 and 1991. Specifically, you
asked whether section 102(c)(2) is unconstitutional; whether it is severable
from the rest of H.R. 3792; and whether the President may decline to en-
force it. As set forth in greater detail below, we believe that section 102(c)(2)
is plainly unconstitutional. We further believe that it is severable from sec-
tion 102(c)(1) and the rest of H.R. 3792. Under the circumstances, we
believe that if the President chooses to sign H.R. 3792, he would be consti-
tutionally authorized to decline to enforce section 102(c)(2).

Analysis
1.

Section 102(c)(2) Unconstitutionally Infringes on the P resid en t's
E xclusive A u thority to C onduct N egotiations on B e h a lf o f the
United States

37

Section 102(c) provides:
(c) INTERNATIONAL CONFERENCES AND CONTIN-
GENCIES. -- (1) There are authorized to be appropriated for
"International Conferences and Contingencies", $6,340,000 for
the fiscal year 1990 and $7,300,000 for the fiscal year 1991
for the Department of State to carry out the authorities, func-
tions, duties, and responsibilities in the conduct of the foreign
affairs of the United States with respect to international con-
ferences and contingencies and for other purposes authorized
by law.
(2)
None of the funds authorized to be appropriated under
paragraph (1), may be obligated or expended for any United
States delegation to any meeting of the Conference on Secu-
rity and Cooperation in Europe (CSCE) or meetings within
the framework of the CSCE unless the United States delega-
tion to any such meeting includes individuals representing the
Commission on Security and Cooperation in Europe.
The Commission on Security and Cooperation in Europe (the "Commis-
sion") is an entity controlled by the legislative branch. The Commission
consists of twenty-one members, eighteen of whom are drawn from the houses
o f Congress, three of whom are appointed by the President. 22 U.S.C. ?
3003(a). The Commission is deemed to be a standing committee of Con-
gress for the purpose of receiving disbursements of foreign currencies, see
id. ? 3007(b), and Commission employees are considered congressional em-
ployees, id. ? 3008(d).
It is abundantly clear that section 102(c)(2), by purporting to require the
President to include "individuals representing the Commission" as part of a
delegation charged with conducting international negotiations, is unconstitutional.
The President possesses broad authority over the Nation's diplomatic af-
fairs. That authority flows from his position as head o f the unitary Executive
and as Commander in Chief. E.g., U.S. Const, art. II, ?? 1, 2 & 3; Haig v.
Agee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369 U.S. 186, 212, 213
(1962); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20
(1936). Article II, Section 2 o f the Constitution also gives the President the
specific authority to "appoint Ambassadors, other public Ministers and Con-
suls." These constitutional provisions authorize the President to determine
the form and manner in which the United States will maintain relations with
foreign nations, and further to determine the individuals who will conduct
those relations. Section 102(c)(2) of the bill is thus clearly unconstitutional,
on two specific and distinct grounds.

38

First, the courts, the Executive and Congress have all concurred that the
President's constitutional authority specifically includes the exclusive author-
ity to represent the United States abroad. A's the Supreme Court held in
Curtiss-Wright, speaking of the "federal power over external affairs":
In this vast external realm, with its important, complicated,
delicate and manifold problems, the President alone has the
power to speak or listen as a representative of the nation. He
makes treaties with the advice and consent of the Senate; but
he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it.
299 U.S. at 319 (emphasis omitted). The Court's opinion is directly appli-
cable here: "the President alone has the power to speak or listen as a
representative of the nation. . . . [H]e alone negotiates." Id. (emphases
added). The Court went on to describe the President's authority in the realm
of foreign affairs as
the very delicate, plenary and exclusive power of the Presi-
dent as the sole organ of the federal government in the field
of international relations--a power which does not require as a
basis for it's exercise an act of Congress . . . .
Id. at 320.
Such authority "in the field of international relations" must self-evidently
include the President's power to select his subordinates, who will speak as
the President's assistants or agents in the realm of foreign affairs. James
Madison observed in the First Congress that: "No person can be forced
upon [the President] as an assistant by any other branch of the Government."
The First Congress 190 (Robert P. Williams ed. 1970).
Justice Nelson relied upon the President's primacy in foreign affairs in
dismissing a civil action for damages brought against the commander of an
American gun ship that had bombarded a town in Nicaragua where a revolu-
tionary government had engaged in violence against American citizens and
their property:
As the executive head of the nation, the president is made
the only legitimate organ of the general government, to open
and carry on correspondence or negotiations with foreign na-
tions, in matters concerning the interests of the country or of
its citizens.

39

D urand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. .1860) (No. 4186). In
Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), rev'd on other grounds, 444
U.S. 996 (1979), the Court o f Appeals for the District of Columbia Circuit
stated that: "The subtleties involved in maintaining amorphous relationships
are often the very stuff of diplomacy -- a field in which the President, not
Congress, has responsibility under our Constitution." Id. at 708. Section
102(c)(2) plainly conflicts with that fundamental constitutional command.
From the earliest days o f the Republic the executive branch has made
clear that it controls the representation of the foreign policy of the United States.
In 1790, Secretary of State Thomas Jefferson made the point emphatically:
The transaction of business with foreign nations is Executive
altogether. It belongs then to the head of that department,
except as to such portions of it as are specially submitted to
the Senate. Exceptions are to be construed strictly.
Opinion on the Powers of the Senate Respecting Diplomatic Appointments,
April 24, 1790, reprinted in 16 Papers o f Thomas Jefferson 378, 379 (Julian
P. Boyd ed,, 1961).
Jefferson made this point with even greater specificity in rebuking Citi-
zen Genet for attempting to present a consul whose commission was addressed
to the Congress of the United States. Jefferson emphatically declared that
the President is
the only channel of communication between this country and
foreign nations, it is from him alone that foreign nations or their
agents are to learn what is or has been the will of the nation,
and whatever he communicates as such, they have a right and
are bound to consider as the expression of the nation.
Jefferson to Edmond C. Genet, November 22, 1793, reprinted in 9 The Writ-
ings o f Thomas Jefferson 256 (Albert E. Bergh ed. 1903).
In modem times Presidents have also asserted their authority to control
negotiations. President Bush based his 1989 veto of the FS-X legislation in
part upon his constitutional authority to control foreign negotiations:
In the conduct of negotiations with foreign governments, it is
imperative that the United States speak with one voice. The
Constitution provides that that one voice is the President's.
II Pub. Papers George Bush 1042, 1043 (July 31, 1989). Other recent Presi-
dents have taken the same view. E.g., President Reagan's Statement on
Signing H.R. 1777 into law, II Pub. Papers Ronald Reagan 1541, 1542 (Dec.

40

22, 1987) (invoking the President's "exclusive authority to determine the
time, scope, and objectives" on any international negotiations); President
Carter's Statement on Signing H.R. 3363 into law, II Pub. Papers Jimmy
Carter 1434 (Aug. 15, 1979) ("decisions associated with the appointment of
Ambassadors are acknowledged to be a constitutional prerogative of the
President").
Congress has also repeatedly endorsed this understanding of the Constitu-
tion. John Marshall, when serving in Congress, described the President's
primacy in the conduct of foreign negotiations by referring to the President
as "the sole organ of the nation in its external relations, and its sole representa-
tive with foreign nations." 10 Annals of Cong. 613 (1800).' The Senate Committee
on Foreign Relations reported to the Senate in 1816 in similar words:
The President is the constitutional representative of the United
States with regard to foreign nations. He manages our con-
cerns with foreign nations and must necessarily be m ost
competent to determine when, how, and upon what subjects
negotiation may be urged with the greatest prospect of suc-
cess. For his conduct he is responsible to the Constitution.
The committee consider[s] this responsibility the surest pledge
for the faithful discharge of his duty. They think the interfer-
ence of the Senate in the direction of foreign negotiations
calculated to diminish that responsibility and thereby to im -
pair the best security for the national safety.
Reports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt.
8, 56th Cong., 2d Sess. 24 (1901).2
These examples and authorities by no means exhaust the list of what
could be cited in support of our conclusion. Nonetheless, they are clearly
sufficient to demonstrate that the President has the constitutional responsi-
bility to represent the United States abroad and thus to choose the individuals
through whom the Nation's foreign affairs are conducted. That responsibil-
ity cannot be circumscribed by statute.3 By requiring the President to conduct
negotiations by means of certain individuals, section 102(c)(2) would imper-
missibly interfere with that specific authority over foreign negotiations and
diplomatic appointments. Accordingly, the section is unconstitutional.

1Other congressm en contemporaneously recognized that communications with foreign governments
was an exclusive presidential prerogative. For example. Representative James A. Bayard o f Delaware
noted that "the Constitution has placed the power of negotiation in the hands o f the Executive only." 9
Annals o f Cong. 2588 (1799); see also id. at 2677 (remarks o f Rep. Isaac Parker); id. at 2494 (remarks
o f Rep. Roger Griswold).
2 Both M arshall's and the Com m ittee's statements were cited by the Supreme Court with approval in
Curtiss- Wright, 299 U.S. at 319.

41

Second, section 102(c)(2) is also constitutionally offensive on the ground
that the individuals illegitimately "appointed" by the section are to "rep-
resent" a legislative entity. Section 102(c)(2) thus seeks to inject legislative
agents directly into the Executive's foreign relations negotiations, giving
C ongress regular and unsupervised access to privileged information. The
role section 102(c)(2) thus envisions for the legislative branch-- which
w ould be "represented" on a negotiating delegation and presumably would
receive reports on the conduct of negotiations from their "representative"--
w ould deprive the President o f his constitutionally-m andated control over
the disclosure o f the content of negotiations.4 That control-- a necessary
and recognized element o f executive authority-- would be impaired by
section 102(c)(2).
That the Constitution mandates Presidential control over the disclosure of
negotiations was an essential element of the Founders' vision. As John Jay
wrote in The Federalist:
It seldom happens in the negotiation of treaties, of whatever
nature, but that perfect secrecy and immediate dispatch are
sometimes requisite. There are cases where the most useful
intelligence may be obtained, if the persons possessing it can
be relieved from apprehensions of discovery. Those appre-
hensions will operate on those persons whether they are actuated
by mercenary or friendly motives; and there doubtless are many
of both descriptions who would rely on the secrecy of the
President, but who would not confide in that of the Senate,
and still less in that o f a large popular assembly. The conven-
tion [has] done well, therefore, in so disposing of the power of
making treaties that although the President must, in forming
them, act by the advice and consent of the Senate, yet he will
be able to manage the business of intelligence in such manner
as prudence may suggest. . . . So often and so essentially have
we heretofore suffered from the want of secrecy and dispatch
' N or can section 102(c)(2) be viewed as a legitimate exercise o f congressional power over the appro-
priation o f public funds. Congress may not use that power
to attach conditions to executive branch appropriations requiring the President to relin-
quish his constitutional discretion in foreign affa irs.. . . [T]he President cannot be com-
pelled to give up the authority of his Office as a condition o f receiving the funds neces-
sary to carrying out the duties of his Office.
C onstitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification fo r Cer-
tain CIA Covert Actions, 13 Op. O.L.C. 258, 261-62 (1989) (footnote omitted).
4T hat participatory role in ongoing negotiations is also completely divorced from the Fram ers' inten-
tions with respect to the activities and authority of the legislative branch. As Alexander Hamilton
explained:
The essence o f the legislative authority is to enact laws, or, in other words, to prescribe
rules for the regulation of the society; while the execution of the laws and the em ploy-
m ent o f the com m on strength, either for this purpose or for the common defense, seem to
com prise all the functions of the executive magistrate.
The Federalist No. 75, at 450 (Alexander Hamilton) (Clinton R ossitered., 1961).

42

that the Constitution would have been inexcusably defective if
no attention had been paid to those objects.
The Federalist No. 64, at 392-93 (John Jay) (Clinton Rossiter ed., 1961).
Similarly, James Madison, while serving in Congress, observed that "the
Executive had a right, under a due responsibility, also, to withhold informa-
tion, when of a nature that did not permit a disclosure of it at the time." 5
Annals of Cong. 773 (1796).
Moreover, the executive branch has repeatedly objected to requirements
for mandatory disclosure of information to Congress about international ne-
gotiations. At the same time, where possible, all Presidents have provided
broad information to Congress about international negotiations.5 The con-
duct of international negotiations is a function committed to the President
by the Constitution, see supra, and he must have the authority to determine
what information about such international negotiations may, in the public
interest, be made available to Congress and when such disclosure should
occur. As the Supreme Court observed in Curtiss-Wright:
[C ongressional legislation which is to be made effective
through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be adm is-
sible were domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the condi-
tions which prevail in foreign countries . . . .
He has his
confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in

' This balanced view of the President's responsibilities with respect to the disclosure o f negotiations
has been the consistent position of the executive branch since 1792, when President Washington re-
ceived a request from the Congress for all "persons, papers, and records" relating to the failure of M ajor
General St. C lair's military expedition against the Indians. 2 Annals of Cong 493(1792). Secretary of
State Jefferson's notes reflect that President Washington thereafter convened the Cabinet to determ ine
the proper response. 1 The Writings o f Thomas Jefferson 303 (Andrew A. Lipscomb ed., 1903). The
President and the Cabinet concluded that "the Executive ought to com municate such papers as the
public good would permit, and ought to refuse those, the disclosure of which would injure the public."
Id. at 304. The President ultimately decided to produce the requested documents. He directed Secretary
Jefferson to negotiate an agreement with Congress that acknowledged the President's right to protect
state secrets, the public disclosure of which he determined could adversely affect national security.
Jefferson's efforts were successful, and on April 4, 1792, the House resolved
[t]hat the President of the United States be requested to cause the proper officers to lay
before this House such papers o f a public nature, in the Executive Department, as may be
necessary to the investigation of the causes of the failure of the late expedition under
Major General St. Clair.
3 Annals of Cong. 536 (1792) (emphasis added).
Similarly, in 1794, the Senate requested correspondence between the U. S. M inister to France and
the Republic of France, and between the Minister and the State Department. Senate Journal, 3d Cong.,
1st Sess. 42 (1794). President Washington submitted certain o f the correspondence requested, but w ith-
held "those particulars which, in my judgment, for public considerations, ought not to be com m uni-
cated." 1 James D. Richardson, Messages and Papers o f the Presidents 152 (1896).

43

respect o f information gathered by them may be highly neces-
sary, and the premature disclosure of it productive of harmful
results. Indeed, so clearly is this true that the first President
refused to accede to a request to lay before the House of Rep-
resentatives the instructions, correspondence and documents
relating to the negotiation of the Jay Treaty -- a refusal the
wisdom of which was recognized by the House itself and has
never since been doubted.
299 U.S. at 320.6 Curtiss-Wright thus clearly establishes that the President
has the authority to determine what information about international negotia-
tions may, in the public interest, be made available to Congress and when, if
at all, such disclosure should occur. Section 102(c)(2), however, would
subvert the President's control over the disclosure o f negotiations by insert-
ing a "representative" of the legislative branch into diplomatic negotiations.7
Again, the examples and authorities offered do not exhaust those that
could be invoked in support o f our conclusion. Nonetheless, we believe that
the historical record is clear that the President has the constitutional author-
ity to control disclosure of the content of negotiations to Congress. It follows,
equally clearly, that a provision that purports to place a "representative" of a
legislative entity upon an executive negotiating team is inconsistent with
that authority, and is unconstitutional.
2. Section 102(c)(2) is Severable
The unconstitutional requirement that representatives of the Commission
be included at the CSCE negotiations may be severed from the authorization
for appropriations. Because the condition is severable, the President may
enforce the remainder of the provision, disregarding the condition contained
in section 102(c)(2).
A presumption in favor of the severability of unconstitutional provisions
exists so long as what remains of the statute is capable of functioning inde-
pendently. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality
opinion); Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir.
1985), a j f 'd sub nom. Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987).
As the Supreme Court has explained on many occasions, "[ujnless it is
evident that the Legislature would not have enacted those provisions which

' The Court in Curtiss-W right specifically endorsed President Washington's refusal to provide the House
w ith inform ation it requested about treaty negotiations, even after the negotiations had been concluded.
299 U.S. at 320-21. A fortiori, the President has constitutional authority to withhold such information
during the negotiations.
7 The effect o f this provision would also be to vitiate the President's authority to determine not to
disclose particular inform ation because such disclosure would jeopardize national security. See United
States v. N ixon, 418 U.S. 683, 710-11 (1974); Assertion o f State Secrets Privilege in Civil Litigation, 3
Op. O .L.C. 91 (1979).

44

are within its power, independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law." Champlin Ref. Co. v.
Corporation Comm'n, 286 U.S. 210, 234 (1932), quoted in Alaska Airlines,
480 U.S. at 684. This presumption may be overcome by evidence that,
absent the unconstitutional provision, the statute will not function "in a m an-
ner consistent with the intent of Congress." Alaska Airlines, Inc. v. Brock,
480 U.S. at 685.
The authorization contained in section 102(c)(1) functions independently
of the provision in section 102(c)(2). Accordingly, the unconstitutional con-
dition in section 102(c)(2) may be severed from the remainder of the provision
unless there is evidence that Congress would not have enacted the authoriza-
tion absent the condition.8
There is no such evidence. Nothing in the debates concerning the condi-
tion suggests that Congress would not have enacted the authorization if the
requirement of Commission representation was invalidated. The condition
was added in the House as an amendment to the existing authorization pro-
vision. See 135 Cong. Rec. 6265 (1989). Its purpose was to enable members
of the Commission to continue their previous participation in the CSCE
negotiations. See 135 Cong. Rec. 14,787 (1989) (statement of Sen. Fowler);
id. (statement of Sen. D 'Amato); id. (statement of Sen. DeConcini). No
one, however, indicated that they would disapprove funding for the negotia-
tions if the Commission access requirement were deleted. The chairman of
the House subcommittee said only that "[i]t is an okay amendment." 135
Cong. Rec. 6265 (1989) (statement of Rep. Dymally).
That Congress early desired to impose the condition on the authorization
does not mean that Congress would not have authorized the funds without
the condition. The Supreme Court declined to make this assumption in FCC
v. League o f Women Voters, 468 U.S. 364 (1984), where the court held that
an appropriations law's prohibition on editorializing by public broadcasting
stations violated the First Amendment, but did not even consider whether
the invalidity of the condition should result in the invalidity of the entire

' We reject any argum ent that the conditional clause "unless the United States delegation to any such
meeting includes individuals representing the Commission on Security and Cooperation in Europe" is
the relevant language to be severed from the provision. It is merely an accident of gram m ar that this
clause can be deleted without making nonsense of section 102(c)(2) as a whole Moreover, with this
clause deleted section 102(c)(2) would deny the President funding for a particular type o f negotiations.
For the reasons discussed above, this would in itself raise serious constitutional questions as an interfer-
ence with the President's authority to conduct diplomacy as he sees fit. There is obviously no reason to
prefer a severability analysis that presents the same constitutional questions that gave rise to the analy-
sis in the first place. Cf. Edward J. DeBarlolo Corp v. Florida G ulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988) (statutes should be construed to avoid constitutional questions).
Section 102(c)(2) in its entirety is naturally understood as the condition regarding the CSCE negotia-
tions, and the proper question is whether that whole section is severable.

45

appropriation.9 Indeed, we are aware of no instance in which the Supreme
Court has ever invalidated an appropriation because a condition on the use of
the appropriation was held unconstitutional.
We are also reluctant to attribute to Congress an intent to preclude the
U nited States from engaging in the CSCE negotiations. Congress was keenly
aware of the significance of the negotiations concerning conventional mili-
tary forces in Europe. The care with which Congress considered the
negotiations illustrates their importance to Congress. We cannot believe that
Congress would have preferred no participation by the United States in the
CSCE negotiations to participation by a delegation that does not include
representatives of the Commission.
3. The President M ay Refuse to Enforce Section 102(c)(2)
The final issue we address is whether the President may refuse to enforce
an unconstitutional provision such as section 102(c)(2).10 The Department
o f Justice has consistently advised that the Constitution provides the Presi-
dent with such authority. Both the President's obligation to "take Care that the
Laws be faithfully executed" and the President's oath to "preserve, protect and
defend the Constitution of the United States" vest that conflict with the highest
law, the Constitution. We emphasize, however, that there is little judicial au-
thority concerning this question, and the position remains controversial.
The President's authority to refuse to enforce a law that he believes is
unconstitutional derives from his duty to "take Care that the Laws be faith-
fully executed," U.S. Const, art. II, ? 3 and the obligation to "preserve,
protect and defend the Constitution of the United States" contained in the
President's oath of office. U.S. Const, art. II, ? 1. The Constitution is the
suprem e law that the President has a duty to take care to faithfully ex-
ecute.11 W here a statute enacted by Congress conflicts with the Constitution,
the President is placed in the position o f having the duty to execute two
conflicting "law s" : a constitutional provision and a contrary statutory

9Justice Stevens, dissenting alone, said that there was a "serious question . . . whether the entire public
funding schem e is severable from the prohibition on editorializing and political endorsements." FCC v.
League o f Women Voters, 468 U.S. at 411 n.3 (Stevens, J., dissenting).
'"T he analysis o f this question does not depend on w hether the President signed the bill or not. As the
Suprem e Court has observed, "it is not uncomm on for Presidents to approve legislation containing parts
w hich are objectionable on constitutional grounds." IN S v. Chadha, 462 U.S. 919, 942 n.13 (1983)
T hat the President has signed the bill in no way estops his ability to assert the bill's unconstitutionality,
in court or otherwise. See id.
" It is generally agreed that the Constitution is a law w ithin the meaning of the Take Care Clause. See,
e.g.. C onstitutionality o f GAO's Bid Protest Function: Hearings Before the Subcomm. o f the House
Comm, on G overnm ent Operations, 99th Cong., 1st Sess. 23 (1985) ("B id Protest Hearings") (state-
m ent o f Professor Mark Tushnet) ("the President is required faithfully to execute the laws o f the United
States, w hich surely include the Constitution as supreme law "); Letter for Secretary o f Education Shirley
M . H ufstedler from Attorney General Benjam in R. Civiletti at 12 (June 5, 1980) ("the Executive's duty
faithfully to execute the law embraces a duty to enforce the fundamental law set forth in the Constitution
as w ell as a duty to enforce the law founded in the Acts o f Congress, and cases arise in which the duty
to the one precludes the duty to the other" ).

