United States Government Accountability Office

Washington, DC 20548 

B-316655 

October 29, 2008 

The Honorable Howard L. Berman 

Chairman, Committee on Foreign Affairs 

House of Representatives 

The Honorable Robert Menendez 

Chairman, Subcommittee on International 

 Development and Foreign Economic Affairs, 

 and International Environmental Protection 

Committee on Foreign Relations 

United States Senate 

The Honorable Daniel K. Akaka 

Chairman, Subcommittee on Oversight of Government 

 Management, the Federal Workforce, and 

 the District of Columbia 

Committee on Homeland Security and Governmental Affairs 

United States Senate 

Subject: Delegation of Authorities to the Director of Foreign Assistance

This opinion responds to your letter of September 10, 2007, in which you asked us, as 

part of a larger overall review of the Office of the Director of Foreign Assistance’s 

activities, to review the legality of the delegation of authorities of the Secretary of 

State and the President to the Director of Foreign Assistance (DFA). The creation of 

the DFA represented a significant structural change to the organization of U.S. 

foreign assistance.1

 As a result, some Members of Congress questioned the propriety 

of the delegation of certain functions Congress had previously conferred by statute 

upon the President and the Secretary to the DFA, a position that does not receive 

Senate confirmation. 2

 

Our practice when rendering legal opinions includes obtaining the views of the 

relevant agency to establish a factual record and to elicit the agency’s legal position 

 

1 Nomination of Ambassador Randall Tobias: Hearing Before the Committee on 

Foreign Relations, 109th Congress, 2nd Session (2006) (questions for the record 

submitted to Ambassador Randall Tobias by Senator Joseph Biden). 

2 Id. 
on the subject matter of the request.3

 In accordance with this practice, we sent a 

development letter to the State Department to solicit its views of the facts and law in 

question. We received a timely response from State and followed up with informal 

discussions. 

Based on information and documentation we received from State, as well as our 

independent research and analysis, we conclude for the reasons discussed below 

that, with respect to functions originally conferred by statute either upon the 

Secretary or the President, the subsequent redelegation by the Secretary of these 

functions to the DFA was authorized by law. 

BACKGROUND 

The Secretary announced the creation of the position of the Director of Foreign 

Assistance in 2006. According to the Secretary, she created the position to better 

align foreign assistance programs with foreign policy goals by having the DFA 

provide guidance within State and to other agencies to develop and implement a 

coherent foreign assistance strategy for the United States government.4

 According to 

State’s fact sheet entitled, “New Direction for U.S. Foreign Assistance” and the State 

Department Foreign Affairs Manual, the DFA: 

• develops a coordinated U. S. Government foreign assistance strategy,

including developing country specific assistance strategies and annual 

country-specific assistance operational plans as well as the Director of

Foreign Assistance goals and priorities; 

• creates and directs consolidated policy, strategic and program plans, 

the operational budget, implementation mechanisms, and staff 

functions required to provide umbrella leadership to foreign assistance; 

• has authority over all Department of State and USAID foreign 

assistance funding and programs, with continued participation in

program planning, implementation, budget, oversight, and program

results reporting from the various bureaus and offices within State and 

USAID, as part of the integrated interagency planning, coordination and 

implementation mechanisms; 

• provides coordination, guidance, and assistance to all development 

assistance delivered through the Millennium Challenge Corporation and 

the Office of the Global AIDS Coordinator as well as implement a 

mechanism to effectively facilitate interagency collaboration of foreign 

assistance programs and policies of other agencies and entities of the 

U.S. Government; and 

 3

 GAO, Procedures and Practices for Legal Decisions and Opinions, GAO-06-1064SP 

(Washington, D.C.: Sept. 2006) available at www.gao.gov/congress.html (last visited 

Oct. 16, 2008). 

4

 Remarks on Foreign Assistance by Secretary of State Condoleezza Rice, 

Washington, D.C., January 19, 2006, available at

http://www.state.gov/secretary/rm/2006/59408.htm (last visited Oct. 16, 2008). 

Page 2 B-316655 
• directs the required transformation of the U. S. Government approach

to foreign assistance in order to achieve the President’s 

Transformational Development Goals, and provides high-level 

comprehensive framework for reporting on achievements and summary 

of performance results that support the organization’s strategic 

objectives.5

The Secretary subsequently delegated specific functions to the DFA related to 

overseeing and administering various aspects of U.S. foreign assistance programs. 

DISCUSSION 

As the head of a department, the Secretary has broad authority to create positions 

within the agency and to employ and appoint officials in such positions. 5 U.S.C. 

