Legislation Prohibiting Spending for Delegations to
U.N. Agencies Chaired by Countries That
Support International Terrorism
Section 7054 of the Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2009—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 U.N. agency, body, or commission that is chaired or presided over by a
country with a government that the Secretary of State has determined supports interna-
tional 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 Depart-
ment of State, Foreign Operations, and Related Programs Appropriations
Act, 2009 (“Foreign Appropriations Act”), which is division H of the
Omnibus Appropriations Act, 2009 (“Omnibus Appropriations Act”),
Pub. L. No. 111-8, 123 Stat. 524 (H.R. 1105). 1 The President signed the
Omnibus Appropriations 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 gov-
ernment 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.
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”).
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33 Op. O.L.C. 221 (2009)
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 special-
ized 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 sec-
tion 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 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 Depart-
ment 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 operat-
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 Emer-
gency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–1706 (2006), 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 recog-
nized and ratified this practice. See Pub. L. No. 108-458, § 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.
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ing 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, Donoghue Letter
att. at 3 (“State Request”). Section 7054 would thus effectively preclude
the State Department from including any representatives in U.S. delega-
tions to any specialized U.N. agency, body, and commission 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 Appropriations 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 ef-
fectively 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.
Statement on Signing the Omnibus Appropriations Act, 2009, 2009 Daily
Comp. Pres. Doc. No. 145, at 1 (Mar. 11, 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.
The same restriction on the use of appropriated funds has appeared in
successive appropriations acts since fiscal year 2005. 3 President Bush
3 See Department of State, Foreign Operations, and Related Programs Appropriations
Act, 2008, Pub. L. No. 110-161, div. J, § 112, 121 Stat. 1844, 2277, 2288 (2007); Science,
State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No.
109-108, § 637, 119 Stat. 2290, 2347 (2005); Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act, 2005, Pub. L. No. 108-
447, div. B, § 627, 118 Stat. 2809, 2853, 2920 (2004); cf. Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations, 2004, Pub. L. No. 108-199, div. B,
§ 635, 118 Stat. 3, 46, 101 (2004) (prohibition limited to payment of expenses for delega-
223
33 Op. O.L.C. 221 (2009)
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 repre-
sentatives to participate from January 19, 2009, through January 23, 2009,
in a session of a U.N. specialized body—the executive board of the Unit-
ed 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 execu-
tive 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. partic-
ipant in the proceedings of this body—believes it would be advantageous
to United States foreign policy objectives to send State Department offi-
cials to accompany the U.S. delegation. See id. Moreover, because the
State Department is contemplating participation in other upcoming meet-
ings of specialized U.N. entities that may fall within the restriction im-
posed 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.
tion to United Nations Human Rights Commission, if chaired by state supporter of
terrorism).
4 See Statement on Signing the Science, State, Justice, Commerce, and Related Agen-
cies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1764, 1764 (Nov. 22, 2005)
(Pres. Bush) (“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.”); Statement on
Signing the Consolidated Appropriations Act, 2005, 40 Weekly Comp. Pres. Doc. 2924,
2924 (Dec. 8, 2004) (Pres. Bush) (“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”); cf. Statement on Signing the Con-
solidated Appropriations Act, 2004, 40 Weekly Comp. Pres. Doc. 137, 137 (Jan. 23,
2004) (Pres. Bush) (“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.”).
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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 ques-
tion 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 for
Robert J. Lipshutz, Counsel to the President, from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, Re: Myers Amend-
ment at 11 (Aug. 30, 1977). In our view, however, section 7054 is not
susceptible to a 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. Oak-
land 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 constitu-
tional 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 deter-
mination that a duly enacted statute unconstitutionally infringes on execu-
tive authority must be “well-founded,” Memorandum for the Heads of
Executive Departments and Agencies, Re: Presidential Signing State-
ments, 74 Fed. Reg. 10669, 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,
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33 Op. O.L.C. 221 (2009)
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 internation-
al 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 Pass-
ports, 16 Op. O.L.C. 18, 21 (1992) (“Official or Diplomatic Passports”)
(citing Issues Raised by Foreign Relations Authorization Bill, 14 Op.