46

requirement. The resolution of this conflict is clear: the President must
heed the Constitution-- the supreme law of our Nation.
Moreover, the Take Care Clause does not compel the President to execute
unconstitutional statutes. An unconstitutional statute is not a law. Alexander
Hamilton explained:
There is no position which depends on clearer principles
than that every act of a delegated authority, contrary to the
tenor of the commission under which it is exercised, is void.
No legislative act, therefore, contrary to the Constitution, can
be valid. To deny this would be to affirm that the deputy is
greater than his principal; that the servant is above his master;
that the representatives of the people are superior to the people
themselves; that men acting by virtue of powers may do not
only what their powers do not authorize, but what they forbid.
The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). John Marshall stated the same position in Marbury v. Madison-.
Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount
law of the nation, and consequently the theory of every such
government must be, that an act o f the legislature, repugnant
to the constitution, is void.
5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).12
The President's oath of office is the other constitutional provision autho-
rizing the President to refuse to enforce a law. The Constitution requires the
President to take an oath in which he promises to "preserve, protect and
defend the Constitution of the United States." U.S. Const, art II, ? 1. As
Chief Justice Chase asked, "How can the President fulfill his oath to pre-
serve, protect, and defend the Constitution, if he has no right to defend it
against an act of Congress sincerely believed by him to have been passed in
violation of it?" Letter from Chief Justice Chase to Gerrit Smith, Apr. 19,
1868, quoted in J. W. Schuckers, The Life and Public Services o f Salmon
,! Even though the Constitution provides that a measure enacted pursuant to the procedure described in
U.S. Const, art. I, ? 7 "shall become a Law," the fact that a law was adopted consistently with the consti-
tutional process will not save it. Only laws "made in Pursuance" of the Constitution "shall be the su -
preme Law o f the Land." U.S. Const, art. VI; see also Marbury v. M adison. 5 U.S. (1 C ranch)at 180. A
law that is not in pursuance o f the Constitution is not the supreme law of the land -- indeed, it is not law.
And if an unconstitutional law is void, then the President has no obligation to enforce it. See, e.g.. Letter
from C hief Justice Chase to Gerrit Smith, Apr 19, 1868, quoted in J. W. Schuckers, The Life and Public
Services o f Salmon Portland Chase 577 ( 1874) ("Nothing is clearer to my mind than that acts of Congress
not warranted by the Constitution are not laws "); 11 Op. A tt'y Gen. 209, 214 (1865) (" If any law be
repugnant to the Constitution, it is void; in other words, it is no law.'').

47

Portland Chase 578 (1874) ("Letter from Chief Justice Chase"). Chief Jus-

tice Chase concluded that the President's obligation to defend the Constitution
of the United States authorizes him to decline to enforce statutes which he
believes are unconstitutional.13 The President's obligation to defend the Con-
stitution permits him to decline to enforce a statute which is unconstitutional.
Just as the Take Care Clause requires the President to faithfully execute the
laws, including the Constitution as the supreme law, the oath to defend the
Constitution allows the President to refuse to execute a law he believes is
contrary to the supreme law, the Constitution.
Indeed, the Framers of the Constitution anticipated the question of the
President's authority to refuse to enforce unconstitutional laws and indicated
that the Constitution affords the President the authority to refuse to enforce
unconstitutional legislation. James Wilson, one of the key drafters and ad-
vocates o f the Constitution, addressed this question before the Pennsylvania
convention that was debating whether to ratify the proposed Constitution.
He stated:
[I]t is . . . proper to have efficient restraints upon the legisla-
tive body. These restraints arise from different sources. I will
mention some of them. . . . I had occasion, on a former day . . . to
state that the power o f the Constitution was paramount to the
power o f the legislature, acting under that Constitution. For it
is possible that the legislature, when acting in that capacity,
may transgress the bounds assigned to it, and an act may pass,
in the usual mode, notwithstanding that transgression; but when
it comes to be discussed before the judges -- when they con-
sider its principles and find it to be incompatible with the
superior power of the Constitution, it is their duty to pronounce
it void. . . . In the sam e manner, the President o f the United
States could shield him self and refuse to carry into effect an
a c t that violates the Constitution.
2 The D ocum entary History o f the Ratification o f the Constitution 450 (Merrill
Jensen ed. 1976) (statement of James Wilson on Dec. 1, 1787) (second em -
phasis added).
13 C h ie f Ju stic e C h a se answ ered his q u e stio n by en d o rsin g P resident Jo hnson's decisio n to refuse to
e n fo rc e th e law :
To m e, th e re fo re , it seems p e rfe c tly clear that th e P resident had a p erfect right, and
in d e e d w as u n d e r the highest o b lig a tio n , to rem ove Mr. Stanton, if he m ade the rem oval
n o t in w a n to n d isre g ard o f a c o n stitu tio n al law, b u t w ith a sincere be lie f that the T enureo f-O ffic e A ct w as u n constitutional an d fo r the p u rp o se o f b rin g in g the questio n before
th e S u p rem e C o u rt. Plainly it w as a proper and peaceful, if not the only proper and peaceful
m ode o f protecting an d defending th e Constitution.
L e tte r fro m C h ie f J u stic e C hase at 578. Sim ilarly, this O ffice has o p ined that " the P resid e n t's du ty to
u p h o ld th e C o n stitu tio n carrie s with it a prero g ativ e to d isreg ard unconstitutional statu tes." M em o ran -
du m fo r R o b ert J. L ip sh u tz , Counsel to th e P resident, fro m John M . H arm on, A ssistant A ttorney G e n -
e ra l, O ffice o f L e g a l C o u n se l at 16 (S ept. 17, 1977) (" H arm o n M em orandum " ).

48

This understanding comports with the Framers' profound structural con-
cern about the threat of legislative encroachments on the Executive and the
judiciary. As Madison observed, "The legislative department is everywhere
extending the sphere of its activity and drawing all power into its impetuous
vortex." The Federalist No. 48, at 309 (James Madison) (Clinton Rossiter
ed., 1961). As Chief Justice Burger more recently admonished, "[t]he hy-
draulic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must be
resisted." INS v. Chadha, 462 U.S. at 951. In particular, presidential deci-
sions not to enforce a statute which violates the separation of powers have
been justified by the need to resist legislative encroachment. For example,
in 1860 Attorney General Black advised President Buchanan that the Presi-
dent could refuse to enforce an unconstitutional condition in a law:
Congress is vested with legislative power; the authority of the
President is executive. Neither has a right to interfere with
the functions of the other. Every law is to be carried out so
far forth as is consistent with the Constitution. . . . You are
therefore entirely justified in treating this condition (if it be a
condition) as if the paper on which it is written were blank.
9 Op. Att'y Gen. 462, 469-70 (I860).14
For the reasons discussed above, the Department of Justice in modem
times has also consistently advised that the Constitution authorizes the Presi-
dent to refuse to enforce a law that he believes is unconstitutional. See, e.g.,
Letter for Congressman Peter W. Rodino, Jr., from Attorney General W ill-
iam French Smith at 3 (Feb. 22, 1985) ("Attorney General Smith Letter")
(the decision not to enforce the Competition in Contracting Act was based
upon "the duty of the President to uphold the Constitution in the context of
the enforcement of Acts of Congress" and the President's "oath to 'preserve,
protect and defend' the Constitution"); Letter for Congressman Thomas P.
O 'Neill, Jr., from Attorney General Benjamin R. Civiletti (Jan. 13, 1981);
Harmon Memorandum at 16 ("the President's duty to uphold the Constitu-
tion carries with it a prerogative to disregard unconstitutional statutes").
The Department has given the same advice whether or not the President
signed the law which he intends not to enforce. See,, e.g., Attorney General
Smith Letter; Harmon Memorandum.

14 See also R aoul B erger, Executive Privilege: A Constitutional Myth 309 (1974) (" A greed that a v e to
e xhausts p re sid en tial p o w er w hen the issue is the wisdom o f the legislation. B ut the o b ject o f the
F ram ers w as to p rev en t 'encroachment '; and they w ere too practical to lim it the P resid e n t's p o w e r to
'd e fe n d ' the C o n stitu tio n a g ain st a breach o f its very essence: the separation o f pow ers. . . . I w ou ld
therefore h o ld th at the p resid en tial o ath to 'p ro tect and d efen d the C o n stitu tio n ' posits b oth a right a n d a
duty to protect h is ow n con stitu tio n al functions from congressional im pairm ent." ).

49

We, too, conclude that at least in the context of legislation that infringes
the separation o f powers, the President has the constitutional authority to
refuse to enforce unconstitutional laws. The opinions of the Department of
Justice have long recognized the President's authority to refuse to enforce a
statutory provision that interferes with the President's exercise of his consti-
tutional powers. See, e.g.. Attorney General Smith Letter at 3 (the decision
not to enforce the Competition in Contracting Act was justified by the
President's "constitutional duty to protect the Presidency from encroach-
ment by the other branches"); Recommendation that the Department o f Justice
not D efend the Constitutionality o f Certain Provisions o f the Bankruptcy
Am endm ents and Federal Judgeship A ct o f 1984, 8 Op. O.L.C. 183, 195

(1984) (describing the historical practice of the President "under which the
President need not blindly execute or defend laws enacted by Congress if
such laws trench on his constitutional power and responsibility"). James
W ilson's statement, quoted above, provides further evidence of the constitu-
tional authority of the President to shield him self from unconstitutional
legislation by refusing to enforce such laws. We therefore advise that the
President has the constitutional power to refuse to enforce laws that violate
the separation of powers.
We recognize that opponents of presidential authority to refuse to enforce
an unconstitutional statute attempt to draw support for their views in the
same constitutional texts cited by proponents of such authority. The Take
Care Clause is often quoted as providing self-evident proof that the Presi-
dent may not refuse to enforce a law which he believes is unconstitutional.15
This reading of the provision denies the President any discretion to refuse to
enforce a law that is unconstitutional. See, e.g., B id Protest Hearings at 88
(Letter from Professor Eugene Gressman).
We reject this reading of the Take Care Clause because it rests on two
faulty premises concerning the nature o f the "laws" which the President
must enforce: first, that the President will never be faced with a conflict
between a statute and the Constitution, and second, that an unconstitutional
law is truly "law" for the purposes of the Take Care Clause. As explained
above, both o f these premises are invalid. Statutes do conflict with the
Constitution, and unconstitutional statutes are not laws the President must
faithfully execute.
We are also aware that others have argued that the President may not
refuse to enforce a law because the executive branch is not the institution
within the federal government that is authorized to determine whether a law
is unconstitutional. We have ourselves testified that "until a law is adjudi-

'sSee, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1124 (9th Cir. 1988) ("To
c o n stru e th is d u ty to fa ith fu lly execute th e law s as im p ly in g the p o w er to forbid th eir execution perverts
the c le a r la n g u a g e o f th e 'tak e care' c la u s e . . . . "), withdrawn in relevant part, 893 F.2d 205 (9th Cir.
1989); A rth u r S. M iller, The President and Faithful Execution o f the Laws, 4 0 V and. L. Rev. 389, 396
(1 9 8 7 ) ( "To say th a t th e P resident's d u ty to faithfully e x ec u te the law s im plies a pow er to forbid their
e x e c u tio n is to flo u t th e p la in language o f the C o n stitu tio n ." ).

50

cated to be unconstitutional, the issue of enforcing a statute of questionable
constitutionality raises sensitive problems under the separation of powers."
B id Protest Hearings at 318-19 (statement of Acting Deputy Attorney Gen-
eral D. Lowell Jensen). We reject, however, the argument that the President
may not treat a law as invalid prior to a judicial determination but rather
must presume it to be constitutional. It affects a subtle, but fundamental
transformation from the position, established in Marbury, that in deciding a
case or controversy the judiciary ultimately decides whether a statute is
constitutional to the position that a law is unconstitutional only when the
courts say it conflicts with the Constitution. Professor Levinson has ex-
plained why this cannot be so:
If one believes that the judiciary "finds" the [law] instead of
"creating" it, then the law is indeed "unconstitutional from
the start." Indeed, the judicial authority under this view is
derived from its ability to recognize the constitutionality or
unconstitutionality of laws, but, at least theoretically, the con-
stitutional status is independent of judicial recognition. To
argue otherwise is ultimately to adopt a theory that says that
the basis of law -- including a declaration of unconstitution-
ality -- is the court's decision itself. Among other problems
with this theory is the incoherence it leads to in trying to
determine what it can mean for judges to be faithful to their
constitutional oaths.
Bid Protest Hearings at 67.

Still others have argued that the veto power is the only tool available to
the President to oppose an unconstitutional law. We agree that the veto
power is the primary tool available to the President. We disagree, however,
with the contention that the Framers intended it to be the only tool at the
President's disposal. James Wilson's statement, quoted above, demonstrates
that the idea that the President has the authority to refuse to enforce a law
which he believes is unconstitutional was familiar to the Framers. The
Constitution qualifies the President's veto power in the legislative process,
but it does not impose a similar qualification on his authority to take care
that the laws are faithfully executed.
Finally, we emphasize that this conclusion does not permit the President
to determine as a matter of policy discretion which statutes to enforce. The
only conclusion here is that he may refuse to enforce a law which he be-
lieves is unconstitutional. Obviously, the argument that the President's
obligation to defend the Constitution authorizes him to refuse to enforce an
unconstitutional statute does not authorize the President to refuse to enforce
a statute he opposes for policy reasons. Thus, instances in which courts

51

have rejected the claims of general presidential discretion to refuse to en-
force a statutory command are irrelevant to the question of whether the President
may refuse to enforce a law because he considers it unconstitutional.16

Conclusion
For the reasons given above, we conclude that section 102(c)(2) is uncon-
stitutional. We also conclude that it is severable, and that the President may
constitutionally decline to enforce it.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel

" In K endall v. U nited States, 37 U .S . (12 Pet.) 524 (1 8 3 8 ), the P ostm aster G eneral refused to com ply
w ith a s tatu te th at o rd e re d him to pay tw o c o n tracto rs fo r m ail carry in g services. T h e C ourt, alth o u g h
d e n y in g th a t the P resid e n t was m aking su ch an arg u m en t, said, "To contend that the o b ligation im posed
o n th e P resid e n t to see the laws faith fu lly executed, im p lie s a p o w er to forbid th e ir e xecution, is a novel
c o n stru c tio n o f th e constitution, an d e n tire ly in a d m issib le ." Id. a t 613. Kendall, how ever, d id not
in v o lv e a c la im by th e President that h e w as being o rd e re d to en fo rce an u n constitutional law, and thus
th e C o u rt h a d n o o c ca sio n to exam ine th e u n ique co n sid eratio n s p resented by such a claim .
P re s id e n t N ix o n 's d e cisio n to im p o u n d funds ap p ro p riated by C ongress is a nother e x am p le o f an
e x e c u tiv e re fu sa l to e n fo rc e a federal law, b u t th ere, to o . P resident N ixon did not contend that the law
w as u n c o n stitu tio n a l. A ssistant A tto rn ey G eneral R eh n q u ist acknow ledged that " it seem s an a n o m a -
lo u s p ro p o s itio n th a t b ecau se the E x e c u tiv e branch is b o u n d to ex ecu te the law s, it is free to d eclin e to
e x e c u te th e m ." H e a d d ed , however, th a t " [o ]f co u rse, if a C ongressional d ire c tiv e to spend w ere to
in te rfe re w ith th e P re s id e n t's authority in an are a c o n fid e d by the C onstitution to his su b stantive d ire c -
tio n an d c o n tro l, su ch as h is authority as C o m m an d er-in -C h ief o f the A rm ed F orces and his auth o rity
o v e r fo re ig n affa irs, a situation w ould b e presented v ery d ifferent from the one before u s." M em o ran -
d u m Re: Presidential Authority to Im pound Funds Appropriated fo r Assistance to Federally Im pacted
Schools at 11 (D ec. 1, 1969) (citation om itted).

52

Issues Raised by Provisions Directing Issuance of
Official or Diplomatic Passports

S ectio n 129(e) o f Pub. L. No. 102-138 an d section 503 o f Pub. L . No. 102-140 are unconstitu-
tio n al to th e ex ten t th at they purport to lim it the P resident's ability to issue m ore than one
o fficial o r d ip lo m atic passport to U n ited S tates governm ent personnel.
T h e sin g le-p assp o rt requirem ents set fo rth in section 129(e) and section 503 are severable from
th e re m a in d e r o f the statutes in w hich they appear.
T h e P re sid en t is co n stitutionally authorized to decline to enforce the portions o f section 129(e)
an d sectio n 503 th at purport to lim it the issuance o f official and diplom atic passports.

January 17, 1992
M

em orandum

O

p in io n f o r t h e

C ou n sel

to the

P r e s id e n t

This memorandum responds to your request for our opinion on several
issues raised by the nearly identical provisions of section 129(e) of the For-
eign Relations Authorization A ct for Fiscal Years 1992 and 1993, Pub. L.
No. 102-138, 105 Stat. 647, 662 (1991), and section 503 of Departments of
Commerce, Justice and State, the Judiciary, and Related Agencies Appro-
priations Act, 1992, Pub. L. No. 102-140, 105 Stat. 782, 820 (1991), an act
making appropriations for the State Department and other agencies. Spe-
cifically, you asked whether these provisions are unconstitutional to the extent
that they purport to prohibit the issuance of more than one official or diplo-
m atic passport to United States government officials, whether they are
severable from the remainder o f the two bills, and whether the President
may decline to enforce them.1 For the reasons explained below, we con-
clude that the relevant portions of section 129(e) and section 503 are
unconstitutional to the extent that they limit the issuance o f official and
diplomatic passports and that those sections are severable from the remainder of
the two statutes. Under the circumstances, we further conclude that the Presi-
dent is constitutionally authorized to decline to enforce these provisions.

'M em orandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel,
from C. Boyden Gray, Counsel to the President (Oct. 23, 1991) ("Opinion Request" ).

18

I.
Section 129 of Pub. L. No. 102-138 provides in part:
(e)(1) REQUIREMENT OF SINGLE PASSPORT. -- The
Secretary of State shall not issue more than one official or
diplomatic passport to any official of the United States Gov-
ernment for the purpose of enabling that official to acquiesce
in or comply with the policy of the majority of [the] Arab
League nations of rejecting passports of, or denying entrance
visas to, persons whose passport or other documents reflects
that the person has visited Israel.
(2) IMPLEMENTATION OF POLICY OF NONCOMPLI-
ANCE.-- The Secretary of State shall promulgate such rules
and regulations as are necessary to ensure that officials of the
United States Government do not comply with, or acquiesce
in, the policy of the majority of Arab League nations o f re-
jecting passports of, or denying entrance visas to, persons
whose passport or other documents reflect that the person has
visited Israel.2
The relevant portion of section 503 of Pub. L. No. 102-140 is nearly
identical:
[Ninety] days after the enactment of this Act, none of the
funds provided in this Act shall be used by the Department of
State to issue more than one official or diplomatic passport to
any United States Government employee for the purpose of
enabling that employee to acquiesce in or comply with the
policy of the majority of Arab league nations of rejecting pass-
ports of, or denying entrance visas to, persons whose passports
or other documents reflect that that person has visited Israel.3
2 105 Stat. at 662. By virtue of section 129(e)(3)(A), section 129(e) is effective January 26, 1992.
Because you have requested our opinion only as to those provisions that "purport to forbid the issu-
ance o f more than one official or diplomatic passport to U.S. officials for the purpose o f enabling those
officials to acquiesce in" the Arab League policy described in section 129, we have so lim ited our review
and will for ease o f reference refer to the operative portion of section 129, section 129(e). See Opinion
Request.
We note, however, that section 129 also prohibits issuance o f "any passport that is designated for
travel only to Israel." Pub. L. No. 102-138, ? 129(d)(1), 105 Stat. at 661. To the extent that this
prohibition applies to official and diplomatic passports, it suffers from the same constitutional defects
as the prohibition on multiple passports.
1 105 Stat. at 820. Like section 129 of Pub. L. No. 102-138, section 503 also prohibits the issuance of
Israel-only passports: "None of the funds provided in this Act shall be used by the Departm ent o f State
to issue any passport that is designated for travel only to Isra e l. . . . " Id. O ur discussion of section 503
is limited to the provision that forbids the issuance of more than one official or diplomatic passport to
U nited States government officials. See supra note 2. References to section 503 in this m emorandum
should be understood to be so limited.

19

These provisions purport to effect a change in the State Department's
current practice in issuing official and diplomatic passports to government
personnel sent to the Middle East, which is described in the conference
report on Pub. L. No. 102-138: "Officials o f the U.S. Government traveling
in the Middle East are, as a general practice, issued two passports so that
they can travel to Israel and to Arab countries in compliance with the pass-
port and visa policy of the majority of Arab League nations." H.R. Conf. Rep.
No. 238, 102d Cong., 1st Sess. 107 (1991). You have asked our opinion whether
legislation banning continuation o f this practice is unconstitutional.
The State Department has concluded that section 129(e) and section 503
would unconstitutionally intrude on the President's authority to conduct di-
plomacy on behalf o f the United States.4 In the State Department's view,
these provisions would "directly interfere with the President's ability to send
his diplomats abroad to negotiate with foreign governments," id. at 7, and
"interfere with the discretion and flexibility needed by the President to carry
out the exclusively executive function of foreign diplomacy," id. at 12.5 Ac-
co rd in g ly , the State D epartm ent concludes that these provisions are
unconstitutional. Id. at 14.
As part o f its analysis, the State Department "examined a variety o f pos-
sibilities for carrying out diplomatic functions without the issuance of more
than one official or diplomatic passport," but it was "unable to identify a
satisfactory alternative in a significant number of cases that would be af-
fected by this legislation." Id. at 5. These alternatives included: (1) "travelling
to either Israel or Arab League nations without presenting a passport;" (2)
"ask[ing] Israel not to stamp the passports of U.S. officials;" (3) "seekfing]
advance permission from the receiving Arab country every time a U.S. offi-
cial would be entering that country with a passport reflecting travel to Israel;"
(4) "cancelling a diplomatic or official passport that reflected travel to Israel
whenever the holder needed to travel to an Arab League nation, and reissuing
a new passport;" and (5) "arranging negotiations so that travel to Israel fol-
lowed travel to the Arab countries." Id. at 5-6. The State Department rejected
all o f these alternatives.6 After reviewing these options, it concluded:
4 Memorandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel, from
Jamison M. Selby, Deputy Legal Advisei, Department of State (Jan. 3,1992) ("Selby Memorandum").
' T he S tate D epartm ent also disputes C ongress's view, expressed in the text o f section 129(e) and
section 503, that issuing m ultiple passports to accomm odate travel to the M iddle East constitutes a
practice o f "acquiesc[ing] in" or "complyfing] with" the Arab League policy. Selby M em orandum at
2. In S tate's view, the issuance o f multiple passports is "rather a challenge to [that policy], because the
ru les o f the boycott forbid the use of second passports to evade the policy." Id. Nevertheless, the State
D epartm ent recognizes that "Congress considers the issuance o f second passports as com pliance with
the A rab L eague policy." Id.
6O ption (1) was rejected because travel w ithout a passport "would probably not be permitted by receiv-
ing states, would adversely impact U.S. bilateral relations in the region, and, if permitted, would expose
U.S. officials to unacceptable personal risk." Selby M emorandum at 6. Option (2) was rejected because
"even to propose it could adversely affect our relations with Israel, and, in any event, any such request would
likely be rejected by Israel." Id. Option (3) w as unacceptable because it "would put our diplomatic travel at
Continued

20

Thus, in order to carry out [the single-passport requirement] in
all cases, the President would have to make the abolition of
the Arab League passport policy the first item on his negotiat-
ing agenda and succeed in having that policy abolished before
proceeding with substantive negotiations of great importance
to all parties concerned. . . . [W]e believe that such an effort
would not succeed at this time.
Id. We defer to the State Department's expertise with respect to the practi-

cal effects of section 129(e) and 503 and concur in its legal conclusions.

