Prohibition of Spending for Engagement of the Office of Science and Technology Policy with China

Prohibition of Spending for Engagement of the Office of
Science and Technology Policy with China
Section 1340(a) of division B of the Department of Defense and Full-Year Continuing
Appropriations Act, 2011, which purports to prevent the Office of Science and
Technology Policy from using appropriated funds “to develop, design, plan, promul-
gate, 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,” is unconstitutional as applied to certain activities
undertaken pursuant to the President’s constitutional authority to conduct the foreign
relations of the United States.
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 divi-
sion B of the Department of Defense and Full-Year Continuing Appro-
priations Act, 2011, Pub. L. No. 112-10, 125 Stat. 38, 102, 123 (“Contin-
uing 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 func-
tions as a member of the Committee on Foreign Investment in the United
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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.” Presidential Science and Tech-
nology Advisory Organization Act of 1976, Pub. L. 94 –282, § 205(a), 90
Stat. 463, 464 (codified as amended at 42 U.S.C. § 6614(a)). 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 the highest levels of Government.” 42 U.S.C.
§ 6613(a). 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 tech-
nology which will advance the national and international objectives of
the United States”; “advis[ing] the President of scientific and technologi-
cal 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).
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, arts. 1, 4, Jan. 31, 1979, 30 U.S.T. 35 (“1979 Agreement”).
The 1979 Agreement authorizes the United States and China to enter into

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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 facili-
tate such cooperation.” Id. art. 10.
Under the agreement, each contracting party must “designate an Execu-
tive Agent” with responsibility “for coordinating the implementation of its
side of [all covered] activities and programs.” Id. The agreement stipu-
lates 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 exten-
sions. 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 Technolo-
gy, 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 con-
tact 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 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

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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 tech-
nology 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, promul-
gate, implement, or execute a bilateral policy, program, order, or
contract of any kind to participate, collaborate, or coordinate bilater-
ally 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 Ad-
ministration.
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 Commis-
sion 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.

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 35 Op. O.L.C. 116 (2011)

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 poli-
cy”). One well-established component of the President’s foreign affairs
power is the “basic authority to conduct the Nation’s diplomatic rela-
tions.” Prohibition of Spending to Send Delegations to U.N. Agencies
Chaired by Countries That Support International Terrorism, 33 Op.
O.L.C. 221, 226 (2009) (“Delegations to U.N. Agencies”). 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 226 –27; and Congress’s exercise of those powers has sometimes lim-
ited the President’s options in implementing foreign policy, id. at 234.
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 For-
eign 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 (July 31, 1989),
2 Pub. Papers of Pres. George H.W. Bush 1042, 1043 (1989)).
The President’s exclusive prerogatives in conducting the Nation’s dip-
lomatic 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

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”).

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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., con-
curring))). 2 This core presidential power over the conduct of diplomacy
includes the “exclusive authority to determine the time, scope, and objec-
tives” of international negotiations and the individuals who will represent
the United States in those contexts. Delegations to U.N. Agencies, 33 Op.
O.L.C. at 231 (citations and internal quotation marks omitted); see also,
e.g., id. at 231–32 nn. 9–10 (collecting authorities); Section 235A of the
Immigration and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (de-
scribing 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.
Message to the House of Representatives Returning Without Approval the
Foreign Operations, Export Financing, and Related Programs Appropria-
tions 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 negoti-
ations” as extending to “any subject that has bearing on the national

2 See generally Delegations to U.N. Agencies, 33 Op. O.L.C. at 227–30 (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”).

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interest.” The President—Authority to Participate in International Nego-
tiations, 2 Op. O.L.C. 227, 228 (1978) (“Authority to Participate in Inter-
national 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 internation-
al 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 impermis-
sible 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., Delegations to U.N. Agencies,
33 Op. O.L.C. at 235; Issues Raised by Provisions Directing Issuance of
Official or Diplomatic Passports, 16 Op. O.L.C. 18, 25–26 (1992) (“Issu-
ance of Official or Diplomatic Passports”).
The President’s power over the conduct of diplomacy also includes ex-
clusive authority “to determine the individuals who will represent the
United States in those diplomatic exchanges.” Delegations to U.N. Agen-
cies, 33 Op. O.L.C. at 231 (footnote and internal quotation marks omit-
ted). 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]pecific-
ally[] . . . may not . . . place limits on the President’s use of his preferred
agents to engage in a category of important diplomatic relations.” Id. at
226, 227. 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 226.
The President also has plenary and exclusive authority to receive dip-
lomatic representatives of foreign governments, by virtue of his specific
constitutional authority to “receive Ambassadors and other public Minis-

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).

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ters.” U.S. Const. art. II, § 3. As the Attorney General noted over a centu-
ry and a half ago, the President’s “right of reception extends to ‘all possi-
ble 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 Ambassa-
dors and Other Public Ministers of the United States, 7 Op. Atty. Gen.
186, 209 (1855)). 4 Presidents therefore have regularly objected to legisla-
tion 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 mean-
ingful 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.

4 See also, e.g., Constitutionality of Closing the Palestine Information Office, an Affili-
ate 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 (LIB-

ERTAD) 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 repre-
sentatives 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”).