§§ 301, 3101. In addition, the State Department Basic Authorities Act gives the 

Secretary broad authority to administer, coordinate, and direct the personnel of the 

Department. 22 U.S.C. § 2651a. Utilizing these authorities, the Secretary created the 

position of the DFA within the Department. According to the State Department

Foreign Affairs Manual, the DFA serves concurrently as the USAID Administrator, 

reports directly to the Secretary, and holds the rank at the level of the Deputy 

Secretary of State.”6

 The State Department Basic Authorities Act also authorizes the Secretary to 

promulgate such rules and regulations as may be necessary to carry out the functions 

of the Secretary and delegate “authority to perform any of the functions of the 

Secretary or the Department to officers and employees under the direction and 

supervision of the Secretary.” 22 U.S.C. § 2651a. Exercising this authority, the 

Secretary delegated numerous functions to the DFA in section 1 of the Department of 

State Delegation of Authority 293 (hereinafter Delegation 293).7

 The functions

delegated to the DFA in Delegation 293 fall into two broad categories: (1) functions 

conferred upon the Secretary of State by statute, and (2) functions originally 

conferred upon the President by statute and subsequently delegated to the Secretary 

of State.8

 These two categories are covered by subsections (a) and (b), respectively, 

of section 1 of the delegation, which provide: 

 5

 U.S. Department of State Foreign Affairs Manual Volume 1, section 033.1. 6

Id.

7

Delegation of Authority by the Secretary of State to Officers of the Department of 

State and the Administrator of the U.S. Agency for International Development of 

Authorities Under the Foreign Assistance Act of 1961 and Other Related Acts, 71 

Fed. Reg. 38202 (July 5, 2006). 8

 The July 5, 2006, authority delegation specified that certain functions conferred 

upon the Secretary by Exec. Order No. 11077, Administration of the Migration and

Refugee Assistance Act of 1962, 28 Fed. Reg. 629 (Jan. 22, 1963), reprinted as

amended in 22 U.S.C. § 2603 (delegating certain functions from the President to the 

Secretary of State) and Exec. Order No. 12163, Administration of foreign assistance 

and related functions, 44 Fed. Reg. 56673 (Sept. 29, 1979), reprinted as amended in 

Page 3 B-316655 
“(a) The functions conferred upon the Secretary of State by 

sections 101(b), 531(b) and 622(c) of the Act [Foreign 

Assistance Act of 1961 (FAA), as amended], section 2(b) of 

the Arms Export Control Act, and section 1523 of the Foreign 

Affairs Reform and Restructuring Act of 1998 (22 U.S.C. 

6593), including the authority to provide for continuous 

supervision and general direction of development and other 

economic assistance, military assistance, military education 

and training, and foreign military financing, designing a U.S. 

foreign assistance strategy and budgetary approach, 

determining whether there shall be a program for a country 

and the amount thereof, and approving the programming of

foreign assistance. 

“(b) The functions conferred upon the Secretary by section 1-

100 of the Order [Executive Order 12163, Sept. 29, 1979] and 

section 1 of Executive Order 11077 of January 22, 1963 (28 

FR 629) insofar as such functions are necessary to approve 

assistance and programs under chapters 3 and 8 of Part I of

the Act [FAA], Part II of the Act [FAA] (including chapters 4, 

6 and 8 thereof), and the Migration and Refugee Assistance 

Act of 1962 (22 U.S.C 2601) [sic] as part of a coordinated U.S. 

foreign assistance strategy.” 

We discuss each of these categories of functions in turn below. 

Delegation of Functions Originally Conferred upon the Secretary

With respect to those functions statutorily conferred directly upon the Secretary, 

which are delineated in section 1, paragraph (a) of Delegation 293, supra, the State 

Department Basic Authorities Act states that “[u]nless otherwise specified in law,

the Secretary may delegate authority to perform any of the functions of the Secretary 

or the Department to officers and employees under the direction and supervision of

the Secretary.” 22 U.S.C. § 2651a (emphasis added). Under Delegation 293, functions 

statutorily conferred upon the Secretary were delegated to the DFA.9

 

22 U.S.C. § 2381 (delegating certain functions from the President to the Secretary of 

State) were redelegated to the DFA. 9

 The functions that were delegated to the DFA originate from the following statutory 

provisions: (1) § 101(b) of the Foreign Assistance Act of 1961 (FAA), Pub. L. No. 87-

195, § 101(b), 75 Stat. 424 (Sept. 4, 1961) (codified as amended at 22 U.S.C. § 2151) 