II.
The necessary background for our analysis of the particular issues pre-
sented here is the well-settled recognition of the President's broad authority
over the Nation's foreign affairs. That authority flows from his position as
head of the unitary Executive and as Commander-in-Chief. See, e.g., U.S.
Const, art. II, ?? 1-3; Haig v. Agee, 453 U.S. 280, 291-92 (1981); U nited
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936). In
addition, Section 2 of Article II of the Constitution specifically grants the
President the "Power . . . to make Treaties" and to "appoint Ambassadors,
other public Ministers and Consuls." These constitutional provisions autho-
rize the President to determine the form and manner in which the United
States will maintain relations with foreign nations and to direct the negotiation
of treaties and agreements with them. See Issues Raised by Foreign Relations
Authorization Bill, 14 Op. O.L.C. 37 (1990) ("Barr Memorandum").
In exercising the "federal power over external affairs," the President is
not subject to the interference of Congress:
[T]he President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the ad-
vice and consent of the Senate; but he alone negotiates. Into
the field of negotiation the Senate cannot intrude; and Congress
itself is powerless to invade it. As [John] Marshall said in his
great argument of March 7, 1800, in the House of Representa-
tives, "The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations."

' (....continued)
the pleasure o f Arab governments." Id. The State Department concluded that option (4) would cause
" logistical problems" and might be viewed as inconsistent with the legislation. Id. Finally, option (S)
was rejected because it would be "unacceptable to Israel" and because it would "only resolve the prob-
lem for a single trip." Id. More importantly, "it would be impossible in complex negotiations involving
rapid, repeated travel between Israel and Arab countries." Id.

21

Curtiss-W right, 299 U.S. at 319 (quoting 10 Annals of Cong. 613 (1800))

(emphasis in original). In other words, the President possesses "very deli-
cate, plenary and exclusive power . . . as the sole organ of the federal
government in the field of international relations." Id. at 320. See also Barr
M emorandum, 14 Op. O.L.C. at 38-39.
The President himself emphasized these principles in his signing state-
ment on Pub. L. No. 102-138:
Article II o f the Constitution confers the Executive power
of the United States on the President alone. Executive power
includes the authority to receive and appoint ambassadors and
to conduct diplomacy. Thus, under our system of government,
all decisions concerning the conduct of negotiations with for-
eign governments are within the exclusive control o f the
President. . . .
The Constitution . . . vests exclusive authority in the Presi-
dent to control the timing and substance of negotiations with
foreign governments and to choose the officials who will ne-
gotiate on behalf of the United States.
Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992
and 1993, II Pub. Papers 1344 (Oct. 28, 1991) ("Presidential Signing Statement").
From the Executive's plenary authority to conduct the Nation's foreign
affairs flow a number of specific executive powers that are of particular
relevance to the issue at hand. These include control over the issuance of
passports, power to determine the content of communications with foreign
governments, authority to conduct diplomacy, and authority to define the
content of foreign policy. As we explain in more detail below, we conclude
that the infringement on these powers worked by section 129(e) and section
503 would be unconstitutional.
First, these provisions conflict with the long-accepted principle that the
President, through delegates o f his choosing, has authority over issuance of
passports for reasons of foreign policy or national security. Prior to the enact-
ment o f the first passport legislation, it was generally understood that the
issuance of a passport was committed to the sole discretion of
the Executive and that the Executive would exercise this power
in the interests of the national security and foreign policy of
the United States. This derived from the generally accepted
view that foreign policy was the province and responsibility of
the Executive.
H aig, 453 U.S. at 293.

22

From the outset, "Congress endorsed not only the underlying premise o f
Executive authority in the areas of foreign policy and national security, but
also its specific application to the subject of passports." Id. at 294. In the
earliest passport statutes, Congress expressly recognized the Executive's au-
thority in that regard. See, e.g.. Act of Feb. 4, 1815, ch. 31, ? 10, 3 Stat.
195, 199 (prohibiting travel to enemy country without passport issued by
officer "authorized by the President"). Passport legislation enacted in 1856,
which authorized the Secretary of State to grant and issue passports "under
such rules as the President shall designate and prescribe," reinforced the
established power of the Executive in this area. See Haig, 453 U.S. at 294
(citing Act of Aug. 18, 1856, ch. 127, ? 23, 11 Stat. 52, 60). As noted by the
1960 Congress, the 1856 Act
merely confirmed an authority already possessed and exer-
cised by the Secretary of State. . .. This authority was ancillary
to his broader authority to protect American citizens in for-
eign countries and was necessarily incident to his general
authority to conduct the foreign affairs of the United States
under the Chief Executive.
Staff of Senate Comm, on Government Operations, 86th Cong., 2d Sess.,
Reorganization o f the Passport Functions o f the Department o f State 13
(Comm. Print 1960) ("Passport Reorganization"). The Passport Act of 1926,

ch. 772, 44 Stat. 887, adopted the pertinent language of the 1856 Act. The
legislative history of the 1926 Act indicates congressional recognition of
Executive authority with respect to passports. See Validity o f Passports:
Hearings on H.R. 11947 Before the House Comm, on Foreign Affairs, 69th
Cong., 1st Sess. 5, 10-11 (1926). As the 1960 Senate staff report concluded:
" [T]he authority to issue or withhold passports has, by precedent and law,
been vested in the Secretary of State as a part of his responsibility to protect
. . . what he considered to be the best interests of the Nation." Passport
Reorganization at 13.
Executive action to control the issuance of passports in connection with
foreign affairs has never been seriously questioned. For example, in 1861,
the Secretary of State issued orders prohibiting persons from departing or
entering the United States without passports, denying passports to individu-
als who were subject to the military service unless they were bonded, and
denying passports to individuals who were engaged in activities that threat-
ened the Union. See 3 John Bassett Moore, A Digest o f International Law
920 (1906). In 1903, President Theodore Roosevelt promulgated a rule au-
thorizing the Secretary of State to refuse to issue passports to persons who
the Secretary believed desired a passport "to further an unlawful or improper

23

purpose." Exec. Order No. 235, ? 16 (1903), quoted in Moore at 902.7 On a
number o f occasions the President, acting through the Secretary of State, has
exercised his foreign affairs power by refusing to issue a passport or by
revoking one already issued. For example, in 1948, the Secretary of State,
pursuant to his "discretionary authority . . . to conduct and be responsible
for foreign policy," refused to issue a passport to a congressman who sought
to go abroad to attend a Paris conference to aid Greek guerrilla forces.
P assports Again an Issue, N.Y. Times, Apr. 11, 1948, at E9, discussed in
H aig, 453 U.S. at 302.
M ore recently, the Supreme Court upheld the authority of the Secretary
o f State to revoke a passport on grounds of national security pursuant to a
regulation, 22 C.F.R. ? 51.70(b)(4) (1991), promulgated under section 1 of
the Passport Act of 1926, codified as amended at 22 U.S.C. ? 211a. See
H aig, 453 U.S. at 289-310. Although Haig was decided on statutory grounds,
id. at 289 n.17, the Supreme Court noted with approval the vesting of au-
thority over passports in the Executive based on the Executive's constitutional
authority in the area of foreign affairs, id. at 294.8 By purporting to regulate
the issuance of official and diplomatic passports, section 129(e) and section
503 infringe upon this constitutional authority.
Second, section 129(e) and section 503 would interfere with the President's
communications to foreign governments in the conduct of the business of
the United States Government abroad. In interfering with the issuance of
official and diplomatic passports, Congress infringes on the President's ple-
nary authority "to speak o r listen as a representative of the nation."
C urtiss-W right, 299 U.S. at 319.
In general, passports are representations by the President to a foreign
government on behalf of the United States. See Haig, 453 U.S. at 292 ("A
passport is . . . a letter of introduction in which the issuing sovereign vouches
for the bearer and requests other sovereigns to aid the bearer."); id. (quoting
Urtetiqui v. D'Arcy, 34 U.S. (9 Pet.) 692, 698 (1835)) ('" [A passport] is a
document, which, from its nature and object, is addressed to foreign powers . . .
and is to be considered rather in the character of a political docum ent. . . .'")
More particularly, official and diplomatic passports are documents addressed
to foreign powers in which the President vouches for United States officials and
diplomats.9 They carry the Secretary of State's endorsement: "The bearer is
abroad on an official [or diplomatic] assignment for the Government of the
' See also Exec. Order No. 654 (1907); Exec. Order No. 2119-A (1915); Exec. Order No. 2519-A (1917)
o H aig v. Agee provides two other examples of Executive authority over passports. In 1954, the Secre-
tary revoked a passport held by an individual who was involved in supplying arms to foreign groups
w hose interests were contrary to United States policy. Id. at 302. Similarly, in 1970, the Secretary
revoked passports held by two persons w ho sought to travel to the site of an international airplane
highjacking. Id.
9State Department regulations describe the types o f passports issued by the United Stales Government:
(a) Regular passport. A regular passport is issued to a national of the United States
proceeding abroad for personal or business reasons.
(b) Official passport. An official passport is issued to an official or employee of the
Continued

24

United States of America." According to the Passport Office of the State
Department, such passports have at least two purposes:
(1) to represent to the foreign government that the bearer is
in fact an official or employee of the United States Govern-
ment proceeding abroad on [United States Government]
business; [and] (2) to facilitate the accomplishment of that
business (clothing diplomats with diplomatic immunity, by is-
suing a separate diplomatic passport falls within this category.)
Memorandum for Harry L. Cobum, Deputy Assistant Secretary for Passport
Services, from William B. Wharton, Director, Office of Citizenship Appeals
and Legal Services at 4-5 (Sept. 21, 1984).
Because of the communicative nature of official and diplomatic pass-
ports, section 129(e) and section 503 may be read as an attempt to dictate to
the President the scope of permissible communications with foreign govern-
ments by means of passports. They would prevent him from issuing, in the
case of a United States official or diplomat who has visited Israel, "a letter
of introduction," Haig, 453 U.S. at 292, to Arab League nations that does
not also document the bearer's visit to Israel. Indeed, in certain cases, the
single-passport requirement might positively compel the President to issue,
on behalf of government officials and diplomats, letters of introduction that
would offend the recipients and cause the bearers to be turned away or
subjected to retaliation and harassment. For example, the State Department
predicts that "U.S. officials travelling to the Middle East could be expected
to face obstacles to their entry to many Arab League countries if their pass-
ports reflect travel to Israel." Selby Memorandum at 5 (footnote omitted).
Just as Congress may not directly intrude upon the President's "power to
speak . . . as a representative of the nation," Curtiss-Wright, 299 U.S. at
319, it cannot indirectly, by means of section 129(e) and section 503, effect
the same intrusion.
Third, the single-passport requirement would impair the President's abil-
ity to conduct foreign affairs by denying his diplomats the documentation
necessary for entry into certain Arab League nations. It has long been
recognized that "[a]s 'sole organ' [of the federal government in the field of
international relations], the President determines also how, when, where and
by whom the United States should make or receive communications, and there
is nothing to suggest that he is limited as to time, place, form, or forum." Louis

'(....continued)
United States Government proceeding abroad in the discharge o f official d u tie s.. . .
(c)
D iplomatic passport. A diplomatic passport is issued to a Foreign Service Officer,
[to] a person in the diplomatic service or to a person having diplomatic status either because
o f the nature of his or her foreign mission or by reason of the office he or she h o ld s .. . .
22 C.F.R. ? 51.3 (1991).

25

Henkin, Foreign Affairs and the Constitution 47 (1972). Section 129(e) and
section 503 impermissibly attempt to limit the President's authority to make
such determinations.
Congress itself has given heed to these principles since the founding of
the Republic. As the Supreme Court has noted, the Senate Committee on
Foreign Relations declared in 1816:
The President is the constitutional representative of the United
States with regard to foreign nations. He manages our con-
cerns with foreign nations and m ust necessarily be most
competent to determine when, how, and upon what subjects
negotiation may be urged with the greatest prospect of suc-
cess. For his conduct he is responsible to the Constitution.
The Committee consider this responsibility the surest pledge
for the faithful discharge of his duty. They think the infer-
ence of the Senate in the direction of foreign negotiations
calculated to diminish that responsibility and thereby to im-
pair the best security for the national safety.
C urtiss-W right, 299 U.S. at 319 (quoting 8 Reports of the Sen. Committee
on Foreign Relations 24 (1916)).
It is clear that the single-passport requirement would interfere with, and
perhaps foreclose altogether, the President's ability to conduct diplomacy
involving certain Arab League countries. The policy of these countries is to
deny entrance to those persons whose passports reflect previous travel to
Israel. See H.R. Conf. Rep. No. 238 at 107.'? The State Department be-
lieves that " [b]ased on prior experience and recent efforts to have the [Arab
League policy] repealed, . . . at least in some instances the [policy] will be
enforced against U.S. officials." Selby Memorandum at 12. The State De-
partm ent has avoided the application of this policy to United States official
and diplomatic personnel by issuing dual official or diplomatic passports to
United States government employees whose responsibilities require travel to
both Israel and Arab League nations. See id. at 4; The Anti-Boycott Passport
A ct o f 1991: H earings Before the Subcomm. on International Operations o f
the House Comm, on Foreign Affairs, 102d Cong., 1st Sess. 48, 54, 67 (1991)

(testimony o f Elizabeth M. Tamposi, Assistant Secretary of State, Bureau of
C onsular Affairs). To date, "[t]his practice has been successful in keeping
the Arab travel boycott from interfering with the conduct of U.S. diplomacy
in the region and from raising bilateral tensions." Selby Memorandum at 4.
If official and diplomatic personnel were forced to carry only a single

10 In addition, the State Department advises that certain non-Arab League countries with large Muslim
populations, such as Senegal, have occasionally refused to honor travel documents that reflect travel to
Israel. Selby M em orandum at 5 n.2.

26

passport, they would face barriers to entering these Arab countries if they had
visited Israel anytime within the period of the passport's validity -- a period
as long as five years. See 22 C.F.R. ? 51.4(c), (d) (1991)." State Depart-
ment officials have predicted that -- at the very least -- the single-passport
requirement is likely to result in "incidents of reciprocation, retaliation and
harassment of both officials and Congressmen, . . . either as a matter of
policy in certain countries or simply as a manifestation of anti-Israeli zeal-
ousness among airport officials." U.S. Dep't of State, The O perational Impact
o f Anti-Boycott Passport Legislation 3 (June 17, 1991). In addition, "[q]uite
apart from the question of entry, difficulties might also arise when an indi-
vidual bearing evidence of prior or future travel to Israel is stopped at one of
the many internal checkpoints in Lebanon and other Arab countries, and
asked to produce a passport. At this juncture, evidence of travel to Israel
might spark other, more serious, problems than denial of any entry visa."
Selby Memorandum at 5. Such difficulties would clearly "interfere with the
ability of United States officials to engage in diplomacy and could upset
delicate and complex negotiations" and "would place our officials at personal
risk." Id. As the President similarly declared in his signing statement on
Pub. L. No. 102-138:
A purported blanket prohibition on the issuance of more than
one official or diplomatic passport to U.S. Government offi-
cials could interfere with my ability to conduct diplomacy by
denying U.S. diplomats the documentation necessary for them
to travel to all countries in the Middle East and could upset
delicate and complex negotiations.
Presidential Signing Statement at 1344-45.12
Finally, Congress declared in section 129 that it was "the purpose of this
section . . . to prohibit United States Government acquiescence in" the Arab

"T h e authority o f the President to grant exceptions for citizens to enter or depart the United States
without a passport see 8 U.S.C. ? 1185(b), would not overcome these barriers imposed by the operation
o f section 129(e) and section 503. By its terms, section 1185(b) applies only to travel to and from the
United States. It would have no effect on the ability of the President's representatives to gain entry into
a foreign country.
I! As the State Department has noted, the single-passport requirement, had it been in effect, might have
upset the recent negotiations leading up to the long-sought Middle East Peace Conference. M em oran-
dum for Brent Scowcroft, from Robert W. Pearson, Executive Secretary, Department o f State, Re: P ro-
posed Legislation Prohibiting M ultiple Official or Diplomatic Passports at 2 (Oct. 29, 1991). In addition
to the Secretary o f State himself, other State Department personnel were involved in shuttle diplomacy
between Israel and the Arab League nations o f Jordan, Syria, Egypt, and Saudi Arabia, among others.
The single-passport requirement would have disrupted the intensified travel necessary to facilitate the
peace conference process. Id. Similarly, the complex process of obtaining the release o f the Am erican
hostages in Lebanon might have been imperiled if United States diplomats were unable to make respon-
sive consultations with Israeli and Arab League diplomats because of a single-passport requirement. In
general, "to carry out [the requirement] in all cases, the President would have t o . . . [postpone] substantive
negotiations of great importance to all parties concerned." Selby Memorandum at 6.

27

League passport and visa policy. Section 129(a)(2), 105 Stat. at 661. To the
extent that the single-passport requirement is an attempt, by indirect means,
to dictate the substance of United States policy toward Arab League govern-
m ents, it suffers from an additional constitutional defect. As the '" sole
organ o f the nation in its external relations,'" Curtiss-Wright, 299 U.S. at 319
(quoting 10 Annals of Cong. 613 (statement of Rep. John Marshall)), it is for
the President alone to articulate the content of the Nation's response to the
Arab League passport policy. By interfering with the President's foreign
policy determinations, section 129(e) and section 503 attempt to intrude into
a sphere in which the Constitution gives Congress no role. See Barr Memo-
randum, 14 Op. O.L.C. at 41.
In sum, the single-passport requirement interferes with the "plenary and
exclusive" power of the President to conduct foreign affairs. The current
policy o f issuing more than one passport to officials of the United States
Government traveling to the Middle East is a proper exercise of that power.
Into this field, "the Senate cannot intrude; and Congress itself is powerless
to invade it." Id. Thus, to the extent that section 129(e) and section 503
would interfere with the President's ability to conduct diplomacy with cer-
tain nations and lim it the content and nature of his speech to foreign
governments as the representative of the United States by limiting issuance
of official and diplomatic passports, they do not comport with the Constitution.13
That section 503 was enacted as a condition on the appropriation of money
for the State Department does not save it from constitutional infirmity. As
we have said on several prior occasions, Congress may not use its power
over appropriation o f public funds "to attach conditions to Executive Branch
appropriations requiring the President to relinquish his constitutional discre-
tion in foreign affairs. . . . [T]he President cannot be compelled to give up
l3T his analysis has proceeded from the President's broad authority over the N ation's foreign affairs
an d has relied on specific applications o f that authority. The analysis applies self-evidently to the
issuance o f diplom atic passports, which are furnished to Foreign Service Officers, persons in the dip-
lom atic service, and persons having diplom atic status due to their m issions or offices. See 22 C.F.R. ?
5 1.3(c) (1991), quoted supra note 9. T he Departm ent o f State has also asked for our views on the
constitutionality o f the single passport requirem ent "as applied to non-Executive branch officials, such
as m em bers o f C ongress and the federal judiciary, who often carry diplom atic passports, and C ongres-
sional staff, w ho frequently travel on official passports." Selby M emorandum at 14. We have received
the inform al advice o f the State Department that it believes the provisions are also unconstitutional as
applied to these non-executive branch officials. Telephone Conversation between Jam ison M. Selby,
D eputy Legal Adviser, D epartm ent of State, and Timothy E. Flanigan, Acting A ssistant Attorney G en-
e ral, O ffice o f Legal Counsel (Jan. 17, 1992).
W ithout the benefit o f the State Department's formal views on this question, we offer the following
view s. To the extent that members of the legislative and judicial branches travel on diplomatic pass-
ports o u r analysis, o f course, applies to such passports. In general, we also believe that the President's
authority over foreign affairs applies equally to the issuance o f official passports. To receive an official
passport, a person m ust be "an official or em ployee of the United States Government proceeding abroad
in the discharge o f official duties." 22 C.F.R. ? 51.3(b) (1991), quoted supra note 9. Such persons are
necessarily representing the U nited States in its dealings with foreign nations. Indeed, they travel with
the Secretary o f S tate's endorsem ent that they are "abroad on an official assignment for the Government
o f the U nited States o f Am erica." Accordingly, we believe that our analysis would apply with equal
force to all officials passports, whether issued to members o f the executive branch or to members o f a
coordinate branch.

28

the [constitutional] authority of his Office as a condition of receiving the
funds necessary to carrying out the duties of his Office.'" Barr Memoran-
dum, 14 Op. O.L.C. at 42 n.3 (quoting Constitutionality o f Proposed Statutory
Provision Requiring Prior Congressional Notification fo r Certain CIA C o-
vert Actions, 13 Op. O.L.C. 258, 261-62 (1989)).

The Supreme Court has recently endorsed this conclusion. In some
spheres, it has said, "the constitutional limitations on Congress when exer-
cising its spending power are less exacting than those on its authority to
regulate directly." South Dakota v. Dole, 483 U.S. 203, 209 (1987); cf. U.S.
Const, art. I, ? 8, cl. 1. But in Metropolitan Wash. A irports Auth. v. Citizens
fo r the Abatem ent o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991), the
Supreme Court found Dole "inapplicable" to issues (such as those raised by
section 129(e) and section 503) that "involve separation-of-powers principles."
In accordance with this decision, therefore, our analysis is not affected by
the fact that the single-passport requirement of section 503 is in the form of
a condition on appropriation.14
For all these reasons, we conclude that section 129(e) and section 503 are
unconstitutional to the extent that they purport to limit the President's abil-
ity to issue more than one official or diplomatic passport to United States
government personnel.