O.L.C. 37, 38 (1990) (“Foreign Relations Authorization Bill ”)).
The President’s basic authority to conduct the Nation’s diplomatic re-
lations 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 Am-
bassadors 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, Section 3 of the Constitution
that the President “shall take Care that the Laws be faithfully executed.” 6
5 See, e.g., Perez v. Brownell, 356 U.S. 44, 57 (1958) (“Although there is in the Consti-
tution no specific grant to Congress of power to enact legislation for the effective regula-
tion 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 72–80 (2d ed. 1996).
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 1044
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Legislation Prohibiting Spending for Delegations to U.N. Agencies
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). 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 Execu-
tive 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 Appro-
priations 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 Presi-
dent’s assignments of particular grades of diplomats to particular foreign
posts. See 12 Documentary History of the First Federal Congress of the
(Charles T. Cullen ed., 1984) (observing that President’s duty “to execute the laws”
supports his foreign affairs powers).
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33 Op. O.L.C. 221 (2009)
United States of America 68–83 (Helen E. Veit et al. eds., 1994). 7 Jeffer-
son—objecting to what he believed to be the Senate’s impermissible
attempt to extend its advice and consent authority over treaties and presi-
dential appointments to executive determinations about the conduct of
diplomacy—also shed light on the special role that the Constitution as-
signs to the President when it comes to the conduct of diplomatic rela-
tions. “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 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 partic-
ular place . . . ,” but also that “[a]ll this is left to the President.” Id.; see
also Appointment of Consuls, 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 opin-
ion, 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
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. at 128–29.
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Constitution’s ratification, John Jay, 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 con-
stitution 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 (McLean’s ed. 1787); accord The Federal-
ist No. 84, at 355 (McLean’s ed. 1787) (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. Accord-
ing 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.
Members of Congress expressed similar views in other contexts during
the Nation’s early history. In 1796, for example, Senator Robert Ells-
worth, a future Supreme Court Justice, explained that “[n]either [the
legislative nor the judicial] branch had a right to dictate to the President
229
33 Op. O.L.C. 221 (2009)
what he should answer [to foreign nations]. The Constitution left the
whole business in his breast.” 5 Annals of Cong. 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 for-
eign 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, with-
out 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
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.”).
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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, 20 Am. J. Int’l L. 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).
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 possess-
es 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 con-
9 Foreign Relations Authorization Bill, 14 Op. O.L.C. at 38, 41 (quoting Statement on
Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, 2 Pub.
Papers of Pres. Ronald Reagan 1541, 1542 (Dec. 22, 1987); see also Section 235A of the
Immigration and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (same); Statement on
Signing the Sustainable Fisheries Act, 32 Weekly Comp. Pres. Doc. 2040, 2041 (Oct. 11,
1996) (Pres. Clinton) (“Under our Constitution, it is the President who articulates the
Nation’s foreign policy and who determines the timing and subject matter of our negotia-
tions with foreign nations.”); Statement on Signing the Foreign Relations Authorization
Act, Fiscal Years 1992 and 1993, 27 Weekly Comp. Pres. Doc. 1527, 1528 (Oct. 28,
1991) (Pres. Bush) (“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.”); Participation of the
State Department in Producer-Consumer Fora and Other International Negotiations
Aimed at Stabilizing International Commodity Markets, 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 stat-
ute.”); accord Henkin, Foreign Affairs at 42 (“As ‘sole organ,’ the President determines
also how, when, where, and by whom the United States should make or receive communi-
231
33 Op. O.L.C. 221 (2009)
stitutional grounds to Congressional attempts to mandate the time, manner
and content of diplomatic negotiations,” including in the context of poten-
tial engagement with international fora. See Memorandum for Alan Krec-
zko, 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 Con-
gress to adopt joint resolutions mandating that the President enter negotia-
tions to modify the rules of the World Trade Organization. See id. Relat-
edly, 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 Presi-
dent’s “constitutional responsibility to represent the United States abroad
and thus to choose the individuals through whom the Nation’s foreign
affairs are conducted.” Foreign Relations Authorization Bill, 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
cations, 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 International Security and
Development Cooperation Act of 1985: Statement on Signing S. 960 Into Law, 21 Weekly
Comp. Pres. Doc. 972, 973 (Aug. 8, 1985) (Pres. Reagan) (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 Statement on Signing the Foreign
Relations Authorization Act, Fiscal Years 1990 and 1991, 26 Weekly Comp. Pres. Doc.