(establishing State’s policy guidance authority); § 531(b) of the FAA (codified as

amended at 22 U.S.C. § 2346) (establishing the State Department’s responsibility for 

the programming of the economic support fund); § 622(c) of the FAA (codified as

amended at 22 U.S.C. § 2382) (establishing the State Department’s responsibility for 

the supervision and general direction of assistance programs, except for the transfer 

Page 4 B-316655 
To determine if the Secretary’s authority to delegate these functions to the DFA was 

otherwise specifically prohibited by law, we researched and analyzed the statutory 

provisions that conferred these functions upon the Secretary, as well as other 

relevant statutes including public laws amending the FAA. We found no specific 

prohibition in law on the Secretary’s authority to delegate the functions named in 

paragraph (a) of Delegation 293 and described above. Based on this analysis, we 

conclude that it was lawful for the Secretary to delegate these functions to the DFA 

pursuant to the general delegation authority provided to the Secretary in the State 

Department Basic Authorities Act.

10

Delegation of Functions Originally Conferred upon the President

In addition to the delegation of functions that had been directly conferred upon the 

Secretary by statute, the Secretary also delegated certain functions to the DFA, which

are delineated in section 1, paragraph (b) of Delegation 293, supra, that Congress had 

originally granted to the President. These functions were conferred upon the 

President by the Migration and Refugee Assistance Act of 196211 (MRAA) and the 

Foreign Assistance Act of 196112 (FAA). The President subsequently delegated these 

functions, and many others, to the Secretary of State in Executive Order No. 11077 

and Executive Order No. 12163. 

In order to determine whether redelegation of these functions to the DFA was 

authorized, we reviewed the relevant provisions of the MRAA and the FAA to

determine (1) whether they authorized the President to delegate the functions to the 

Secretary, and (2) whether they provided authority for the Secretary to redelegate the 

same functions to a subordinate, such as the DFA. With respect to the MRAA, section 

4(a)(1) states: 

“The President is authorized to designate the head of any 

department or agency of the United States Government, or 

any official thereof who is required to be appointed by the 

President by and with the advice and consent of the Senate, 

to perform any functions conferred upon the President by 

 

of excess defense articles under section 622(c)); § 2(b) of the Arms Export Control 

Act, (Foreign Military Sales Act), Pub. L. No. 90-629, § 2(b), 82 Stat. 1320, 1322 

(Oct. 22, 1968) (codified as amended at 22 U.S.C. § 2752) (establishing the State 

Department’s role in foreign military financing); and § 1523 of the Foreign Affairs 

Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, § 1523, 112 Stat. 

2681, 2681-794 (Oct. 21, 1998) (codified as amended at 22 U.S.C. § 6593) (establishing 

the Secretary’s U.S. assistance coordination activities). 10 22 U.S.C. § 2651a. 

11 Migration and Refugee Assistance Act of 1962, Pub. L. No. 87-510, 76 Stat. 121 

(June 28, 1962) (codified as amended at 22 U.S.C. §§ 2601-2606). 12 Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. §§ 2151-2431k).

Page 5 B-316655 
this Act. If the President shall so specify, any individual so 

designated under this subsection is authorized to redelegate 

to any of his subordinates any functions authorized to be 

performed by him under this subsection, except the function 

of exercising the waiver authority specified in section 3(b) of 

this Act.” 13

 

In authorizing the President to designate the head of an agency to perform the 

functions conferred on the President by the MRAA, the Act provides explicit

authority for the President to delegate such functions to the Secretary of State. The 

Act also explicitly provides that the President may specify that his designee, in this 

case the Secretary of State, may redelegate the same functions to any subordinate.

14

 

Consistent with the authority granted to him in section 4(a)(1) of the MRAA, the 

President, by Executive Order No. 11077, properly delegated certain functions to the 

head of the Department of State, namely the Secretary. In addition, and also 

consistent with section 4(a)(1), the President specified that the Secretary of State 

could “redelegate any of his functions under [the] order to any of his subordinates.”

15

 

By specifying in the original delegation to the Secretary that the Secretary had the 

authority to redelegate such functions, the President granted the Secretary the 

necessary authority to subsequently redelegate functions to her subordinate that had 

been delegated to her. Therefore, the Secretary’s delegation of these functions to the 

DFA, a subordinate who reports directly to the Secretary, was proper.16

 

In addition to the MRAA functions, the President also delegated certain functions to 

the Secretary that were originally granted to the President by the FAA.17 With respect 

to this delegation, the relevant provision of the FAA is section 621(a). Section 621(a) 

states: 

“The President may exercise any functions conferred upon 

him by this Act through such agency or officer of the United 

States Government as he shall direct. The head of any such 

agency or such officer may from time to time promulgate 

such rules and regulations as may be necessary to carry out 

such functions, and may delegate authority to perform any 

such functions, including, if he shall so specify, the authority 

 13 Pub. L. No. 87-510, § 4(a)(1) (codified as amended at 22 U.S.C. § 2603). 14 Id. 15 Exec. Order No. 11077, 28 Fed. Reg. 629. 16 Neither the MRAA nor Executive Order No. 11077 requires a “subordinate” who is

the recipient of the delegation to meet any additional criteria. For example, there is 

no requirement that the subordinate to whom the Secretary redelegates functions be 

a Senate-confirmed official. 17 Exec. Order No. 12163, reprinted as amended in 22 U.S.C. § 2381. 