III.
We now turn to the question whether section 129(e) and section 503 may
be severed from the authorization act and the appropriations act.
The Supreme Court has explained the basic approach to severability ques-
tions on many occasions: "Unless it is evident that the legislature would not
have enacted those provisions which are within its power, independently of
that which is not, the invalid part may be dropped if what is left is fully
operative as a law." Champlin Ref. Co. v. Corporation Com m 'n, 286 U.S.
210, 234 (1932), quoted in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987). Thus, absent evidence that the statute without the unconstitutional
provisions will not function "in a manner consistent with the intent of Con-
gress," Alaska Airlines, 480 U.S. at 685, the unconstitutional provision will
be found to be severable.
The single-passport requirement of section 129(e) operates independently
of the remainder of Pub. L. No. 102-138, which contains 144 substantive
sections related to one another only by the fact that they involve some as-
pect of foreign relations. See, e.g., ? 121 ("Childcare Facilities at Certain
Posts Abroad"); ? 225 ("Eastern Europe Student Exchange Endowment
Fund"); ? 301 ("Persian Gulf War Criminals"); ? 359 ("Human Rights Abuses

HThe Stale D epartm ent agrees that "if Congress cannot directly prohibit the issuance of m ultiple
diplom atic passports, it cannot do so indirectly through its appropriations power." Selby M em oran-
dum at 13 (em phasis and capitalization omitted).

29

in East Timor"); ? 402 ("Multilateral Arms Transfer and Control Regime"); ?
507 ("Sanctions Against Use o f Chemical or Biological Weapons"). There is no
textual evidence that Congress would not have enacted this wide-ranging bill if
the isolated provision regarding issuance of multiple passports had not been
included.15 Nothing in the legislative history undermines this conclusion.16
The absence of section 129(e), moreover, would in no way impair the execution
o f the remainder of the statute in a manner fully consistent with the intent of
Congress. There is, in short, no reason to conclude that Congress would have
declined to enact Pub. L. No. 102-218 had it known that section 129(e) would
not pass constitutional muster. We therefore conclude that the single-passport
requirement is severable from the remainder of Pub. L. No. 102-138.
The appropriations bill, Pub. L. No. 102-140, contains an express sever-
ability clause. Section 604 provides:
If any provision of this Act or the application of such provi-
sion to any person or circumstances shall be held invalid, the
remainder of the Act and the application of each provision to
persons or circumstances other than those as to which it is
held invalid shall not be affected thereby.
105 Stat. at 823. The Supreme Court has held that the inclusion of a sever-
ability clause "creates a presumption that Congress did not intend the validity
of the statute in question to depend on the validity of the constitutionally
offensive provision. In such a case, unless there is strong evidence that
Congress intended otherwise, the objectionable provision can be excised from
the remainder of the statute." Alaska Airlines, 480 U.S. at 686 (citations
omitted). In the case of Pub. L. No. 102-140, there is no strong evidence --
indeed, there is no evidence at all -- that Congress intended the validity of
the statute to depend on the validity of section 503. The single-passport
l5T he absence o f a severability provision is not dispositive, for "[i]n the absence of a severability
clause . . . . C ongress' silence is just th at -- silence -- and does not raise a presumption against
severability." A laska A irlines, 480 U.S. a t 686.
'' The Senate Foreign Relations Committee gave this provision no special attention that would indicate
its centrality to the legislation as a whole. The portion o f the Comm ittee's 134-page report devoted to
w hat later becam e section 129 consumed only a single page, and was merely a synopsis o f the provision's
text. See S. Rep. No. 98, 102d Cong., 1st Sess. 55 (1991). The House bill did not even contain a single-
passport requirem ent. See H.R. Rep. N o. 53, 102d Cong., 1st Sess. 62 (1991).
O n the Senate floor, the Chairman of the Foreign Relations Committee (Senator Pell) did not mention
the single-passport requirem ent as he sum marized the bill, see 137 Cong. Rec. S 11,121 (daily ed. July
29, 1991) and only one speaker discussed the passport provision. See id. at SI 1,189-90 (statem ent of
Sen. Lautenberg).
The conference com m ittee adopted alm ost verbatim the language o f the Senate bill. See H R. Conf.
Rep. No. 238 at 107. The conferees devoted no m ore attention to section 129 than to many other
provisions. N or did the conferees give any indication that this provision of the bill was so central to its
adoption that the bill would fail without it.
W hen the bill cam e back from conference, the passport provision merited only a single sentence of
discussion on the Senate floor. See 137 Cong. Rec. S14,438 (daily ed. Oct. 4, 1991) (statement o f Sen.
Kerry). In the House, the Democratic floor manager spoke about the provision at greater length, but
gave no indication that it was in any sense the keystone o f the entire bill. See 137 Cong. Rec. H7638
(daily ed. Oct. 8, 1991) (statement of Rep. Berman).

30

requirement did not even appear in the House bill, but was added by the
Senate. See S. Rep. No. 106, 102d Cong., 1st Sess. 114 (1991). The Con-
ference Report did not discuss the provision at all. See H.R. Conf. Rep. No.
233, 102d Cong., 1st Sess. 87 (1991) (noting only that the Senate's amend-
ment adding the single-passport requirement was "[r]eported in disagreement").
Finally, the respective committee reports gave no indication that the sever-
ability clause was to be given anything but its natural construction. See S.
Rep. No. 106, at 123; H.R. Rep. No. 106, 102d Cong., 1st Sess. 97 (1991).17
Thus, we conclude that the single-passport requirements of Pub. L. No. 102138 and Pub. L. No. 102-140 are severable from the remainder of those bills.

IV.
The final issue we address is whether the President may refuse to enforce
the single-passport requirements.18 The Department of Justice has consis-
tently advised that the Constitution provides the President with the authority
to refuse to enforce unconstitutional provisions.19 Both the President's obli-
gation to "take Care that the Laws be faithfully executed," U.S. Const, art.
II, ? 3, and the President's oath to "preserve, protect and defend the Consti-
tution of the United States," id. ? 1, vest the President with the responsibility
to decline to enforce laws that conflict with the highest law, the Constitu-
tion. We recognize, however, that the judicial authority addressing this issue
is sparse and that our position may be controversial.
Among the laws that the President must "take Care" to faithfully execute
is the Constitution. This proposition seems obvious, since the Constitution
is "the supreme Law of the Land." U.S. Const, art. VI, ? 2 (emphasis
added). As the Justice Department has stated previously,
the Executive's duty faithfully to execute the law embraces a
duty to enforce the fundamental law set forth in the Constitu-
tion as well as a duty to enforce the law founded in the Acts
17Although the severability clause of Pub. L. No. 102-140 is couched in terms of provisions of the act
being "held to be invalid," and thus arguably might be read to contemplate a court decision on validity
o f portions of the act, it remains an accurate indicator of whether Congress would have enacted the bill,
and desired its other provisions to stand, if any particular section were not enforced.
"T h e analysis of this question does not turn on the fact that the President has signed the two bills. As
the Supreme Court has observed, " it is not uncommon for Presidents to approve legislation containing
parts which are objectionable on constitutional grounds." INS v. Chadha, 462 U.S. 919, 942 n.13
(1983). That the President has signed a bill in no way estops him from later asserting the bill's uncon-
stitutionality, in court or otherwise. See Letter for Peter W. Rodino, Jr., Chairman, House Com m ittee on
the Judiciary, from William French Smith, Attorney General at 3 (Feb. 22, 1985) ("Attorney General
Smith Letter") (" [T]he President's failure to veto a measure does not prevent him subsequently from
challenging the Act in court, nor does presidential approval of an enactment cure constitutional defects.");
Memorandum for Robert J. Lipshutz, Counsel to the President, from John M Harmon, Assistant A ttor-
ney General, Office of Legal Counsel at 1 (Sept 27, 1977) ("Harmon M emorandum") (" [P]rior to a
definitive judicial determination of the question of constitutionality a President may decline to enforce a
portion o f a statute if he believes it to be unconstitutional, even if he or one of his predecessors signed the
statute into law.").
15Our most recent consideration of this issue is set forth in the Barr Memorandum. The follow ing
discussion is drawn in large part from that memorandum.

31

of Congress, and cases arise in which the duty to the one
precludes the duty to the other.
C onstitutionality o f Congress' Disapproval o f Agency Regulations by Resolu-
tions N ot P resented to the President, 4A Op. O.L.C. 21, 29 (1980) (Opinion
o f Attorney General Benjamin R. Civiletti). See also, e.g., Bid Protest H ear-
ings at 23 (statement of Professor Mark Tushnet) ("[T]he President is required

faithfully to execute the laws o f the United States, which surely include the
Constitution as supreme law."). Where an act of Congress conflicts with the
Constitution, the President is faced with the duty to execute conflicting "laws"
-- a constitutional provision and a contrary statutory requirement. The reso-
lution o f this conflict is clear: the President must heed and execute the
Constitution, the supreme law of our Nation.
Thus, the Take Care Clause does not compel the President to execute
unconstitutional statutes. An unconstitutional statute, as C hief Justice
M arshall explained in his archetypal decision, is simply not a law at all:
"Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and conse-
quently the theory of every such government must be, that an act o f the
legislature, repugnant to the constitution, is void." Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803) (emphasis added). As Alexander Hamilton
had previously explained, "[t]here is no position which depends on clearer
principles than that every act o f a delegated authority, contrary to the tenor
of the commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid." The Federalist No. 78,
at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).20 Obviously, if a
statute is "void" or "no law," it cannot be one of the "Laws" that the Presi-
dent must faithfully execute.
We are aware that the Constitution provides that a bill enacted pursuant
to the procedure described in article I, section 7 "shall become a Law."
Only laws "made in Pursuance" of the Constitution, however, "shall be the
supreme Law o f the Land." U.S. Const, art. VI, ? 2; see also Marbury, 5
U.S. (1 Cranch) at 180. In order to be a valid "Law," therefore, a statute
must comport with the substance of the Constitution, as well as with its
procedures. When confronted with a suggestion to the contrary, the Su-
preme Court dismissed it in a footnote: "The suggestion is made that [a
" This proposition is hardly a novel one. See e.g., Frank H. Easterbrook, Presidential Review, 40 Case
W. Res. L. Rev. 905, 920 (1990) ("The Supreme Court has said more times than one can count that
unconstitutional statutes are 'no law at a ll." ') (citing Norton v. Shelby County, 118 U.S. 425, 442 (1886)
(" An unconstitutional act is not a law; . . . it is, in legal contem plation, as inoperative as though it had
never been passed." )); Letter for Gerrit Smith, from Salmon P. Chase, C hief Justice of the United States
(Apr. 19, 1868) quoted in J.W. Schuckers, The Life and Public Services o f Salmon Portland Chase 577
(1874) ("C hief Justice Chase Letter") (" Nothing is clearer to my mind than that acts of Congress not
w arranted by the Constitution are not law s."); Appointment o f Assistant Assessors o f Internal Revenue,
11 Op. A tt'y Gen. 209, 214 (1865) ("If any law be repugnant to the Constitution, it is void: in other
w ords, it is no law " ).

32

legislative veto provision] is somehow immunized from constitutional scru-
tiny because the Act containing [the provision] was passed by Congress and
approved by the President. Marbury v. Madison resolved that question."
Chadha, 462 U.S. at 942 n.13 (citation omitted).
The President's constitutional oath of office is further authority for the
President to refuse to enforce an unconstitutional law. The Constitution
requires the President to take an oath in which he promises to "preserve,
protect and defend the Constitution of the United States." U.S. Const, art.
II, ? 1. As Chief Justice Chase asked, "How can the President fulfill his
oath to preserve, protect, and defend the Constitution, if he has no right to
defend it against an act of Congress sincerely believed by him to have been
passed in violation of it?" Chief Justice Chase Letter at 578. He had
already answered the question: "[I]n the case where [an act of Congress]
directly attacks and impairs the Executive power confided to him by the
Constitution . . . it seems to me to be the clear duty of the President to
disregard the law . . . " Id. at 577. Just as the Take Care Clause requires
the President to faithfully execute the laws, including the Constitution as the
supreme law, the oath to defend the Constitution allows the President to
refuse to execute a law he believes is contrary to that document.
Although the Supreme Court has not squarely addressed the issue, four
Justices have recently endorsed the proposition that a President may decline
to enforce unconstitutional laws. In Freytag v. Commissioner, 501 U.S. 868
(1991), Justice Scalia, in an opinion joined by Justices O 'Connor, Kennedy,
and Souter, observed that "the means [available to a President] to resist
legislative encroachment" upon his power included "the power to veto en-
croaching laws, or even to disregard them when they are unconstitutional."
Id. at 906 (Scalia, J., concurring in part and concurring in the judgment)
(citation omitted and emphasis added). The Court's opinion did not take
issue with this observation.21
Justice Scalia's opinion is the latest in a long line of authority dating
back to the framing of the Constitution. For instance, James Wilson, a key
drafter and advocate for the ratification of the Constitution, addressed the
President's authority to refuse to enforce unconstitutional laws in the Penn-
sylvania ratifying convention. He equated Presidential review o f statutes
with judicial review:
I had occasion, on a former day . . . to state that the power of
the Constitution was paramount to the power of the legisla-
ture, acting under that Constitution. For it is possible that the
21 The Supreme Court has considered several controversies that arose because of a President's decision
to ignore statutes that he believed were unconstitutional without suggesting that the President had acted
illegitimately. For example, as Attorney General Benjamin R. Civiletti has observed, the Court in
M yers v. United States, 272 U.S. 52 (1926), upheld the President's decision to fire a postmaster despite
a statute preventing him from doing so and did not question the propriety o f the President's action that
gave rise to the case before it. See The Attorney General's Duty to Defend and Enforce Constitutionally
Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980)

33

legislature . . . may transgress the bounds assigned to it, and
an act may pass, in the usual mode, notwithstanding that trans-
gression; but when it comes to be discussed before the judges
-- when they consider its principles and find it to be incom-
patible with the superior power of the Constitution, it is their
duty to pronounce it void. . . . In the same manner, the P resi-
dent o f the United S tates could shield him self and refuse to
carry into effect an a c t that violates the Constitution.

II The Documentary History o f the Ratification o f the Constitution 450-51 (Merrill
Jensen ed., 1976) (statement o f Dec. 1, 1787) (second emphasis added).
W ilson's understanding illustrates the Framers' profound structural con-
cern about the threat of legislative encroachments on the Executive and the
Judiciary. James Madison observed that "[t]he legislative department is
everywhere extending the sphere of its activity and drawing all power into
its impetuous vortex." The Federalist No. 48, at 309 (James Madison) (Clinton
R ossiter ed,, 1961). The Supreme Court has said that: "the hydraulic pres-
sure inherent within each of the separate Branches to exceed the outer limits
o f its power, even to accomplish desirable objectives, must be resisted."
Chadha, 462 U.S. at 951. Presidential decisions not to enforce statutes that
violate the separation of powers have been justified by the need to resist
legislative encroachment. In 1860, for example, Attorney General Black
advised President Buchanan that he could refuse to enforce an unconstitu-
tional condition in a law:
Congress is vested with legislative power; the authority of the
President is executive. Neither has a right to interfere with
the functions of the other. Every law is to be carried out so
far forth as is consistent with the Constitution. . . . You are
therefore entirely justified in treating this condition (if it be a
condition) as if the paper on which it is written were blank.
M em orial o f Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (I860).22

M ore recently, the Department of Justice, under both Democratic and
Republican Administrations, has consistently advised that the Constitution
authorizes the President to refuse to enforce a law that he believes is uncon-
stitutional. Thus, Attorney General Smith explained that the Department's
decision not to enforce or defend the Competition in Contracting Act was
22 Cf. Raoul Berger, Executive Privilege: A Constitutional Myth 309 (1974) ("Agreed that a veto ex-
hausts presidential power when the issue is the wisdom o f the legislation. But the object o f the Framers
was to prevent 'encroachm ent' . . . . I would therefore hold that the presidential oath to 'protect and
defend the C onstitution' posits both a right and a duty to protect his own constitutional functions from
congressional im pairm ent." ).

34

based upon the fact that in addition to the duty of the Presi-
dent to uphold the C onstitution in the context o f the
enforcement of Acts of Congress, the President also has a con-
stitutional duty to protect the Presidency from encroachment
by the other branches. . . . An obligation to take action to
resist encroachments on his institutional authority by the legis-
lature may be implied from [his oath to "preserve, protect and
defend" the Constitution] . . . .
Attorney General Smith Letter at 3; see also Letter for Thomas P. O 'Neill,
Jr., Speaker of the House, from Benjamin R. Civiletti, Attorney General at 3
(Jan. 13, 1981) ("[T]he Executive's independent [constitutional] obligation
to 'take care that the laws be faithfully executed', permits the Attorney
General not to initiate criminal prosecutions that will undoubtedly prove
unsuccessful on constitutional grounds.") (citation omitted); Harmon M emo-
randum at 16 ("[T]he President's duty to uphold the Constitution carries
with it a prerogative to disregard unconstitutional statutes.").
This Office has given the same advice, particularly when the statutes in
question would blur the separation of powers between the Congress and the
President, as do section 129(e) and section 503. See, e.g., Harmon Memo-
randum at 13 ("We have said that Myers [v. United States, 272 U.S. 52
(1926)], by implication, stands for the proposition that the President may
lawfully disregard a statute that trenches upon his constitutional powers. We
would be disposed to accept that proposition even in the absence of M yers.")',
Memorandum for the Attorney General from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel at 17 (Aug. 27, 1984) ("[T]he
President need not blindly execute or defend laws enacted by Congress if
such laws trench on his constitutional power and responsibility."). See also
Barr Memorandum, 14 Op. O.L.C. at 49-50. The Department has consis-
tently maintained that these principles apply whether or not the President
signed the law that he intends not to enforce. See supra note 18.
We recognize that opponents of the specific Presidential authority to refuse
to enforce unconstitutional statutes draw support for their views from the
same constitutional texts we have cited, especially the Take Care Clause.
See, e.g., Arthur S. Miller, The President and Faithful Execution o f the Laws,
40 Vand. L. Rev. 389, 396 (1987) ("To say that the President's duty to
faithfully execute the laws implies a power to forbid their execution is to
flout the plain language of the Constitution."); Bid Protest Hearings at 89
(letter of Professor Eugene Gressman) (" [I]t would be a novel and 'entirely
inadmissible' construction of the Constitution to contend that the President's
obligation to see the laws faithfully executed implies a power to forbid their
execution."). These conclusions appear to rest on the argument that the ex-
ecutive branch is not the institution within the federal government that is
authorized to determine whether a law is unconstitutional. Accordingly,
Professor Gressman has stated that "despite a Presidential belief that a duly
35

enacted statute invades Executive powers, he must comply with and execute
that statute until it is definitively invalidated by the courts.'' Id. at 88 (em-
phasis added). As the Justice Department has acknowledged, "until a law is
adjudicated to be unconstitutional, the issue o f enforcing a statute of ques-
tionable constitutionality raises sensitive problems under the separation of
powers." Id. at 318-19 (statement of Acting Deputy Attorney General D.
Lowell Jensen).
We reject, however, the argument that the President may not treat a stat-
ute as invalid prior to a judicial determination, but rather must presume it to
be constitutional. This would subtly transform the proposition established
in M arbury v. M adison - in deciding a case or controversy, the Judiciary
must decide whether a statute is constitutional -- to the fundamentally dif-
ferent proposition that a statute conflicts with the Constitution only when
the courts declare so. Professor Sanford Levinson explained why this can-
not be so:
If one believes that the judiciary "finds" the [law] instead of
"creating" it, then the law is indeed "unconstitutional from
the start." Indeed, the judicial authority under this view is
derived from its ability to recognize the constitutionality or
unconstitutionality of laws, but, at least theoretically, the con-
stitutional status [of statutes] is independent of judicial
recognition. To argue otherwise is ultimately to adopt a theory
that says that the basis of law -- including a declaration of
unconstitutionality -- is the court's decision itself. Among
other problems with this theory is the incoherence it leads to
in trying to determine what it can mean for judges to be faith-
ful to their constitutional oaths.
B id P rotest H earings at 67.

Still others have argued that the veto power is the only tool available to
the President to oppose an unconstitutional law. Although we recognize that
the veto power is the primary tool available to the President; we disagree
with the contention that the Framers intended it to be the only tool at the
President's disposal. Janies Wilson's statement, quoted above, demonstrates
that the idea that the President has the authority to refuse to enforce a law he
believes is unconstitutional was familiar to the Framers. The Constitution
limits the President's formal power in the legislative process to the exercise
o f a qualified veto, but it places no limit on his authority to take care that
the laws are faithfully executed.23
23 We em phasize that this conclusion does not permit the President to determine as a matter of policy
discretion which statutes to enforce. T he only conclusion here is that he may refuse to enforce a law that
Continued

36

Conclusion
For the reasons given above, we conclude that section 129(e) of Pub. L.
No. 102-138 and section 503 of Pub. L. No. 102-140 are unconstitutional to
the extent that they purport to prohibit the issuance of more than one official
or diplomatic passport to United States government officials. We also con-
clude that these provisions are severable, and that the P resident is
constitutionally authorized to decline to enforce them.
TIMOTHY E. FLANIGAN
Acting Assistant Attorney General
Office o f Legal Counsel

" (....continued)
he believes to be unconstitutional.
Given this distinction, the Supreme Court's decision in Kendall v. United States ex rel. Stokes, 37
U.S. (12 Pet.) 524 (1838), has no relevance to the question whether the President may refuse to enforce
a law because he considers it unconstitutional. There, the Supreme Court states: "To contend that the
obligation imposed on the President to see the laws faithfully executed, im plies a power to forbid their
execution, is a novel construction o f the constitution, and entirely inadm issible." Id. at 613. The Court,
however, took pains to deny that the President had made such an argument, as the case involved the
Postm aster G eneral's refusal, with no support from the President, to comply with a statute that ordered
him to pay two contractors for mail carrying services. Because the case did not involve a claim by the
President that he would not enforce an unconstitutional law, the Court had no occasion to examine the
unique considerations presented by such a claim.

37

CONSTITUTIONALITY OF SECTION 7054 OF THE FISCAL YEAR 2009
FOREIGN APPROPRIATIONS ACT
Section 7054 of the Fiscal Year 2009 Department of State, Foreign Operations, and Related
Programs Appropriations Act, which purports to prohibit all funds made available under title I of that Act
from being used to pay the expenses for any United States delegation to a specialized UN agency, body,
or commission that is chaired or presided over by a country with a government that the Secretary of State
has determined supports international terrorism, unconstitutionally infringes on the President's authority
to conduct the Nation's diplomacy, and the State Department may disregard it.