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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 Delegations
to U.N. Agencies opinion, Congress may use its spending power to de-
cline to appropriate money or place conditions on its appropriations. 33
Op. O.L.C. at 235–36. Congress may not, however, “use the appropria-
tions 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 237 (citations and quotation marks omitted). 6 At least

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 authori-
ty indirectly, through a condition on an appropriation, rather than through a direct man-
date, 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).

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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, notwith-
standing 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 Internation-
al 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 Chi-
nese government, who work principally on facilitating cooperative activi-
ties 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., Delegations to U.N.
Agencies, 33 Op. O.L.C. at 227. That authority provides him with abso-
lute 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 desig-
nated “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

7We have been asked only to address the effect of section 1340(a) and therefore pre-
sume, 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).

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 35 Op. O.L.C. 116 (2011)

an accomplished scientist with a distinguished résumé 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 associ-
ated 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 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 Com-
mission and the Innovation Policy Dialogue, and also whether he may
represent the work of the Innovation Policy Dialogue in a broader diplo-
matic 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 technolo-
gy] cooperation with China in areas of mutual benefit to the two coun-
tries.” 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 “especial-
ly” for “identify[ing], analyz[ing], and overcom[ing] barriers to innova-
tion 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 as-
sociated 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 Appro-
priations Veto Message, 25 Weekly Comp. Pres. Doc. at 1783. These

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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” consti-
tute quintessential diplomatic activities and exchanges over which the
President has exclusive authority.
Other activities you describe that support or facilitate exchanges be-
tween 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 activi-
ties; 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, sup-
port, 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 ap-
propriated funds for agency staff work and expenses generally, section
1340(a) may not constrain the use of those funds for expenditures neces-
sary to support diplomatic activities. Cf. Issuance of Official or Diplomat-
ic Passports, 16 Op. O.L.C. at 25–27 (deeming unconstitutional an appro-
priations 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”).

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 35 Op. O.L.C. 116 (2011)

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, includ-
ing ‘on the ground’ monitoring of whether commitments are being ob-
served 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 infor-
mation and analysis needed to facilitate dialogue with Chinese officials,
or the formulation of joint policy initiatives, the activities of OSTP em-
ployees would be facilitating diplomacy and would fall within the Presi-
dent’s exclusive constitutional authority over diplomatic relations. Like-
wise, OSTP employee activity necessary to “mak[ing] recommendations”
to diplomatic negotiators on particular policy options facilitates diplomat-
ic 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 diplo-
macy. 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.

8 As noted above, see supra note 7, we assume for purposes of this opinion that appro-

priated funds are available in general for the purposes you have described; we address
only the effect of section 1340(a) on such appropriations.

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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 representa-
tion,” 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 Recep-
tion and Representation Funds, B-223678, 1989 WL 240750, at *4 n.2
(Comp. Gen. June 5). 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 Chi-
nese-owned company”—may well bar expenditures for activities that are
neither diplomatic in character nor otherwise within the exclusive consti-

9 Cf. Delegations to U.N. Agencies, 33 Op. O.L.C. at 235 (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).
10 Congress appropriated funds for OSTP most recently in the Continuing Appropria-

tions Act § 1101(a)(6), 125 Stat. at 103, which carried forward appropriations levels
from the Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. B, 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 authoriza-
tion 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 General Accounting Office, GAO-04-261SP, 1 Principles of Federal Appropria-
tions Law 4-135 (3d ed. 2004) (“the State Department would find it difficult to accom-
plish its mission if it could not spend any money entertaining foreign officials”); cf.
Application of 18 U.S.C. § 603 to Activities in the White House Involving the President,
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 further-
ance 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”).

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tutional authority of the President. Congress may restrict the implementa-
tion 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 well-established 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 appropri-
ate 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 agree-
ment’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 purpos-
es. In many instances, therefore, the restrictions that section 1340 imposes

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 origi-
nal)); 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”).

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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 be-
lieve that the Continuing Appropriations Act “will not function in a man-
ner consistent with the intent of Congress” if the unconstitutional applica-
tions of section 1340(a) are severed. 13 Delegations to U.N. Agencies, 33
Op. O.L.C. at 238 n.18 (internal quotation marks omitted). The Continu-
ing 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 con-
tinue to participate in the Committee on Foreign Investment in the United

12 The general rule that unconstitutional provisions in Acts of Congress should be sev-

ered, 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 includ-
ed “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 Representa-
tive and other Members of Congress emphasized the bill’s overriding purpose of estab-
lishing 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”).

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States (“CFIUS”), a federal government entity that reviews certain trans-
actions 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, 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 speci-
fied by statute and executive order, one of which is OSTP. 50 U.S.C. app.
§ 2170(k); Exec. Order No. 11858, § 3, reprinted as amended in 50
U.S.C. app. § 2170, 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, 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, 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, at 824.

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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 transac-
tions. 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 agree-
ments between the United States and China or any Chinese-owned com-
pany 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 cov-
ered by section 1340(a). Accordingly, OSTP’s CFIUS-related activities
with respect to transactions involving China or any Chinese-owned com-
pany are not restricted by section 1340(a).

VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel

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