266, 267 (Feb. 16, 1990) (Pres. Bush) (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 consti-
tutional authority to negotiate with foreign organizations”).
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Legislation Prohibiting Spending for Delegations to U.N. Agencies
In objecting to one such provision, this Office explained that Congress
“possesses no constitutional authority to forbid the President from engag-
ing in diplomatic contacts.” Memorandum for Carol T. Crawford, Assis-
tant 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 inva-
sion of the President’s authority to determine the form and manner of the
Nation’s diplomatic relations); Official or Diplomatic Passports, 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); Department of State, International Communication Agency,
and Board for International Broadcasting Appropriations Bill: Statement
on Signing H.R. 3363 into Law, 15 Weekly Comp. Pres. Doc. 1434, 1434
(Aug. 15, 1979) (Pres. Carter) (“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 negotia-
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 obliga-
tion 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 Appropria-
tions 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).
233
33 Op. O.L.C. 221 (2009)
tions 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 “in-
tru[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 repre-
sentative 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 trea-
ties, 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 interna-
tional organization makes entry into such treaty a necessary precondition
of United States 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 af-
fairs; rather, it purports to restrict the President from engaging in diplo-
macy 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 ratifica-
tion 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.
12 In addition, although the question is not settled, Congress may possess some authori-
ty 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”).
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Legislation Prohibiting Spending for Delegations to U.N. Agencies
Nor is the impact of section 7054 on the President’s discretion to de-
termine the “form and manner” of the Nation’s diplomacy merely hypo-
thetical. You have explained to us that “United Nations bodies and affili-
ated 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 Presi-
dent’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
235
33 Op. O.L.C. 221 (2009)
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 num-
ber 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. (13
Wall.) 128, 147–48 (1871) (deeming an appropriations proviso that “im-
pair[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 re-
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) (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 The President and the War Power: South Vietnam and the Cambodian Sanctuaries,
1 Op. O.L.C. Supp. 321, 334 n.3 (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); Authority of Congressional Committees, 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) (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.”).
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Legislation Prohibiting Spending for Delegations to U.N. Agencies
strictions 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 ad-
hered 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) (“Mexican Debt Disclosure Act”) (internal quota-
tion marks omitted); Mutual Security Program—Cutoff of Funds from
Office of Inspector General and Comptroller, 41 Op. Att’y Gen. 507, 530
(1960) (Rogers). 16 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.” Sec-
tion 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189,
197 (1996) (“Section 609”) (citing precedents for this principle from early
19th century involving objections to appropriations riders by Representa-
tive Daniel Webster, then-Secretary of State John Quincy Adams, and
members of Congress); see supra p. 233 (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
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-à-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 Official or
Diplomatic Passports, 16 Op. O.L.C. at 29 (Dole does not apply to spending conditions in
the separation of powers context).
17 See Mexican Debt Disclosure Act, 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.’”’”) (quoting Official or Diplomatic Passports, 16 Op. O.L.C. at 28 (quoting
Foreign Relations Authorization Bill, 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)))).
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33 Op. O.L.C. 221 (2009)
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.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
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.” Official or Diplomatic Passports, 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 Section 609, 20 Op. O.L.C. at 198 n.21; Foreign Relations Authorization Bill, 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) (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[.]”).
238