June 1, 2009
MEMORANDUM OPINION FOR THE ACTING LEGAL ADVISER
DEPARTMENT OF STATE
You have asked for an opinion regarding section 7054 of the Fiscal Year 2009
Department of State, Foreign Operations, and Related Programs Appropriations Act ("Foreign
Appropriations Act"), which is division H of the Fiscal Year 2009 Omnibus Appropriations Act
(H.R. 1105) ("Omnibus Act"), Pub. L. No. 111-8, 123 Stat. 524. 1 The President signed the
Omnibus Act into law on March 11, 2009. Section 7054 purports to prohibit all funds made
available under title I of the Foreign Appropriations Act from being used to pay the expenses
for any United States delegation to a specialized United Nations ("U.N.") agency, body, or
commission that is chaired or presided over by a country with a government that the Secretary
of State ("Secretary") has determined supports international terrorism. You have asked whether
section 7054 prevents the State Department from using title I funds for the prohibited function.
We conclude that by purporting to bar the State Department from using title I funds for that
function, section 7054 unconstitutionally infringes on the President's authority to conduct the
Nation's diplomacy, and the State Department may disregard it.
I.
Section 7054 provides as follows:
None of the funds made available under title I of this Act may be used to pay expenses
for any United States delegation to any specialized agency, body, or commission of the
United Nations if such commission is chaired or presided over by a country, the
government of which the Secretary of State has determined, for purposes of section
6(j)(1) of the Export Administration Act of 1979 (50 U.S.C. app. 2405(j)(1)), supports
international terrorism.
Section 6(j)(1) of the Export Administration Act ("EAA") mandates a license for the export of
goods to a country the government of which the Secretary has determined "has repeatedly

1

See Letter for David Barron, Acting Assistant Attorney General, Office of Legal Counsel, from Joan E.
Donoghue, Acting Legal Adviser, Department of State (May 4, 2009) ("Donoghue Letter").

Opinions of the Office of Legal Counsel in Volume 33

provided support for acts of international terrorism" ("terrorist list state"). 2 The limitation
imposed by section 7054 applies only to funds made available by title I of the Foreign
Appropriations Act. You have informed us, however, that title I is the only source of
appropriated funds currently available to the State Department for a number of purposes related
to the administration of foreign affairs, including the carrying out of diplomatic and consular
programs. You have further explained that title I appropriations are the only operating funds
available to pay for State Department delegations to specialized U.N. entities. See State
Department Request for Confirmation of the Views of the Office of Legal Counsel on Section
7054 at 3 (May 4, 2009) ("State Request") (attachment to Donoghue Letter). Section 7054
would thus effectively preclude the State Department from including any representatives in U.S.
delegations to any specialized U.N. agency, commission or body chaired by a terrorist list state.
You have also informed us that most such government delegations are headed by a State
Department official and include one or more additional State Department officials. See State
Request at 3.
In signing the Omnibus Act, President Obama issued the following statement:
Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and
title VII of Division H, would unduly interfere with my constitutional authority in the
area of foreign affairs by effectively directing the Executive on how to proceed or not
proceed in negotiations or discussions with international organizations and foreign
governments. I will not treat these provisions as limiting my ability to negotiate and
enter into agreements with foreign nations.
Daily Comp. Pres. Doc. No. 2009-00145 (Mar. 11, 2009) (President Obama's Statement on
Signing the Omnibus Appropriations Act, 2009). Section 7054 is within title VII of division H,
and purports to "effectively direct[] the Executive on how to proceed or not proceed in
negotiations or discussions with international organizations and foreign governments."
Thus, although the President's signing statement did not identify section 7054 specifically,
it encompasses that provision.

2

You have informed us that all terrorist list states were so designated by the Secretary pursuant to the
EAA. The authority granted by the EAA, however, terminated on August 20, 2001. See 50 U.S.C. app. ? 2419
(2000). That fact does not alter our analysis. Since the EAA terminated, the President, acting under the authority of
the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. ?? 1701-1706 (2000 & West Supp. 2008),
has annually issued executive orders that adopt the provisions of the EAA and that continue Executive Branch
actions taken initially under the authority of the EAA. See, e.g., Notice of the President, Continuing of Emergency
Regarding Export Control Regulations, 73 Fed. Reg. 43603 (2008); Exec. Order No. 13222, 3 C.F.R. 783 (2001).
(The President also issued similar orders covering brief, pre-August 20, 2001 periods during which the EAA had
lapsed and Congress had not yet acted to renew it. See, e.g., Exec. Order No. 12470, 3 C.F.R. 168 (1984); Exec.
Order No. 12444, 3 C.F.R. 214 (1984).). Congress has recognized and ratified this practice. See Pub. L. No. 108458, ? 7102(c)(3), 118 Stat. 3638, 3776 (2004) (providing that "[t]he President shall implement" certain
amendments to section 6(j) of the EAA "by exercising the authorities of the President under [IEEPA]"). In light
of this history, we believe that Congress intended the reference in section 7054 to determinations "for purposes
of 6(j)(1) of the [EAA]" to encompass, at a minimum, determinations that the Secretary made prior to EAA's
termination, but which retain their force as a result of the President's exercise of his authority under IEEPA.

2

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

The same restriction on the use of appropriated funds has appeared in successive
appropriations acts since fiscal year 2005. 3 President Bush indicated in signing statements
accompanying these appropriations acts that the Executive Branch would construe such
restrictions as "advisory." 4 Consistent with President Bush's direction, the Department sent
representatives to participate from January 19, 2009 through January 23, 2009 in a session of
a U.N. specialized body--the executive board of the United Nations Development Program
("UNDP") and the United Nations Population Fund ("UNFPA")--that was chaired at the time
by Iran, a terrorist list state. See State Request at 4. Another meeting of the executive board of
UNDP/UNFPA, which Iran still chairs, is scheduled for May 26, 2009 to June 5, 2009, and the
State Department--the lead U.S. participant in the proceedings of this body--believes it would
be advantageous to United States foreign policy objectives to send State Department officials
to accompany the U.S. delegation. See id. Moreover, because the State Department is
contemplating participation in other upcoming meetings of specialized U.N. entities that may fall
within the restriction imposed by section 7054, and because the Department may receive little
prior notice that a terrorist list state will chair a particular U.N. entity in the future, you have
asked for more general guidance on whether and under what conditions the Department must
comply with section 7054. See id. at 5.
II.
As noted, President Bush announced in previous signing statements that the Executive
Branch would construe as advisory restrictions that are functionally identical to section 7054.
See supra note 4. Were such a construction available here, there would be no need to resolve
the question of section 7054's constitutionality, and we are mindful that "[t]he executive branch
has an obligation to attempt, insofar as is possible, to construe a statute so as to preserve its
constitutionality." Memorandum to the Honorable Robert J. Lipshutz, Counsel to the President,
from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Myers
Amendment at 11 (Aug. 30, 1977). In our view, however, section 7054 is not susceptible to a
3

See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, div. J (Department of State, Foreign
Operations, and Related Programs Appropriations Act), ? 112, 121 Stat. 1844, 2288 (2007); Science, State, Justice,
Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108, ? 637, 119 Stat. 2290, 2347
(2005); Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, div. B (Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations Act), ? 627, 118 Stat. 2809, 2920 (2004); cf.
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, div. B (Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations), ? 635, 118 Stat 3, 101 (2004) (prohibition limited to payment of expenses for
delegation to United Nations Human Rights Commission, if chaired by state supporter of terrorism).
4

See 41 Weekly Comp. Pres. Doc. 1745, 1764 (Nov. 22, 2005) ("The executive branch shall construe as
advisory the provisions of the Act that purport to direct or burden the Executive's conduct of foreign relations,
including the authority to recognize foreign states and negotiate international agreements on behalf of the United
States . . . . These provisions include section[] . . . 637.") (President Bush's statement on signing the Science, State,
Justice, Commerce, and Related Agencies Appropriations Act, 2006); 40 Weekly Comp. Pres. Doc. 2924, 2924
(Dec. 8, 2004) ("The executive branch shall construe as advisory provisions of the [Consolidated Appropriations
Act] that purport to direct or burden the Executive's conduct of foreign relations . . . . Such provisions include:
in the Commerce-Justice-State Appropriations Act, section[] . . . 627") (President Bush's statement on signing the
Consolidated Appropriations Act, 2005); cf. 40 Weekly Comp. Pres. Doc. 137, 137 (Jan. 23, 2004) ("The executive
branch shall construe as advisory the provisions of the Act that purport to . . . direct or burden the Executive's
conduct of foreign relations, including section[] . . . 635 of the Commerce, Justice, State Appropriations Act.")
(President Bush's statement on signing the Consolidated Appropriations Act, 2004).

3

Opinions of the Office of Legal Counsel in Volume 33

saving construction. Congress's injunction--"None of the funds made available under title I of
[the Foreign Appropriations Act] may be used . . . ."--is unambiguously phrased in mandatory
terms, and we see no evidence that Congress intended the word "may" to mean "should."
Section 7054 is "plain and unambiguous," United States v. Monsanto, 491 U.S. 600, 606 (1989),
and the canon of constitutional avoidance "has no application in the absence of statutory
ambiguity." United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001); see
also United States v. Locke, 471 U.S. 84, 96 (1985) (a court cannot "press statutory construction
to the point of disingenuous evasion even to avoid a constitutional question") (internal quotation
marks omitted). Therefore, we do not think that section 7054 can be construed as merely
advisory, even to avoid the serious constitutional question we now address.
III.
In our view, section 7054 impermissibly interferes with the President's authority to
manage the Nation's foreign diplomacy. To be sure, a determination that a duly enacted statute
unconstitutionally infringes on Executive authority must be "well-founded," Memorandum for
the Heads of Executive Departments and Agencies, Re: Presidential Signing Statements, 74 Fed.
Reg. 10669 (2009); see also Presidential Authority to Decline to Execute Unconstitutional
Statutes, 18 Op. O.L.C. 199, 200-01 (1994), and Congress quite clearly possesses significant
article I powers in the area of foreign affairs, including with respect to questions of war and
neutrality, commerce and trade with other nations, foreign aid, and immigration. 5 As ample
precedent demonstrates, however, Congress's power to legislate in the foreign affairs area does
not include the authority to attempt to dictate the modes and means by which the President
engages in international diplomacy with foreign countries and through international fora.
Section 7054 constitutes an attempt to exercise just such authority: It effectively denies the
President the use of his preferred agents--representatives of the State Department--to
participate in delegations to specified U.N. entities chaired or presided over by certain countries.
As this Office has explained, such statutory restrictions are impermissible because the
President's constitutional authority to conduct diplomacy bars Congress from attempting to
determine the "form and manner in which the United States . . . maintain[s] relations with
foreign nations." Issues Raised by Provisions Directing Issuance of Official or Diplomatic
Passports, 16 Op. O.L.C. 18, 21 (1992) (citing Issues Raised by Foreign Relations Authorization
Bill, 14 Op. O.L.C. 37, 38 (1990)).
The President's basic authority to conduct the Nation's diplomatic relations derives from
his specific constitutional authorities to "make Treaties," to "appoint Ambassadors . . . and
Consuls" (subject to Senate advice and consent), U.S. Const. art. II, ? 2, cl. 2, and to "receive
Ambassadors and other public Ministers," id. art. II, ? 3. It also flows more generally from the
President's status as Chief Executive, id. art. II, ? 1, cl. 1, and from the requirement in article II,
5

See, e.g., Perez v. Brownell, 356 U.S. 44, 57 (1958) ("Although there is in the Constitution no specific
grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt
of the existence of this power in the law-making organ of the Nation."), overruled on other grounds, Afrovim v.
Rusk, 387 U.S. 253 (1967); Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893); Hamdi v. Rumsfeld, 542 U.S.
507, 582 (2004) (Thomas, J., dissenting) ("Congress, to be sure, has a substantial and essential role in both foreign
affairs and national security."); see generally Louis Henkin, Foreign Affairs and the United States Constitution 7280 (2d ed. 1996).

4

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

section 3 of the Constitution that the President "shall take Care that the Laws be faithfully
executed." 6 As a result of these authorities, it is well established that the President is "the
constitutional representative of the United States in its dealings with foreign nations." United
States v. Louisiana, 363 U.S. 1, 35 (1960); see also Ex parte Hennen, 38 U.S. (13 Pet.) 225, 235
(1839) ("As the executive magistrate of the country, [the President] is the only functionary
intrusted with the foreign relations of the nation."). As John Marshall noted in his famous
speech of March 7, 1800 before the House of Representatives (while still a member of that
body), the Executive Branch is "entrusted with the whole foreign intercourse of the nation, with
the negotiation of all its treaties, with the power of demanding a reciprocal performance of the
article, which is accountable to the nation for the violation of its engagements, with foreign
nations, and for the consequences resulting from such violation." John Marshall, Speech of
March 7, 1800, in 4 The Papers of John Marshall 104-05 (Charles T. Cullen ed., 1984). The
President is, in other words, the "organ" of the Nation's diplomatic relations. Pacificus No. 1
(June 29, 1793), reprinted in 15 The Papers of Alexander Hamilton 33, 38 (Harold C. Syrett ed.,
1969) (italics removed).
In addition, the Executive Branch has long adhered to the view that Congress is limited in
its authority to regulate the President's conduct of diplomatic relations. Specifically, it may not
(as section 7054 would) place limits on the President's use of his preferred agents to engage in a
category of important diplomatic relations, and thereby determine the form and manner in which
the Executive engages in diplomacy. Secretary of State Thomas Jefferson, for example, set forth
this view in a legal opinion that he delivered to President Washington in the midst of an ongoing
debate in the first Congress over a proposed amendment to a bill to fund the exercise of foreign
relations--a bill that eventually became the Act Providing the Means of Intercourse Between
the United States and Foreign Nations, ch. 22, 1 Stat. 128 (1790) ("Foreign Intercourse
Appropriations Act"). See Opinion on the Powers of the Senate Respecting Diplomatic
Appointments (Apr. 24, 1790), reprinted in 16 The Papers of Thomas Jefferson 378-80 (Julian P.
Boyd ed., 1961). The proposed amendment would have given the Senate a role in approving the
President's assignments of particular grades of diplomats to particular foreign posts. See 12
Documentary History of the First Federal Congress of the United States of America 68-83
(Helen E. Veit, et al. eds., 1994). 7 Jefferson--objecting to what he believed to be the Senate's
impermissible attempt to extend its advice and consent authority over treaties and presidential
appointments to Executive determinations about the conduct of diplomacy--also shed light on
the special role that the Constitution assigns to the President when it comes to the conduct of
diplomatic relations. "The transaction of business with foreign nations is Executive altogether
. . . except as to such portions of it as are specially submitted to the Senate," Jefferson stated,
with "[e]xceptions . . . to be construed strictly." 16 The Papers of Thomas Jefferson at 379.
In the course of objecting to the proposal at hand, Jefferson not only opined that "[t]he Senate is
6

See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) ("Although the source of the President's
power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the 'executive Power' vested
in Article II of the Constitution has recognized the President's 'vast share of responsibility for the conduct of our
foreign relations.'") (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter,
J., concurring)); see also 4 The Papers of John Marshall at 104 (observing that President's duty "to execute the
laws" supports his foreign affairs powers).
7

Congress ultimately rejected the proposed amendment, and the Foreign Intercourse Appropriations Act
as enacted appropriated an unconditional annual diplomatic budget and made the President alone responsible for
deciding how to spend the lump sum. See 1 Stat. 128-29.

5

Opinions of the Office of Legal Counsel in Volume 33

not supposed by the Constitution to be acquainted with the concerns of the Executive department
. . . [they cannot] therefore be qualified to judge of the necessity which calls for a mission to any
particular place . . . ," but also that "[a]ll this is left to the President." Id. See also 7 Op. Att'y
Gen. 242, 250 (1855) (affirming Jefferson's view in concluding that the "power of determining
when and at what places to appoint [consuls], and of what rank to appoint them[]" is
constitutionally "intrusted to the sole discretion of the Executive").
The available evidence suggests that Washington understood John Jay and James
Madison to share Jefferson's views as expressed in this opinion, both as to the constraints on the
Senate's powers and the nature of the special diplomatic authorities the Constitution confers on
the President. See Michael D. Ramsey, The Constitution's Text in Foreign Affairs 83 (2007)
(noting Washington's observation in his diary that "Madison's 'opinion coincides with Mr. Jay's
and Mr. Jefferson's--to wit--that they [i.e., the Senate] have no Constitutional right to interfere
with either [the destination or grade of diplomats], . . . their powers extending no farther than to
an approbation or disapprobation of the person nominated by the President, all the rest being
Executive and vested in the President by the Constitution.'") (quoting 4 Diaries of George
Washington 122 (Apr. 27, 1790) (John Fitzpatrick ed., 1925)) (emphasis added). Indeed, prior
to the Constitution's ratification, John Jay in Federalist No. 64, in explaining why the President
should have the discretion to decide when to seek the Senate's advice on treaty negotiation, had
sounded a similar theme:
Those matters which in negotiations usually require the most secrecy and the most
dispatch, are those preparatory and auxiliary measures which are not otherwise important
in a national view, than as they tend to facilitate the attainment of the objects of the
negotiation. For these, the president will find no difficulty to provide; and should any
circumstance occur which requires the advice and consent of the senate, he may at any
time convene them. Thus we see that the constitution provides that our negotiations for
treaties shall have every advantage which can be derived from talents, information,
integrity, and deliberate investigations, on the one hand, and from secrecy and dispatch
on the other.
The Federalist No. 64 at 205 (John Jay) (McLean's ed., 1787); accord The Federalist No. 84 at
355 (Alexander Hamilton) ("[T]he management of foreign negotiations will naturally devolve
upon [the President] according to general principles concerted with the Senate, and subject to
their final concurrence.").
These Executive officials were not alone in taking the position that the President enjoys
significant discretion in determining how to negotiate with foreign nations. Newspaper accounts
of the House debate over the Foreign Intercourse Funding Act indicate that there was strong
opposition to the proposed amendment (opposition which prompted Washington's request for
the Jefferson opinion). See 12 Documentary History of the First Federal Congress of the United
States of America at 68-83. According to one report, among the positions of the "considerable
majority" in the House that rejected the amendment was that "intercourse with foreign nations is
a trust specially committed to the President of the United States; and after the Legislature has
made the necessary provision to enable him to discharge that trust, the manner how it shall be
executed must rest with him." Id. at 72, 83.

6

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

Members of Congress expressed similar views in other contexts during the Nation's
early history. In 1796, for example, Senator Robert Ellsworth, a future Supreme Court Justice,
explained that "[n]either [the legislative nor the judicial] branch had a right to dictate to the
President what he should answer [to foreign nations]. The Constitution left the whole business in
his breast." 5 Annals of Congress 28, 32 (1796). And in 1816, the Senate Committee on Foreign
Relations made similar arguments in a report to the full Senate opposing adoption of a proposed
resolution recommending that the President pursue certain negotiations with Great Britain. See
Compilation of Reports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt. 8,
at 22-25 (1901). The report stated that:
The President is the constitutional representative of the United States with regard to
foreign nations. He manages our concerns with foreign nations and must necessarily be
most competent to determine when, how, and upon what subjects negotiation may be
urged with the greatest prospect of success. For his conduct he is responsible to the
Constitution.
Id. at 24. "[T]he interference of the Senate in the direction of foreign negotiations" was, the
Committee thought, "calculated to diminish that responsibility and thereby to impair the best
security for the national safety." Id.
Consistent with these principles, Congress may by statute affirm the President's authority
to determine whether, how, when, and through whom to engage in foreign diplomacy. 8 But
when Congress takes the unusual step of purporting to impose statutory restrictions on this well
recognized authority, the Executive Branch has resisted. For example, Congress enacted an
appropriations rider in 1913, providing that "[h]ereafter the Executive shall not extend or accept
any invitation to participate in any international congress, conference, or like event, without first
having specific authority of law to do so." Act of Mar. 4, 1913, ch. 149, 37 Stat. 913 (1913)
(codified at 22 U.S.C. ? 262 (2006)). The Executive has not acted in accord with that
requirement, see Henry M. Wriston, American Participation in International Conferences, 20
Am. J. Int'l L. 33, 40 (1926) (observing that "there is not a single case [since 1913] where the
President secured from Congress authorization to accept an invitation to a conference of a
political or diplomatic character," and that "since 1917 the whole practice of requesting Congress
for authority to accept invitations to any sort of international conference has virtually fallen into
disuse"), and the measure is now a "known dead letter," Louis Henkin, Foreign Affairs and the
United States Constitution 118 (2d ed. 1996). Indeed, when first informed of the provision's
existence (more than three years after its enactment), President Wilson reportedly termed it
"utterly futile." Wriston at 39. Wilson's dismissive characterization accorded with the view,
expressed in a leading treatise of the day, that the President "cannot be compelled by a resolution
of either house or of both houses of Congress to exercise" his constitutional powers with respect
to "instituting negotiations." Samuel B. Crandall, Treaties: Their Making and Enforcement 74
(2d ed. 1916).
8

See, e.g., 22 U.S.C. 287a (2006) ("[W]hen representing the United States in the respective organs and
agencies of the United Nations, [U.S. representatives] shall, at all times, act in accordance with the instructions of
the President transmitted by the Secretary of State unless other means of transmission is directed by the President.").

7

Opinions of the Office of Legal Counsel in Volume 33

In more recent decades, the Executive has continued to object when Congress has
attempted to impose limits on the form and manner by which the President exercises his
diplomatic powers. In particular, the Executive has asserted on numerous occasions that the
President possesses the "'exclusive authority to determine the time, scope, and objectives'" of
international negotiations or discussions, including the authority "to determine the individuals
who will" represent the United States in those diplomatic exchanges. 9 And this Office has
"repeatedly objected on constitutional grounds to Congressional attempts to mandate the time,
manner and content of diplomatic negotiations," including in the context of potential engagement
with international fora. See Memorandum for Alan Kreczko, Legal Adviser, National Security
Council, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: WTO
Dispute Settlement Review Commission Act at 3 (Feb. 9, 1995) ("Dellinger WTO Memo").
For example, we concluded that it would be unconstitutional for Congress to adopt joint
resolutions mandating that the President enter negotiations to modify the rules of the World
Trade Organization. See id. Relatedly, we determined that a legislative provision purporting to
prevent the State Department from expending appropriated funds on delegates to an international
conference unless legislative representatives were included in the delegation was an
"impermissibl[e] interfere[nce]" with the President's "constitutional responsibility to represent
the United States abroad and thus to choose the individuals through whom the Nation's foreign
affairs are conducted." 14 Op. O.L.C. at 38, 41. And the Executive Branch has objected
numerous times on constitutional grounds to legislative provisions purporting to preclude any
U.S. government employee from negotiating with (or recognizing) the Palestine Liberation
Organization ("PLO") or its representatives until the PLO had met certain conditions. 10
9

14 Op. O.L.C. at 38, 41 (quoting II Pub. Papers Ronald Reagan 1541, 1542 (Dec. 22, 1987) (President
Reagan's statement in signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989)); see also
Section 235A of the Immigration and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (same); 32 Weekly Comp.
Pres. Doc. 2040, 2041 (Oct. 11, 1996) (President Clinton's statement on signing the Sustainable Fisheries Act)
("Under our Constitution, it is the President who articulates the Nation's foreign policy and who determines the
timing and subject matter of our negotiations with foreign nations."); 27 Weekly Comp. Pres. Doc. 1527, 1528
(Oct. 28, 1991) (President Bush's statement on signing the Foreign Relations Authorization Act, Fiscal Years 1992
and 1993) ("The Constitution . . . vests exclusive authority in the President to control the timing and substance of
negotiations with foreign governments and to choose the officials who will negotiate on behalf of the United
States."); The President--Authority to Participate in International Negotiations--Trade Act of 1974 (19 U.S.C.
? 2101)--Participation in Producer-Consumer Fora, 2 Op. O.L.C. 227, 228 n.1 (1978) ("[W]e think it doubtful
that the President's power to negotiate with foreign governments over subjects of national concern can ever be
subject to unqualified restriction by statute."); accord Henkin at 42 ("As 'sole organ,' the President determines also
how, when, where, and by whom the United States should make or receive communications, and there is nothing
to suggest that he is limited as to time, place, form, or forum.").
10

See, e.g., Memorandum for Carol T. Crawford, Assistant Attorney General, Office of Legislative
Affairs, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R. 2939 at 3
(Oct. 19, 1989); see also 21 Weekly Comp. Pres. Doc. 972, 973 (Aug. 8, 1985) (President Reagan's statement on
signing the International Security and Development Cooperation Act of 1985) (objecting to such a provision as a
"congressional effort to impose legislative restrictions or directions with respect to the conduct of international
negotiations which, under article II of the Constitution, is a function reserved exclusively to the President"); accord
26 Weekly Comp. Pres. Doc. 266, 267 (Feb. 16, 1990) (President Bush's statement on signing the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991) (stating that provision "restrict[ing] the expenditure of appropriated
funds for carrying on 'the current dialogue in the Middle East peace process with any [PLO representative]'" would,
if "interpreted to prohibit negotiations with particular individuals under certain circumstances," "impermissibly limit
my constitutional authority to negotiate with foreign organizations").

8

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

In objecting to one such provision, this Office explained that Congress "possesses
no constitutional authority to forbid the President from engaging in diplomatic contacts."
Memorandum for Carol T. Crawford, Assistant Attorney General, Office of Legislative Affairs,
from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: H.R.
2939 at 3 (Oct. 19, 1989). Other Executive Branch precedents are to similar effect. See Bill To
Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123, 126 (1995)
(concluding that a proposed bill conditioning the State Department's ability to obligate certain
appropriated funds upon the relocation of the United States's Israeli embassy to Jerusalem would
constitute an unconstitutional invasion of the President's authority to determine the form and
manner of the Nation's diplomatic relations); 16 Op. O.L.C. at 24-28 (deeming it an
unconstitutional "interfere[nce] with the President's communications to foreign governments"
and his "ability to conduct diplomacy" for Congress to preclude the State Department's use of
appropriated funds to issue additional diplomatic passports of a type necessary for government
employees to travel to certain Arab league countries); 15 Weekly Comp. Pres. Doc. 1434 (Aug.
15, 1979) (President Carter's statement on signing H.R. 3363) ("I believe that Congress cannot
mandate the establishment of consular relations at a time and place unacceptable to the
President."). 11
Judicial support for the Executive Branch's position can be found in Earth Island
Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993). In that case, the United States Court of
Appeals for the Ninth Circuit struck down a statute purporting to require the Secretary of State
to initiate negotiations with, and otherwise engage, foreign governments for the purposes of
developing and entering into international agreements for the protection of sea turtles. The court
deemed the statute an unconstitutional "intru[sion] upon the conduct of foreign relations by the
Executive." Id. at 653. Additional judicial support can be found in the Supreme Court's clear
dicta in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936): "[T]he President
alone has the power to speak or listen as a representative of the nation. . . . Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to invade it," id. at 319.
That the President possesses the exclusive power to determine how to conduct diplomacy
with other nations does not mean that Congress is without relevant authority. For example, the
Senate must approve the treaties the President negotiates, see U.S. Const. art. II, ? 2, cl. 2, and
Congress can, by a subsequently enacted statute, limit the effect of treaties, see Whitney v.
Robertson, 124 U.S. 190, 194 (1888) (stating that if a treaty and a statute are inconsistent, "the
one last in date will control the other"). The Senate may even refuse its consent to a treaty if an
international organization makes entry into such treaty a necessary precondition of United States

11

See also Placing of United States Armed Forces Under United Nations Operational or Tactical Control,
20 Op. O.L.C. 182, 186 (1996) (proposed bill prohibiting the obligation or expenditure of appropriated funds by the
Department of Defense for the activities of elements of the armed forces placed under the United Nations's
operational or tactical control would "impermissibly undermin[e] the President's constitutional authority with
respect to the conduct of diplomacy"); Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189,
193 (1996) (legislative provision requiring the President to make a detailed certification before using appropriated
funds to expand the United States's diplomatic presence in Vietnam constituted "an unconstitutional condition on
the exercise of the President's" recognition power).

9

Opinions of the Office of Legal Counsel in Volume 33

participation in the proceedings of that organization. 12 The statutory limitation at issue here,
however, does not constitute such an exercise of Congress's legitimate authority in the area of
foreign affairs; rather, it purports to restrict the President from engaging in diplomacy through
international fora that are organized pursuant to a treaty to which the United States is a party.
See United Nations Charter, Jun. 26, 1945, 59 Stat. 1031, 1031, 1213 (noting that Senate
consented to ratification of U.N. Charter on July 28, 1948). Section 7054, in other words, seeks
to regulate who may participate in the delegations the President may send to the international
fora of an organization to which the United States belongs, and at which the United States would
be received were its delegations to be sent.
Nor is the impact of section 7054 on the President's discretion to determine the "form
and manner" of the Nation's diplomacy merely hypothetical. You have explained to us that
"United Nations bodies and affiliated agencies are generally responsible for marshalling United
Nations member state responses to issues that fall within their purview." State Request at 3.
Accordingly, full U.S. participation in such bodies facilitates the type of direct diplomacy that is
critically important to advancing U.S. objectives with respect to the issues under discussion. Id.
at 4. Moreover, the decision to send a full complement of government representatives to a class
of entities that are so centrally important to the business of the U.N. may affect the standing and
influence of the U.S. within the community of nations and thereby have a deleterious effect on
the President's diplomatic efforts more broadly. That Congress has purported to restrict the
President's reliance on the State Department--the lead and most experienced and capable
government agency with respect to U.N. relations, see 22 U.S.C. ?? 287, 287a (2006); see also
State Request at 3-4--further heightens the extent to which section 7054 impermissibly restrains
the President's authority. Indeed, with reference to the particular context of the upcoming
meeting of the executive board of UNDP/UNFPA, you have explained that "prohibiting State
Department participation . . . would significantly hinder direct U.S. engagement in important
diplomatic efforts, undermining U.S. strategic foreign policy interests." State Request at 4.
For these reasons, section 7054's prevention of the inclusion of State Department
representatives in delegations to the specified U.N. entities is unconstitutional.
IV.
Our conclusion is not affected by the fact that Congress has drafted its restriction as a
prohibition on the use of appropriated funds rather than as a direct prohibition. Congress's
spending power is undoubtedly broad, and, as a general matter, Congress may decline to
appropriate money altogether for a particular function, or place binding conditions on the

12

In addition, although the question is not settled, Congress may possess some authority to withdraw the
United States from membership in an international organization--at least where the organization relates to a subject
matter, such as foreign commerce, that falls within Congress's enumerated powers, U.S. Const. art. I, ? 8, cl. 3. See
Dellinger WTO Memo at 4-6; cf. Edward S. Corwin, The President: Office and Powers, 1787-1984, at 222 (5th ed.
1984) (arguing that Congress possesses "vast powers to determine the bounds within which a President may be left
to work out a foreign policy").

10

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

appropriations it does make. 13 But as the Executive Branch has repeatedly observed,
"it does not necessarily follow that [Congress] may attach whatever condition it desires
to an appropriation," 14 for "Congress may not deploy [the spending power] to accomplish
unconstitutional ends." 15 The Supreme Court has affirmed this fundamental proposition on a
number of occasions. The most notable case is United States v. Lovett, 328 U.S. 303 (1946).
There, the Court expressly rejected the proposition that the appropriations power is "plenary
and not subject to judicial review," and struck down as an unconstitutional bill of attainder
a provision in an appropriations act that barred the payment of salaries to named federal
employees. Id. at 305, 307; see also United States v. Klein, 80 U.S. 128, 147-48 (1871)
(deeming an appropriations proviso that "impair[ed] the effect of a [presidential] pardon" void
as an unconstitutional "infring[ement]" on "the constitutional power of the Executive"); Office
of Personnel Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (noting that
"the [majority] does not state that statutory restrictions on appropriations may never fall even
. . . if they encroach on the powers reserved to another branch of the Federal Government").
Consistent with these precedents, the Executive Branch has long adhered to the view that
"Congress cannot use the appropriations power to control a Presidential power that is beyond its
direct control." Presidential Certification Regarding the Provision of Documents to the House of
Representatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 267 (1996)
(internal quotation marks omitted); Mutual Security Program--Cutoff of Funds from Office of
Inspector General and Comptroller, 41 Op. Att'y Gen. 507, 530 (1960) (Att'y Gen. Rogers). 16
13

See U.S. Const. art. I, ? 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law . . . ."); United States v. MacCollom, 426 U.S. 317, 321 (1976) ("The established rule
is that the expenditure of public funds is proper only when authorized by Congress . . . .") (citing Reeside v. Walker,
52 U.S. (11 How.) 272, 291 (1850)); Authority of Congressional Committees to Disapprove Action of Executive
Branch, 41 Op. Att'y Gen. 230, 233 (1955) (Att'y Gen. Brownell) ("It is recognized that Congress may grant or
withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the
appropriation shall be devoted."); Memorandum for the Acting Solicitor General from John F. Davis, Office of
Legal Counsel, Re: Validity of Section 207 of Current Appropriation Act Providing That None of the Funds May
be Used in the Santa Margarita Litigation at 2 n.2 (June 26, 1953) ("The use of a rider to an appropriation act to
control executive action is by no means novel.").
14

Memorandum for Charles W. Colson, Special Counsel to the President, from William H. Rehnquist,
Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the
Cambodian Sanctuaries at 21 n.3 (May 22, 1970).
15

Presidential Certification Regarding the Provision of Documents to the House of Representatives Under
the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 266 (1996); 41 Op. Att'y Gen. at 233 ("If the practice
of attaching invalid conditions to legislative enactments were permissible, it is evident that the constitutional system
of the separability of the branches of Government would be placed in the gravest jeopardy."); Constitutionality of
Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. 56, 61 (1933) (Att'y Gen. Mitchell) ("Congress may
not, by conditions attached to appropriations, provide for a discharge of the functions of Government in a manner
not authorized by the Constitution. If such a practice were permissible, Congress could subvert the Constitution.").
16

The Supreme Court suggested in South Dakota v. Dole, 483 U.S. 203 (1987), that "the constitutional
limitations on Congress when exercising its spending power" vis a vis the States "are less exacting than those on its
authority to regulate directly." Id. at 209. But the Court has since made clear that Congress does not enjoy such
heightened latitude when it purports to impose spending conditions on the Executive Branch, for "Dole did not
involve separation-of-powers principles." Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 271 (1991); see also 16 Op. O.L.C. at 29 (Dole does not apply to spending conditions in
the separation-of-powers context).

11

Opinions of the Office of Legal Counsel in Volume 33

This proposition applies with equal force in the foreign affairs context. 17 Indeed, on numerous
occasions, this Office has invoked the specific principle that "the spending power may not be
deployed to invade core Presidential prerogatives in the conduct of diplomacy." Section 609
of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 197 (1996) (citing precedents
for this principle from early 19th century involving objections to appropriations riders by
Representative Daniel Webster, then-Secretary of State John Quincy Adams, and members of
Congress); see, e.g., supra page 9 & nn.12-13 (discussing memoranda and opinions). Section
7054, by purporting to use the appropriations power to enact a targeted restriction designed to
dictate the form and manner through which the President may conduct the nation's diplomacy,
is akin to these prior provisions. 18
V.
Accordingly, the Secretary would be justified in disregarding section 7054--and using
funds appropriated in title I for the purpose of paying the expenses of delegations to U.N. entities
chaired by terrorist list states.

/s/

DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel

17

See 20 Op. O.L.C. at 266 ("'Congress may not use its power over appropriations of public funds
to attach conditions to Executive Branch appropriations requiring the President to relinquish his constitutional
discretion in foreign affairs.'") (internal quotation marks omitted) (quoting 16 Op. O.L.C. at 28, quoting 14 Op.
O.L.C. at 42 n.3, quoting Constitutionality of Proposed Statutory Provision Requiring Prior Congressional
Notification for Certain CIA Covert Actions, 13 Op. O.L.C. 258, 261 (1989)).
18

Because there is no evidence that the Foreign Appropriations Act "without [section 7054] will not
function 'in a manner consistent with the intent of Congress,'" section 7054 is "severable." 16 Op. O.L.C. at 29
(quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987)). Accordingly, section 7054's invalidity does not
call into question the validity of any of the other provisions of the Act. See 20 Op. O.L.C. at 189 n. 21; 14 Op.
O.L.C. at 44 ("Because the [unconstitutional] condition is severable, the President may enforce the remainder of the
provision, disregarding the condition."); cf. Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (Att'y
Gen. Black) ("[I]f a condition . . . is void, it can have no effect whatever either upon the subject-matter or upon other
parts of the law to which it is appended . . . .").

12

UNCONSTITUTIONAL RESTRICTIONS ON ACTIVITIES OF THE OFFICE OF 

SCIENCE AND TECHNOLOGY POLICY IN SECTION 1340(A) OF THE 

DEPARTMENT OF DEFENSE AND FULL-YEAR CONTINUING 

APPROPRIATIONS ACT, 2011 

Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act,
2011 is unconstitutional as applied to certain activities undertaken pursuant to the President's
constitutional authority to conduct the foreign relations of the United States.
Most, if not all, of the activities of the Office of Science and Technology Policy that we have been
asked to consider fall within the President's exclusive power to conduct diplomacy, and OSTP's officers
and employees therefore may engage in those activities as agents designated by the President for the
conduct of diplomacy, notwithstanding section 1340(a).
The plain terms of section 1340(a) do not apply to OSTP's use of funds to perform its functions as
a member of the Committee on Foreign Investment in the United States.

September 19, 2011
MEMORANDUM OPINION FOR THE GENERAL COUNSEL, 

OFFICE OF SCIENCE AND TECHNOLOGY POLICY 

This memorandum confirms and elaborates upon advice this Office provided to you
regarding the permissibility of certain activities of the Office of Science and Technology Policy
("OSTP") involving Chinese officials, organizations, and experts, in light of section 1340(a) of
the Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No.
112-10, 125 Stat. 38, 123 ("Continuing Appropriations Act"). Section 1340(a) purports to
prevent OSTP from using appropriated funds "to develop, design, plan, promulgate, implement,
or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate,
or coordinate bilaterally in any way with China or any Chinese-owned company." In our view,
section 1340(a) is unconstitutional as applied to certain activities undertaken pursuant to the
President's constitutional authority to conduct the foreign relations of the United States. Most,
if not all, of the activities you have described to us fall within the President's exclusive power to
conduct diplomacy, and OSTP's officers and employees therefore may engage in those activities
as agents designated by the President for the conduct of diplomacy with the People's Republic
of China ("China" or "PRC"), notwithstanding section 1340(a). We also believe that the plain
terms of section 1340(a) do not apply to OSTP's use of funds to perform its functions as a
member of the Committee on Foreign Investment in the United States, even though those
functions include reviewing proposed asset purchases in the United States by Chinese businesses
and institutions.
I.
Congress established OSTP in 1976 within the Executive Office of the President to
"serve as a source of scientific and technological analysis and judgment for the President with
respect to major policies, plans, and programs of the Federal Government." 42 U.S.C. ?? 6611,
6614(a) (2006). The Office is headed by a Director, whose "primary function" is "to provide . . .
advice on the scientific, engineering, and technological aspects of issues that require attention at

Office of Legal Counsel in Volume 35

the highest levels of Government." Id. ?? 6611, 6613(a) (2006). The Director's statutory
responsibilities also include "defin[ing] coherent approaches for applying science and technology
to critical and emerging national and international problems"; "assess[ing] and advis[ing] on
policies for international cooperation in science and technology which will advance the national
and international objectives of the United States"; "advis[ing] the President of scientific and
technological considerations involved in areas of national concern including, but not limited to,
the economy, national security, homeland security, health, foreign relations, the environment,
and the technological recovery and use of resources"; and "perform[ing] such other duties and
functions . . . as the President may request." Id. ?? 6613(b)(1), 6614(a)(1), (9), (13) (2006).
In 1979, the United States and the People's Republic of China entered into an executive
agreement on cooperation in science and technology. Intended "to provide broad opportunities
for cooperation in scientific and technological fields of mutual interest," this agreement and
subsequent protocols obligate the two contracting parties to "encourage and facilitate, as
appropriate, the development of contacts and cooperation between government agencies,
universities, organizations, institutions, and other entities of both countries, and the conclusion of
accords between such bodies for the conduct of cooperative activities." Agreement Between the
Government of the United States of America and the Government of the People's Republic of
China on Cooperation in Science and Technology, U.S.-China, art. 1, 4, Jan. 31, 1979, 30 U.S.T.
35 ("1979 Agreement"). The 1979 Agreement authorizes the United States and China to enter
into subsequent accords to implement its terms, including accords to promote further cooperation
and address "intellectual property, funding and other appropriate matters." Id. art. 5. The 1979
Agreement also specifies that the United States and China "shall establish a US-PRC Joint
Commission on Scientific and Technological Cooperation," which "shall plan and coordinate
cooperation in science and technology, and monitor and facilitate such cooperation." Id. art. 10.
Under the agreement, each contracting party must "designate an Executive Agent" with
responsibility "for coordinating the implementation of its side of [all covered] activities and
programs." Id. The agreement stipulates that the agent of the United States "shall be the Office
of Science and Technology Policy." Id. Although the 1979 Agreement originally provided that
it would remain in force for only five years, it also provided for extension by mutual agreement
of the contracting parties, id. art. 11; and, in fact, the United States and China have repeatedly
agreed to extensions. Most recently, in a January 19, 2011 protocol (signed for the United States
by the Director of OSTP), the contracting parties extended the agreement until April 2016.
Protocol Extending the Agreement Between the Government of the United States of America
and the Government of the People's Republic of China on Cooperation in Science and
Technology, U.S.-China, Jan. 19, 2011; see also, e.g., Protocol Extending the Agreement
Between the Government of the United States of America and the Government of the People's
Republic of China on Cooperation in Science and Technology, U.S.-China, Apr. 18, 2006,
Temp. State Dep't No. 06-112, 2006 WL 2620339.
Since 1979, OSTP's officers and employees have had extensive contact and engagement
with their Chinese counterparts, as contemplated by the agreement. The Joint Commission on
Scientific and Technological Cooperation ("Joint Commission") established by the 1979
Agreement meets biannually to coordinate and manage the collaborative science and technology
activities of the U.S. and Chinese governments. Letter for the Office of Legal Counsel,
Department of Justice, from Rachael Leonard, General Counsel, Office of Science and
2


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

Technology Policy at 2 (June 2, 2011) ("Leonard Letter"). We understand that the Joint
Commission now manages numerous protocols, memoranda of understanding, and other
cooperative agreements or undertakings between U.S. agencies and Chinese government entities.
Id. at 3. These accords address subjects such as agriculture, energy, health, the environment,
earth sciences, marine research, and nuclear safety. Id. In addition, we understand that, in 2010,
a U.S.-China Dialogue on Innovation Policy ("Innovation Policy Dialogue") was established as
an activity of the Joint Commission. Id. The Innovation Policy Dialogue is a forum for sharing
best practices in promoting innovation, entrepreneurship, and mutually beneficial technology
activities and for identifying, analyzing, and overcoming barriers to innovation associated with
the two countries' policies. Id.
In recent appropriations legislation, Congress sought to restrict OSTP's interactions with
and activities involving China. Section 1340 of the Continuing Appropriations Act, enacted on
April 15, 2011, provides in full:
(a) None of the funds made available by this division may be used for the
National Aeronautics and Space Administration or the Office of Science and
Technology Policy to develop, design, plan, promulgate, implement, or execute a
bilateral policy, program, order, or contract of any kind to participate, collaborate,
or coordinate bilaterally in any way with China or any Chinese-owned company
unless such activities are specifically authorized by a law enacted after the date of
enactment of this division.
(b) The limitation in subsection (a) shall also apply to any funds used to effectuate
the hosting of official Chinese visitors at facilities belonging to or utilized by the
National Aeronautics and Space Administration.
125 Stat. at 123. You asked us, in light of this provision, whether and to what extent OSTP may
engage in activities related to the Joint Commission and the Innovation Policy Dialogue, as well
as other interactions with representatives of the Chinese government. Leonard Letter at 7-8.
II.
To the extent that funding conditions such as those set out in section 1340(a) bar the
President from conducting international diplomacy through his chosen agents, they
unconstitutionally interfere with the President's foreign affairs powers and may be disregarded
by Executive Branch agencies.
A.
As "the constitutional representative of the United States in its dealings with foreign
nations," United States v. Louisiana, 363 U.S. 1, 35 (1960), the President has "unique
responsibility" for the conduct of "foreign . . . affairs." Sale v. Haitian Ctrs. Council, Inc., 509
U.S. 155, 188 (1993); see also, e.g., First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S.
759, 767 (1972) (noting "the lead role of the Executive in foreign policy"). One well-established
component of the President's foreign affairs power is the "basic authority to conduct the Nation's
diplomatic relations." Memorandum for Joan E. Donoghue, Acting Legal Adviser, Department
3


Office of Legal Counsel in Volume 35

of State, from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Constitutionality of Section 7054 of the Fiscal Year 2009 Department of State, Foreign
Operations, and Related Programs Appropriations Act at 4 (June 1, 2009) ("Section 7054
Opinion"), available at www.justice.gov/olc/opinions.htm. To be sure, Congress "clearly
possesses significant article I powers in the area of foreign affairs, including with respect to
questions of war and neutrality, commerce and trade with other nations, foreign aid, and
immigration," id. at 4; and Congress's exercise of those powers has sometimes limited the
President's options in implementing foreign policy, id. at 9-10. But, "[i]n the conduct of
negotiations with foreign governments, it is imperative that the United States speak with one
voice. The Constitution provides that that one voice is the President's." Issues Raised by
Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 40 (1990) ("Foreign Relations
Authorization Bill") (quoting Message to the Senate Returning Without Approval the Bill
Prohibiting the Export of Technology for the Joint Japan-United States Development of FS-X
Aircraft, 2 Pub. Papers of George H.W. Bush 1042, 1043 (July 31, 1989)).
The President's exclusive prerogatives in conducting the Nation's diplomatic relations
are grounded in both the Constitution's system for the formulation of foreign policy, including
the presidential powers set forth in Article II of the Constitution,1 and in the President's
acknowledged preeminent role in the realm of foreign relations throughout the Nation's history.
See, e.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) ("the historical gloss on the
'executive Power' vested in Article II of the Constitution has recognized the President's 'vast
share of responsibility for the conduct of our foreign relations'" (quoting Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring))).2 This core
presidential power over the conduct of diplomacy includes the "exclusive authority to determine
the time, scope, and objectives" of international negotiations and the individuals who will
represent the United States in those contexts. Section 7054 Opinion at 8 & nn.9-10 (internal
quotation marks omitted) (collecting authorities); see also, e.g., Section 235A of the Immigration
and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (describing statute as "impermissibly
specify[ing] the precise subject matter of the Executive's communications with foreign
governments"). As one President observed in a veto message addressing a legislative provision
he determined could impede U.S. consultations with other nations:
It has . . . long been recognized--by the Framers, by the Supreme Court, and by
past Congresses--that the President, both personally and through his subordinates
in the executive branch, possesses the constitutional authority to communicate
freely with representatives of foreign governments, and to encourage foreign
nations to take such actions as the President believes are in our Nation's interest.

1

See U.S. Const. art. II, ? 1, cl. 1 (vesting "[t]he executive Power" in the President); id. art. II, ? 2, cl. 2
(enumerating the President's powers to "make Treaties," and "appoint Ambassadors . . . and Consuls"); id. art. II,
? 3 (establishing President's authority to "receive Ambassadors and other public Ministers").
2

See generally Section 7054 Opinion at 5-7 (discussing longstanding Executive Branch practice and early
congressional precedents regarding the President's foreign affairs powers); Foreign Relations Authorization Bill, 14
Op. O.L.C. at 39-41 (discussing historical examples showing that "the courts, the Executive, and Congress have all
concurred that the President's constitutional authority specifically includes the exclusive authority to represent the
United States abroad").

4


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

Message to the House of Representatives Returning Without Approval the Foreign Operations,
Export Financing, and Related Programs Appropriations Act, 1990, 25 Weekly Comp. Pres.
Doc. 1783, 1784 (Nov. 19, 1989) ("1990 Foreign Operations Appropriations Veto Message");
see also Message to the House of Representatives Returning Without Approval the Foreign
Relations Authorization Act, Fiscal Years 1990 and 1991, 25 Weekly Comp. Pres. Doc. 1806,
1806 (Nov. 21, 1989) (repeating same statement in veto message addressing similar provision in
another bill).
We have described the President's authority over "international negotiations" as
extending to "any subject that has bearing on the national interest." The President--Authority to
Participate in International Negotiations, 2 Op. O.L.C. 227, 228 (1978) ("Authority to
Participate in International Negotiations"). The Executive Branch has treated widely varied
subject matters as falling within the President's exclusive authority over diplomacy, including
discussion with foreign governments of international fishing restrictions, inquiries regarding the
status of certain Israeli soldiers missing in action, and requests by the United States for "covert
action" by a foreign government or private party.3 We also have deemed legislative restrictions
on the President's conduct of diplomacy impermissible even when they did not purport to limit
discussion of any particular subjects, but rather barred participation by Executive Branch
officials in certain international exchanges. See, e.g., Section 7054 Opinion at 1; Issues Raised
by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 25-26
(1992) ("Issuance of Official or Diplomatic Passports").
The President's power over the conduct of diplomacy also includes exclusive authority
"to determine the individuals who will represent the United States in those diplomatic
exchanges." Section 7054 Opinion at 8 (footnote and internal quotation marks omitted). As we
have recently explained, "ample precedent" demonstrates that Congress may not constitutionally
"dictate the modes and means by which the President engages in international diplomacy," and
"[s]pecifically[] . . . may not . . . place limits on the President's use of his preferred agents to
engage in a category of important diplomatic relations." Id. at 4, 5. We thus deemed
unconstitutional a provision that "effectively denie[d] the President the use of his preferred
agents--representatives of the State Department--to participate in delegations to specified U.N.
entities chaired or presided over by certain countries." Id. at 4.
The President also has plenary and exclusive authority to receive diplomatic
representatives of foreign governments, by virtue of his specific constitutional authority to
"receive Ambassadors and other public Ministers." U.S. Const. art. II, ? 3. As the Attorney
General noted over a century and a half ago, the President's "right of reception extends to 'all
possible diplomatic agents which any foreign power may accredit to the United States.'"
Presidential Power Concerning Diplomatic Agents and Staff of the Iranian Mission, 4A Op.
O.L.C. 174, 180 (1980) (quoting Ambassadors and Other Public Ministers of the United States,

3

See Statement on Signing the Sustainable Fisheries Act, 32 Weekly Comp. Pres. Doc. 2040, 2041
(Oct. 11, 1996); Statement on Signing Legislation to Locate and Secure the Return of Zachary Baumel, a United
States Citizen, and Other Israeli Soldiers Missing in Action, 35 Weekly Comp. Pres. Doc. 2305, 2305 (Nov. 8,
1999); Memorandum of Disapproval for the Intelligence Authorization Act, Fiscal Year 1991, 26 Weekly Comp.
Pres. Doc. 1958, 1958 (Nov. 30, 1990).

5


Office of Legal Counsel in Volume 35

7 Op. Atty. Gen. 186, 209 (1855)).4 Presidents therefore have regularly objected to legislation
purporting to bar their interaction with particular foreign officials.5
Finally, we believe the President's constitutional prerogatives to engage in international
negotiations and discussions through his preferred agents and to receive diplomatic agents from
abroad also prevent congressional interference with the participation by the President and his
agents in the activities, functions, and preparatory work necessary to carry out meaningful
diplomatic interaction with foreign officials. Without the authority to prepare and perform other
necessary related tasks, the diplomatic activities of the President and his agents would be unduly
constrained or foreclosed. Cf. Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. at 21-
22, 25-27 (concluding that a legislative provision was invalid insofar as it barred the issuance of
multiple official diplomatic passports to U.S. officials, because that practice facilitated
diplomacy and flowed from the Executive's authority "to determine the form and manner in
which the United States will maintain relations with foreign nations"); Bill to Relocate United
States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123, 125 (1995) ("Bill to Relocate
U.S. Embassy") ("Congress may not impose on the President its own foreign policy judgments as
to the particular sites at which the United States' diplomatic relations are to take place," because
"the venue at which diplomatic relations occur is itself often diplomatically significant").
B.
We turn now to the application of these principles to section 1340. Initially, we note
that the fact that section 1340 is an appropriations restriction, rather than a direct prohibition of
conduct, does not affect our analysis of whether the particular limits that section 1340 places on
OSTP's activities are constitutional. As we explained in our Section 7054 Opinion, Congress
may use its spending power to decline to appropriate money or place conditions on its
appropriations. Section 7054 Opinion at 10-11 (footnote omitted). Congress may not, however,
"'use the appropriations power to control a Presidential power that is beyond its direct control'"
or to "invade core Presidential prerogatives in the conduct of diplomacy." Id. at 11-12 (quoting
Presidential Certification Regarding the Provision of Documents to the House of
4

See also, e.g., Constitutionality of Closing the Palestine Information Office, an Affiliate of the Palestine
Liberation Organization, 11 Op. O.L.C. 104, 122 (1987) ("The right to decide whether to accord to the [Palestine
Liberation Organization] diplomatic status and what that diplomatic status should be is encompassed within the right
of the President to receive ambassadors. U.S. Const. art. II, ? 3. This power is textually committed to the Executive
alone.").
5

See, e.g., Statement on Signing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996,
32 Weekly Comp. Pres. Doc. 479, 479 (Mar. 12, 1996) (observing that "[a] categorical prohibition on the entry of
[certain individuals who confiscate or traffic in expropriated property] could constrain the exercise of my exclusive
authority under Article II of the Constitution to receive ambassadors and to conduct diplomacy"); Statement on
Signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, 26 Weekly Comp. Pres. Doc. 266,
267 (Feb. 16, 1990) (objecting on constitutional grounds to provisions restricting expenditure of funds for discussion
with representatives of the Palestine Liberation Organization whom the President knew to be directly involved in
terrorist activity and purporting to bar admission to the United States of foreign representatives to the United
Nations who had been found to have engaged in certain espionage activities directed against the United States or
its allies); cf. Statement on Signing H.R. 1777 Into Law, 23 Weekly Comp. Pres. Doc. 1547, 1548 (Dec. 22, 1987)
(concluding that prohibition on "establishment anywhere within the jurisdiction of the United States of an office
'to further the interests of' the Palestine Liberation Organization" created "no actual constitutional conflict" only
because the President had "no intention of establishing diplomatic relations with the PLO").

6


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

Representatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 267
(1996)) (citation and internal quotation marks omitted).6 At least insofar as it has otherwise
appropriated funds,7 Congress may not impair the President's conduct of foreign affairs by
imposing restrictions on expenditures that serve diplomatic purposes.
Applying the general legal principles and conclusions outlined in Part II.A. to the
particular facts presented here, we conclude that OSTP may engage in most, if not all, of the
activities you have described, notwithstanding section 1340(a). As a general matter, discussions
of the sort identified in your request--meetings and exchanges with Chinese officials regarding
policy concerns and possible cooperative undertakings or agreements relating to science and
technology--fall squarely within the scope of the President's constitutional authority to engage
in discussions with foreign governments. Such matters undoubtedly have a significant "bearing
on the national interest." Authority to Participate in International Negotiations, 2 Op. O.L.C. at
228. Indeed, in an indication of the significance of these matters for U.S. relations with China,
the State Department has informally advised us that the U.S. Embassy in Beijing includes
multiple officials, recognized as diplomatic agents by the Chinese government, who work
principally on facilitating cooperative activities with China on science and technology matters.
Cf. Vienna Convention on Diplomatic Relations art. 3, Apr. 18, 1961, 23 U.S.T. 3227 (entered
into force with respect to the United States Dec. 13, 1972) (identifying "developing . . .
economic, cultural, and scientific relations" as a function of a diplomatic mission).
In light of the diplomatic character of such activities, it is equally clear that the President
has exclusive constitutional authority to choose the agents who will engage in the activities. See,
e.g., Section 7054 Opinion at 8. That authority provides him with absolute discretion to choose
whomever he considers most suitable for a particular purpose. The circumstances here, in fact,
illustrate the practical importance of this presidential prerogative. OSTP, as noted, is the
designated "Executive Agent" of the United States for exchanges with China on science and
technology matters under a longstanding international agreement. But the current Director of
OSTP, Dr. John P. Holdren, is also an accomplished scientist with a distinguished resume who
serves as the Assistant to the President for Science and Technology. In addition to any
background knowledge, scientific expertise, and personal relationships Dr. Holdren may bring to
bear in particular diplomatic exchanges, it would be reasonable for the President to conclude that
the prestige associated with Dr. Holdren's official titles and qualifications may assist the United
States in achieving its diplomatic goals. Accordingly, barring Dr. Holdren's participation in
6

See also, e.g., Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 197 (1996)
("it has long been established that the spending power may not be deployed to invade core Presidential prerogatives
in the conduct of diplomacy"); Placing of United States Forces Under United Nations Operational or Tactical
Control, 20 Op. O.L.C. 182, 187-88 (1996) ("That Congress has chosen to invade the President's authority
indirectly, through a condition on an appropriation, rather than through a direct mandate, is immaterial."); Bill
to Relocate U.S. Embassy, 19 Op. O.L.C. at 126 ("it does not matter in this instance that Congress has sought
to achieve its objectives through the exercise of its spending power, because the condition it would impose on
obligating appropriations is unconstitutional"); Foreign Relations Authorization Bill, 14 Op. O.L.C. at 44
("the President may enforce the remainder of the provision, disregarding" an unconstitutional funding condition).
7

We have been asked only to address the effect of section 1340(a) and therefore presume, for purposes
of this opinion, that the expenditures were otherwise authorized. We need not and do not address the legality or
propriety of OSTP's expenditures under governing appropriations provisions apart from section 1340(a).

7


Office of Legal Counsel in Volume 35

diplomatic exchanges could severely impair the achievement of those goals by denying to the
President one important means of signaling the priority the United States attaches to science
and technology policy in its international relationships.
Our answers to your specific questions are as follows: You asked, first, whether Dr.
Holdren may continue to serve as co-chair of the Joint Commission and the Innovation Policy
Dialogue, and also whether he may represent the work of the Innovation Policy Dialogue in a
broader diplomatic forum known as the U.S.-China Strategic and Economic Dialogue ("S&ED
Dialogue"). You have described the Joint Commission as "the main body that facilitates science
and technology cooperation under the [1979] bilateral agreement." Leonard Letter at 2. The
Joint Commission "oversees, implements, and promotes expansion of [science and technology]
cooperation with China in areas of mutual benefit to the two countries." Id. You have described
the Innovation Policy Dialogue as a forum for "shar[ing] best practices in promoting innovation,
entrepreneurship, and mutually beneficial joint activities in high technology" and "especially"
for "identify[ing], analyz[ing], and overcom[ing] barriers to innovation and associated trade and
business activities that may be associated with innovation policies, intellectual-property rights
. . . policies, trade policies, etc., on either side." Id. at 3-4.
Based on your descriptions, we believe that most, if not all, activity associated with the
Director of OSTP's participation in these activities would involve either diplomatic discussion
of the two countries' policies, or the formation and refinement of international agreements and
other cooperative undertakings between the United States and China. The Joint Commission,
the Innovation Dialogue, and the S&ED Dialogue also all involve efforts to encourage China
"to take such actions as the President believes are in our Nation's interest." 1990 Foreign
Operations Appropriations Veto Message, 25 Weekly Comp. Pres. Doc. at 1783. These efforts
implicate the President's exclusive authority to determine the time, scope, and objectives of
discussions with China, as well as his exclusive authority to select the agent he prefers as the
representative of the United States in these discussions.
You also asked whether the Director of OSTP may "meet with Chinese officials and
technical experts on . . . issues, like the ongoing nuclear crisis in Japan, to discuss ways in
which the U.S. and China might work together on these topics." Leonard Letter at 8. Again,
we conclude that such meetings to discuss possible joint responses to an international crisis
and other possible "ways [the two countries] might work together" constitute quintessential
diplomatic activities and exchanges over which the President has exclusive authority.
Other activities you describe that support or facilitate exchanges between U.S. and
Chinese officials to discuss matters of mutual and ongoing concern also fall within the
Executive's exclusive power to conduct diplomacy. We include in this category expenditures
for: the Director of OSTP's work in preparation for Joint Commission and Innovation Policy
Dialogue meetings and presentations to the S&ED Dialogue; staff support work necessary to
prepare for and participate in such meetings and activities; associated travel and lodging
expenses, translation services, meeting room fees, and use of audiovisual equipment; and other
administrative support services. See id. at 7-8. Such expenditures for preparation, support, and
facilitation of diplomatic discussion fall within the President's exclusive authority when they
are necessary to carry out meaningful diplomatic initiatives. Accordingly, at least insofar as
Congress has appropriated funds for agency staff work and expenses generally, section 1340(a)
8


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

may not constrain the use of those funds for expenditures necessary to support diplomatic
activities. Cf. Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. at 25-27 (deeming
unconstitutional an appropriations rider that barred use of funds for issuance of multiple official
passports to diplomats who would be denied entry to certain Arab League states and thus be
unable to represent the United States in important diplomatic exchanges if they used a passport
showing prior travel to Israel); Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 435
(1990) (White, J., concurring) (rejecting view "that Congress could impair the President's pardon
power by denying him appropriations for pen and paper").
We also would include in this category the support activities for the "experts-level
working group" associated with the Innovation Policy Dialogue. Your submission to us
indicates that there is "[a]ssociated with the ministerial level [Dialogue on Innovation Policy] . . .
an experts-level working group that is addressing a variety of key technical issues, including 'on
the ground' monitoring of whether commitments are being observed in practice." Leonard Letter
at 3. You have asked whether OSTP employees may "support the experts-level working group
(made up of non-government officials from American and Chinese businesses and universities)
in their role of providing information and advice on barriers to the successful fulfillment of bi-
lateral agreements," and whether OSTP may "make recommendations to the co-chairs of the
Innovation Dialogue regarding policies that will enhance market access for US companies."
Id. at 8. To the extent that the OSTP employees are supporting activities of the experts-level
working group that provide policymakers with information and analysis needed to facilitate
dialogue with Chinese officials, or the formulation of joint policy initiatives, the activities of
OSTP employees would be facilitating diplomacy and would fall within the President's exclusive
constitutional authority over diplomatic relations. Likewise, OSTP employee activity necessary
to "mak[ing] recommendations" to diplomatic negotiators on particular policy options facilitates
diplomatic negotiations and would fall within the President's exclusive authority.
Finally, you asked whether OSTP may provide "small gifts" and meals for visiting
Chinese delegations. We believe that, to the extent Congress has appropriated funds to OSTP
for such purposes generally,8 OSTP's decision to use those funds to provide small gifts and
meals to particular foreign officials falls within the Executive's exclusive constitutional
prerogatives. Congress may not impose restrictions on the funds it has appropriated that would
interfere with the President's conduct of diplomacy. Participation in social interactions with
foreign officials, exchanges of customary gifts, and the extension of the courtesies associated
with diplomatic meetings can constitute an expected element of international diplomacy and may
be necessary to facilitate diplomatic exchange or to repay hospitality afforded to U.S. delegations
by the Chinese government. The President could reasonably conclude that the failure of the
United States to engage in these activities would harm the standing and influence of the United
States and therefore impair our ability to achieve diplomatic objectives.9 Congress itself has
recognized the diplomatic significance of these types of expenditures by specifically authorizing
many agencies, including OSTP, to expend funds for "official reception and representation,"
8

As noted above, see supra n. 7, we assume for purposes of this opinion that appropriated funds are
available in general for the purposes you have described; we address only the effect of section 1340(a) on such
appropriations.
9

Cf. Section 7054 Opinion at 10 (objecting to restrictions on U.S. delegations to the United Nations on the
ground that failure to send such delegations would compromise the "standing and influence" of the United States).

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Office of Legal Counsel in Volume 35

a practice that "originated," according to the Comptroller General, "from the need to permit
officials of agencies with significant presence in foreign countries to reciprocate courtesies
extended to them by foreign officials." Matter of: United States Trade Representative--Use of
Reception and Representation Funds, B-223678, 1989 WL 240750, at *4 n.2 (Comp. Gen. June
5, 1989).10
Though we have concluded that section 1340(a) is unconstitutional in the many
applications we have discussed, the provision is constitutional in some other applications. For
example, its broad terms--restricting any use of funds "to develop, design, plan, promulgate,
implement, or execute a bilateral policy, program, order, or contract of any kind to participate,
collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company"--
may well bar expenditures for activities that are neither diplomatic in character nor otherwise
within the exclusive constitutional authority of the President. Congress may restrict the
implementation of previously negotiated agreements, insofar as such restrictions do not interfere
with activity that is itself diplomatic. Congress may also "modify the domestic legal effects" of
an agreement, even if doing so has repercussions for the United States on the international stage.
See, e.g., Validity of Congressional-Executive Agreements that Substantially Modify the United
States' Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 389 (1996) (noting the wellestablished nature of this congressional power).11 Thus, whether Congress may validly prevent
Dr. Holdren from performing work "required to . . . follow up" on meetings of the Joint
Commission and Innovation Policy Dialogue--another type of activity you inquired about--may
depend on the nature of the follow-up work.
To provide a concrete illustration, Congress could decline to appropriate funds for OSTP
participation in a conference bringing together the U.S. business community to determine how
to meet energy efficiency benchmarks, even if those benchmarks were articulated in agreements
negotiated between OSTP and China. On the other hand, Congress may not bar follow up work
after Joint Commission or Innovation Policy Dialogue meetings that is itself diplomatic in
character or necessary to the effective conduct of diplomacy, including efforts to evaluate an
10

Congress appropriated funds for OSTP most recently in the Continuing Appropriations Act, div. B, tit. I,
? 1101(a)(6), 125 Stat. at 103, which carried forward appropriations levels from the Consolidated Appropriations
Act, 2010, Pub. L. No. 111-117, tit. III, 123 Stat. 3034, 3142 (2009). The latter statute appropriated funds "not to
exceed $2,500 for official reception and representation expenses" of OSTP. Id. A permanent authorization statute
for the State Department similarly recognizes that expenditures for "official receptions" and other "entertainment
and representational expenses" may be necessary "for the proper representation of the United States and its
interests." 22 U.S.C. ? 4085; see also U.S. General Accounting Office, GAO-04-261SP, Principles of Federal
Appropriations Law, vol. I, at 4-135 (3d ed. 2004) ("the State Department would find it difficult to accomplish its
mission if it could not spend any money entertaining foreign officials"); cf. The President--Interpretation of 18
U.S.C. ? 603 as Applicable to Activities in the White House, 3 Op. O.L.C. 31, 42 (1979) (noting, in connection with
interpreting a particular statute, that "[p]articipation in ceremonial dinners and attendance at other gatherings in
furtherance of the conduct of the President's constitutional duties," including "entertainment of foreign dignitaries,"
are "ordinarily regarded as essential parts of the President's job").
11

See also, e.g., Breard v. Greene, 523 U.S. 371, 376 (1998) ("'an Act of Congress . . . is on a full parity
with a treaty, and . . . when a statute which is subsequent in time is inconsistent with a treaty, the statute to the
extent of the conflict renders the treaty null'" (quoting Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion))
(first ellipsis in original)); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) ("Congress by
legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made
between this country and another country which had been negotiated by the President and approved by the Senate").

10


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

agreement's effectiveness in order to determine how best to proceed in future diplomatic
discussions. As you have explained, "[t]he negotiation of a new agreement or modification
of an existing agreement often requires knowledge of the implementation history of current
agreements." Leonard Letter at 8.
In sum, at least insofar as Congress has otherwise appropriated funds to OSTP, Congress
may not impair the President's conduct of foreign affairs through restrictions targeted at OSTP
expenditures for diplomatic purposes. In many instances, therefore, the restrictions that section
1340 imposes are unconstitutional. But, given that section 1340 is likely constitutional in certain
applications, the appropriate course of action is to treat the unconstitutional applications of
section 1340(a) as effectively severed.12 See Foreign Relations Authorization Bill, 14 Op.
O.L.C. at 44-45 ("A presumption in favor of the severability of unconstitutional provisions exists
so long as what remains of the statute is capable of functioning independently.") (collecting
cases). Moreover, there is no reason to believe that the Continuing Appropriations Act "will not
function in a manner consistent with the intent of Congress" if the unconstitutional applications
of section 1340(a) are severed.13 Section 7054 Opinion at 12 n.18 (internal quotation marks
omitted). The Continuing Appropriations Act, of which section 1340 is a part, as well as section
1340 itself, may continue to be applied as if the Act did not include the unconstitutional funding
restrictions. See id.
III.
You have also asked whether, under section 1340(a), OSTP may continue to participate
in the Committee on Foreign Investment in the United States ("CFIUS"), a federal Government
entity that reviews certain transactions that have national security implications. See 50 U.S.C.
App. ? 2170 (2006 & Supp. III 2009); Exec. Order No. 11858, reprinted as amended in 50
U.S.C. App. ? 2170 app. at 823-25. We conclude that section 1340(a) is best understood not
to restrict OSTP's participation in CFIUS.
CFIUS is composed of the heads of federal agencies and offices specified by statute and
executive order, one of which is OSTP. 50 U.S.C.A. App. ? 2170(k); Exec. Order No. 11858
12

The general rule that unconstitutional provisions in Acts of Congress should be severed, leaving the
remainder of the Act in question valid and in place, applies equally to situations in which only certain applications
of a provision would be unconstitutional. See generally United States v. Booker, 543 U.S. 220, 247 (2005)
("[S]ometimes severability questions (questions as to how, or whether, Congress would intend a statute to apply) . . .
arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied
in a significant number of instances . . . . [S]everability questions can arise from unconstitutional applications of
statutes." (citation and internal quotation marks omitted)).
13

To the contrary, although the chairman of the House appropriations subcommittee with jurisdiction over
OSTP noted in a floor statement that the appropriations bill included "language prohibiting NASA and the Office of
Science and Technology in the White House from participating in bilateral cooperation with China," 157 Cong. Rec.
H2741 (daily ed. Apr. 14, 2011) (statement of Rep. Wolf), statements by this same Representative and other
Members of Congress emphasized the bill's overriding purpose of establishing appropriations levels for the federal
Government as a whole, including OSTP, for the remainder of the fiscal year. See, e.g., id. (expressing "very strong
support" for the bill and noting that it "preserves strong funding levels for critical national priorities"); 157 Cong.
Rec. H2742 (daily ed. Apr. 14, 2011) (statement by Rep. Fattah, ranking member of same appropriations
subcommittee) ("[i]n our section of this bill . . . it's very, very important that we get out of the temporary
[continuing resolution] business").

11


Office of Legal Counsel in Volume 35

? 3, reprinted as amended in 50 U.S.C. App. ? 2170 app. at 824. CFIUS reviews certain
transactions "by or with any foreign person which could result in foreign control [as defined
in applicable regulations] of any person engaged in interstate commerce in the United States."
50 U.S.C. App. ? 2170(a)(2), (3), (b); see also 31 C.F.R. ? 800-204 (2010) (defining "control");
id. ?? 800.301-800.303 (discussing scope of covered transactions).
In certain circumstances, including any case where the transaction "could result in
the control of any person engaged in interstate commerce in the United States by a foreign
government or an entity controlled by or acting on behalf of a foreign government," CFIUS must
"conduct an investigation of the effects of [the] transaction on the national security of the United
States, and take any necessary actions in connection with the transaction to protect the national
security of the United States." 50 U.S.C. App. ? 2170(a)(3), (b)(1)(B), (b)(2)(A); Exec. Order
No. 11858 ? 6(b), reprinted as amended in 50 U.S.C. App. ? 2170 app. at 824. Where
appropriate, CFIUS or, on its behalf, a "lead agency" designated by the Secretary of the Treasury
(who is a member of CFIUS and serves as its chairperson) may "negotiate, enter into or impose,
and enforce any agreement with any party to [a] covered transaction in order to mitigate any
threat to the national security of the United States that arises as a result of the covered
transaction." 50 U.S.C. App. ? 2170(k)(2), (3), (5), (l); Exec. Order No. 11858 ? 7(a)-(c),
reprinted as amended in 50 U.S.C. App. ? 2170 app. at 824. In addition, the President has
authority, following a CFIUS investigation, to "take such action for such time as the President
considers appropriate to suspend or prohibit any covered transaction that threatens to impair
the national security of the United States." 50 U.S.C. App. ? 2170(d); Exec. Order No. 11858
? 6(c), reprinted as amended in 50 U.S.C. App. ? 2170 app. at 824.
The Director of OSTP's participation in CFIUS could involve OSTP in the review and
approval or disapproval of transactions involving "China or any Chinese-owned company."
Continuing Appropriations Act ? 1340(a). Indeed, in particular cases, either as a CFIUS member
or as the designated "lead agency," OSTP might be involved in negotiating, imposing, or
enforcing agreements or other conditions that CFIUS deems necessary to protect U.S. national
security with respect to such transactions. But while such mitigation agreements may be a form
of "contract," we do not understand them to fall within the scope of section 1340(a)'s funding
restrictions.
By its plain terms, section 1340(a) restricts OSTP's use of funds only with respect to
"a bilateral policy, program, order, or contract of any kind to participate, collaborate, or
coordinate bilaterally in any way with China or any Chinese-owned company." This language
applies only to agreements between the United States and China or any Chinese-owned company
that are both "bilateral" and in some sense cooperative. See 157 Cong. Rec. H2741 (daily ed.
Apr. 14, 2011) (statement of Rep. Wolf) (describing provision as prohibiting OSTP "from
participating in bilateral cooperation with China"). Mitigation agreements negotiated by CFIUS
or a CFIUS lead agency are not bilateral cooperative undertakings, because they are negotiated
to satisfy regulatory requirements imposed by the United States, through the CFIUS process,
as a condition on a desired transaction. Likewise, OSTP's other activities as a CFIUS member,
as you have described them to us, involve review, investigation, and regulation of transactions
involving foreign-controlled parties and thus would not involve OSTP in "develop[ing],
design[ing], plan[ning], promulgat[ing], implement[ing], or execut[ing]" a bilateral cooperative
undertaking covered by section 1340(a). Accordingly, OSTP's CFIUS-related activities with
12


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy

respect to transactions involving China or any Chinese-owned company are not restricted by
section 1340(a).

/s/
VIRGINIA A. SEITZ
Assistant Attorney General

13


241 CANNON HOUSE OFFICE BUILDING
WASHINGTON, DC 20515?4610

FRANK R. WOLF

10TH DISTRICT, VIRGINIA

 

 

 

 

 

 

{202} 225?5136
COMMITTEE ON APPROPRIATIONS 13873 PARK CENTER ROAD
SUITE 130
SUBCOMMITTEES: HERNDON, VA 20171
[703} 709?5800
{80019453653 
110 NORTH CAMERON STREET
0 WINCHESTER, VA 22601
STATE AND FOREIGN ERA {540} 667?0990
itemize of Representatives IsooIsso-saesumswei
LANTOS 
OCtOber 13:  1 wolf.house.gov

HUMAN RIGHTS COMMISSION

The Honorable Eric H. Holder, Jr.
Attorney General

U.S. Department of Justice

950 Ave NW Rm 5111
Washington DC 20530

Dear Attorney General Holder:

I write to share the enclosed opinion from the Government Accountability Office (GAO)
that found that the White House Of?ce of Science and Technology Policy (OSTP), led by Dr.
John Holdren, in violation of the law due to its continued bilateral dealings with the Chinese
government. -

I requested the GAO investigation earlier this year after Dr. Holdren de?ed the provision
prohibiting OSTP and NASA from engaging in bilateral discussions with the Chinese
government included in section 1340 of the Department of Defense and Full Year Continuing
Appropriations Act, 2011. Just days after appearing before the House Commerce-Justice.-
Science ApprOpriations Subcommittee to discuss, among other things, the implementation of

- section 1340, Dr. Holdren participated in the U.S.-China Strategic and Economic Dialogue
which took place between May 6-10. Dr. Holdren failed to notify the subcommittee of
his involvement during the hearing and I only learned of his participation in a letter delivered to
the Subcommittee on May 5. 

The GAO ?nding clearly af?rms the meaning of the section 1340 prohibition, stating:

?The plain meaning of section 1340 is clear. OSTP may not use its appropriations to
participate. collaborate, or c00rdinate bilaterally in any way with China or any Chinese?
owned companies. Here, participation in the Innovation Dialogue and 
contravened the appropriations restriction. The Director opened the Innovation Dialogue
and moderated discussions therein. OSTP staff prepared materials for and attended the
discussions. OSTP then invited U.S. and Chinese of?cials to a dinner that it paid for
using its appropriation. Finally, OSTP participated in the during which the
Director spoke on multiple occasions, including on climate science. OSTB did not
identify, nor are we aware of, any speci?c authority to do so that was enacted after the
date of the Continuing Appropriations Act, 2011.

does not deny that it engaged in activities prohibited by section 1340.?

THIS STATIONERY PRINTED ON PAPER MADE OF RECYCLED FIBERS

The Honorable Eric H. Holder Jr.
October 13, 2011
Page 2

In assessing non-compliance with section 1340, the GAO ?nding also rebuts a
September 19 memorandum prepared by the uStice- Department?s Of?ce of Legal Counsel
(OLC) 0n the constitutionality of the provision. According to the GAO ?nding, ?In our View,
legislation that was passed by COngress and signed by the President. thereby satisfying the
Constitution's bicarneralism and presentment requirements. is entitled to a heavy presumption in
favor of constitutionality.? 

Finally, the GAO ?nding indicates that Dr. Holdren has clearly violated the Anti-
De?ciency Act. The ?nding notes, ?As a consequence of using its appropriations in violation of
section 1340, OSTP violated the Antide?ciency Act. Under the Antide?ciency Act, an of?cer or
employee of the U.S. Government may not make or authorize an expenditure or obligation
exceeding an amount available in an By using its ?scal year 2011 appropriation
- in a manner speci?cally prohibited. OSTP violated the Antide?ciency Act. Accordingly. OSTP
should report the violation as required by the act.?

As attorney general, it is your responsibility to ensure that the nation?s laws are upheld
and enforced. I expect that you will: 1) ensure comprehensiVe enforcement of section 1340 by
immediately rescinding the misguided OLC memorandum that sought to provide legal
justi?cation for non-Compliance with the law, and 2) hold Dr. Holdren to full account
for his violation of the Anti-De?ciency Act by ensuring that he complies with all reporting
requirements and Other provisiOns of that law. 

I look forward to your prompt response.

  
  

Commerce-In  ce-ScienCe Subcommittee
House Appropri ions Committee 

  

 if 

VI ates Government Accountability Office
Washington, DC 20548

  

 

84321982
October 11, 2011

The Honorable Frank R. Wolf
Chairman, Subcommittee on Commerce
Justice, Science, and Related Agencies
Committee on Appropriations
House of Representatives

Subject: Of?ce of Science and Technology PolicyuBilateral Activities with China 

This responds to your request for our opinion on the propriety of activities
undertaken in May 2011 by the Of?ce of Science and Technology Policy (OSTP)
with representatives of the government of the People?s Republic of China. Letter
from Representative Wolf to the Comptroller General (May 11, 2011) (Request
Letter). Speci?cally, you point to meetings with Chinese representatives during the
U.S.-China Dialogue on innovation Policy (Innovation Dialogue) and the U.S.-China
Strategic and Economic Dialogue held in Washington, DC, in May 2011.
You ask whether OSTP violated section 1340 of the Departmenth Defense and

uII?Year Continuing Appropriations Act, 2011. Section 1340 prohibits the use. of
OSTP appropriations for bilateral activities between OSTP and China, or Chinese-
owned companies, unless Specifically authorized by laws enacted after the date of
the appropriations act. Pub. L. No. 112-10, div. 8, title 125 Stat. 38, 123 (Apr. 15,
2011) - - ..

As explained below, we conclude that use of appropriations to fund its
participation in the Innovation Dialogue and the violated the prohibition in
section 1340. In addition, because section 1340 prohibited the use 
appr0priations for this purpose, involvement in the Innovation Dialogue and
the resulted in obligations in excess of appropriated funds available to 
as such, OSTP violated the Antideficiency Act, 31 U.S.C. 1341 

Our practice when rendering legal opinions is to obtain the views of the relevant
agency to establish a factual record and to elicit the agency's legal position on the
subject matter of the request. GAO, Procedures and Practices for Legal Decisions
and Opinions, GAO-06-1064SP (Washington, DC: Sept. 2006), available at
In this case, OSTP provided us with its legal
views and relevant supporting materials. Letter from General Counsel, OSTP to
Assistant General Counsel, GAO, Re: 8?321982, Office of Science and Technology
Policy Bilateral Activities with China (June 23, 2011) (OSTP Response). We also

spoke by telephone with General Counsel to ask questions about 
June letter. Telephone Conversation with General Counsel. OSTP (Aug. 4, 2011)
(August Conversation). See also Letter from General Counsel, OSTP to Senior
?Attorney, GAO, Re: Follow-up to August 4, 2011, Telephone Call (Aug. 29, 2011)
(OSTP August Letter). .

BACKGROUND

The Presidential Science and Technology Advisory Organization Act of 19761
established OSTP to ?serve as a source of scienti?c and technological analysis and
judgment for the President with respect to major policies, plans, and programs of the
Federal Government.? 42 U.S.C. 6614(a). Part of the agency?s mission is to
?advise the President of scientific and technological considerations involved in areas
of' national concern including . . . foreign relations. . .  42 U.S.C. 6613(b)(1).

Between May 6 and 10, 201 OSTP ?led and participated in a series of meetings
with Chinese officials" as part Of the Innovation Dialogue and the OSTP
Response, at 3. On May 6, 2011, the OSTP Director and Chinese Minister of
Science and Technology participated in the Innovation Dialogue. According to
OSTP, a goal of the Innovation Dialogue was to ?serve as a forum for persuading the
. rollback of discriminatory, counterproductive Chinese procurement and intellectual
property policies. . . OSTP Response, at 3. Among'the topics discussed were
?market access and technology transfer; innovation funding and incentives;
standards and intellectual property;- and government intervention." OSTP Response,
at 4. OSTP informed our of?ce that the OSTP Director opened and closed the
Innovation Dialogue and Served on discussion panels. OSTP August Letter, at 1.
OSTP staff helped the Director prepare for and participate during the meetings. Id.
See OSTP Response, at 5.

On May 8, 2011, OSTP hosted a dinner to honOr Chinese dignitaries. ?Six U.S.
participants attended the dinner, along with an unidenti?ed number of ?staff-level
employees from other federal agencies.? OSTP Response, at 4, M3. The Director
is the only liSted dinner attendee from OSTP. There were six Chinese invitees. Id.

On May 9 and 10, 2011, OSTP participated. in the The purpose of the 
was to bring together various US. and Chinese government officials to ?discuss a
broad range of issues between the two nations,? including on matters regarding
trade and economic cooperation. Department of the Treasury, U. 8. ?China
Strategic and Economic Dialogue, available at
(last visited Oct. 4, 2011). The
Secretary of the Treasury and the Secretary of State co-chaired the along
with the Vice Premier and State Councilor of the People's Republic of China. Id.
Topics of discussion included ?enhancement of trade and investment cooperation;

 

 1. Pub. L. No. 94-282, title II, 90 Stat. 459, 463-68 (May 11, 1976), 42 U.S.C.
6611?6624 

Page 2 84321982

an overview of bilateral relationships; cooperation on
clean energy, energy security, climate change, and environment; customs
c00peration; and energy secunty.? OSTP Response, at 4. The OSTP Director
spoke many times during the various sessions, including on U.S.?China cooperation
on climate science. August Conversation. OSTP also had at least one staff
member attend the in addition to the Director. Id.

The Full?Year Continuing Appropriations Act, 2011, enacted into law on April 15,
2011, included appropriations for OSTP for ?scal year 2011 in title of division B.
Pub. L. No. 112-10, div. B. Section 1340 of title provides:

?None of the funds made available by this division may be used for the
National Aeronautics and Space Administration or the Of?ce of
Science and Technology Policy to develop, design, plan, promulgate,
implement, or execute a bilateral policy, program, order, or contract of
any kind to participate, collaborate, or coordinate bilaterally in any way
with China or any Chinese-owned company unless such activities are
specifically'authorized by a law enacted after the date of enactment of
this division."

Pub. L. No. 112?1o,? 1340.

OSTP informed us that it incurred costs of approximately $3,500 to participate in the
week?s activities, including the cost of staff time for nine employees preparing for
and participating in the as-well as the cost .of the dinner OSTP hosted
on May 8. OSTP Response, .at 5.

DISCUSSION

At issue in this opinion is whether OSTP violated section 1340?s proscription, and, if
so, whether the agency violated the Antide?ciency Act.

As with any question involving the interpretation of statutes, our analysis begins with
the plain language of the statute. Jimenez v. Quarterman, 555 U.S.113 (2009).

When the language of a statute is ?clear and unambiguous on its face, it is the plain
meaning of that language that controls.? B-307720, Sept. 27, 2007; 

Feb. 27, 2006; see also v. Alworth?Stephens. Co., 267 US. 364, 370 (19-25).

The plain meaning of Section 1340 is clear. OSTP may not use its appropriations to
participate, collaborate, or coordinate bilaterally in any way with China or any
Chinese?owned companies. Here, participation in the innovation Dialogue
and contravened the appropriations restriction. The Director opened the
Innovation Dialogue and moderated discussions therein. OSTP staff prepared
materials for and'attended the discussions. OSTP then invited US. and Chinese
of?cials to a dinner that it paid for using its appropriation. Finally, OSTP participated
in the during which the Director Spoke on multiple occasions, including on

Page 3 8-321982

climate science. OSTP did not identify, nor are we aware of, any specific authority
to do so that was enacted after the date of the Continuing Appropriations Act, 2011.

OSTP does not deny that it engaged in activities prohibited by section "1340. OSTP
Response; August Conversation. OSTP argues, instead, that section 1340, as
applied to the events at issue here, is an unconstitutional infringement on the
President's constitutional prerogatives in foreign affairs.2 OSTP Response, at 1;
August Conversation; Letter from Director, OSTP, to the Speaker or the House of
Representatives, Re: Section 1340 of the Department of Defense and Full-Year 
Continuing Appropriations Act of 201 1 (May 16, 2011) (OSTP May 16 Letter). OSTP
claims that section 1340 is "unconstitUtional to the extent its restrictions on OSTP's
use of funds'would bar the President from employing his chosen agents for the
conduct of international diplomacy.? OSTP Response, at 1. OSTP asserts that the
President has ?exclusive constitutional authority to determine the time, place,
manner, and content of diplomatic communications and to select the agents who will
represent the-President in diplomatic interactions with foreign nations." OSTP
May 16 Letter. OSTP argues that, for this reason, Congress may not ?use its
- appropriations power to infringe upon the President's exclusive constitutional
authority in this area." ld. -

It is not our role nor within our province. to opine upon or adjudicate the
constitutionality of duly enacted statutes such as section 1340. See Nov.
13, 2002; see also Jan. 30, 2006. In our view, legislation that was
passed by Congress and signed by the President, thereby satisfying the
Constitution?s bicameralism and presentment requirements, is entitled to a heavy
presumption in favor of constitutionality. 8-30291'1, Sept. 7, 2004. See Bowen v.
Kendrick, 487 US. 589, 617 (1988), Determining the constitutionality of legislation
is a province of the courts. US. Const. art. Ill, 2. Cf. Fairbank v. United States,
181 US. 283, 285 (1901). Therefore, absent a judicial opinion from a federal court

 

2 The Department of Justice characterizes section 1340 as a "valid limitation on
use of appropriated funds only to the extent that its restrictions do not
infringe upon the President's exclusive constitutional authority over international
diplomacy.? Letter from Assistant Attorney General, Of?ce of Legislative Affairs to
Representative Wolf (June 28, 2011). Justice advised OSTP that OSTP was
"permitted to engage in diplomatic activities 'with Chinese representatives to the
extent that it would be doing so as an agent of the President for diplomacy with?
China, notwithstanding Section 1340.? Id. 'See Memorandum Opinion for the
General Counsel, OSTP, Unconstitutional Restrictions on Activities of the Office of
Science and Technology Policy in Section 1340(a) of the Department of Defense

and Full-Year Continuing Appropriations Act, 2011, OLC Opinion, Sept. 19, 2011,
available at (last visited Oct. 4,
2011). OSTP asserts that the U.S.-China Agreement on Cooperation in Science
and Technology designates OSTP as the executive branch authority charged with
"collaboration and coordination with China in support of U.S.-China science and
technology policy cooperation." OSTP Response, at3. 



Page 4 . 8?321 982

of jurisdiction that a particular provision is unconstitutional,_we apply laws as written
to the facts pre?ented. See Nov. 9, 1973. In 1955, for example, we
stated that we "accord full effect to the clear meaning of an enactment by the
Congress so long as it remains unchanged by legislative action and unimpaired by
judicial determination.? 3?124985, Aug. 17, 1955; We see no reason to deviate
here. Indeed, we are unaware of any court that has had occasion to review the
provision, let alone adjudicate its constitutionality, nor did OSTP advise of any
judicial determination or ongoing litigation.

As a consequence of using its appropriations in violation of section 1340, OSTP
violated the Antideficiency Act. Under the Antideficiency Act, an officer or employee
of the US. Government may not'make or authorize an expenditure or obligation
exceeding an amount available in an appropriation. 31 U.S.C. 1341. See
8-300192, Nov. 13, 2002. If Congress speci?cally prohibits a particular use of
appropriated funds, any obligation for that purpose is in excess of the amount
available. 71 Comp. Gen. 402 (1992); 62 Comp. Gen. 692 (1983); 60 Comp.

Gen. 440 (1981). By using its ?scal year 2011 appropriation in a manner speci?cally
prohibited, OSTP violated the Antide?ciency Act. Accordingly, OSTP should report
the violation as required by the act.3

Sincerely,

 

H. Gibson
General Counsel

 

3 See 31 U.S.C. 1351. The Office of-Management and Budget has published
requirements for executive agencies for reporting violations. OMB Circular No.
Preparation, Submission, and Execution of the Budget, 145, 145.8,
available at a1?1 current year a11_ too (last
visited Oct. 4, 2011). 

Page 5 . 3-321982