Page 6 B-316655 
successively to redelegate any of such functions to any of his 

subordinates.”

 18

 

Similar to the authority provided by the MRAA for the President to designate an 

agency head to carry out the functions included in that Act, section 621(a) of the FAA 

authorizes the President to direct an agency or officer of the United States to exercise 

the functions conferred upon him on his behalf. The President utilized this authority 

in issuing Executive Order No. 12163 to delegate certain FAA functions to the 

Secretary of State.19 With respect to the redelegation of such functions to a 

subordinate of the Secretary, section 621(a) provides that “[t]he head of any such 

agency . . . may from time to time promulgate such rules . . . as may be necessary to 

carry out such functions . . . .” The provision further authorizes the head of any such 

agency, here the Secretary, to, among other things, delegate authority to perform 

such functions and, as she may see fit and so specify, to include in such delegation 

the authority to further redelegate such functions to any of her subordinates. Given 

this statutory construct, the authority of the Secretary to redelegate to the DFA the 

functions delegated to her by the President becomes operative under section 621(a) 

once the President directs the Secretary to exercise said functions. Additionally, in 

Executive Order No. 12163, the President authorized the Secretary to “redelegate to 

any other officer or agency of the Executive branch functions delegated to the 

Secretary by [the] order to the extent such delegation is not otherwise prohibited by 

law.”20 Because both section 621(a) and the terms of Executive Order No. 12163 

provide that the Secretary may redelegate to subordinates those functions delegated 

to her by the President, the Secretary had the authority to redelegate those functions 

to the DFA.

21 Therefore, we conclude that in Delegation 293 the Secretary properly 

redelegated to the DFA functions previously delegated to her in section 1-100 of the 

Executive Order No. 12163 “insofar as such functions are necessary to approve 

 18 Pub. L. No. 87-195, § 621(a), 75 Stat. 424, 445 (codified as amended at 22 U.S.C. 

§ 2381). 

19 The President also delegated a number of other functions to the Secretary relying 

on additional statutory authorities in Executive Order No. 12163. However, none of

these other functions were subsequently redelegated to the DFA. 20 Exec. Order No. 12163, reprinted as amended in 22 U.S.C. § 2381. 

We note that, in the absence of specific delegation authorization, the general 

delegation statute, sections 301 and 302 of title 3 of the United States Code, explicitly 

authorize delegation to Senate confirmed positions except where precluded by 

statute. See, e.g., 5 U.S. Op. Off. Legal Counsel 91 (1981). As we have discussed, with

respect to the functions that the Secretary delegated to the DFA in section 1 of 

Delegation 293, both the MRAA and the FAA provide specific redelegation authority 

of such functions to “any of [the Secretary’s] subordinates” and the President

authorized such redelegation in Executive Order No. 11077 and 12163 in his 

delegation of those functions to the Secretary. 21 As with the MRAA, neither the FAA nor Executive Order No. 12163 requires a 

“subordinate” who is the recipient of the delegation to meet any additional criteria. 

For example, there is no requirement that the subordinate to whom the Secretary 

redelegates functions be a Senate-confirmed official. 

Page 7 B-316655 
assistance and programs under chapters 3 and 8 of Part I of the [FAA], Part II of the 

[FAA] (including chapters 4, 6, and 8 thereof), . . . as part of a coordinated U.S. 

foreign assistance strategy.” 

CONCLUSION 

Section 1 of the State Department Basic Authorities Act22 provides the Secretary with 

general authority to delegate performance of any of the statutory functions originally 

conferred upon the Secretary to those under her direction and authority, such as the 

DFA. Therefore, with respect to the functions which were originally conferred by 

statute directly upon the Secretary, we conclude that the Secretary lawfully delegated 

those functions to the DFA. The MRAA23 authorized the President to delegate to the 

Secretary both the authority to perform certain of those functions conferred upon

him therein, and the authority for the Secretary to redelegate those functions to a 

subordinate, such as the DFA. The FAA24 authorized the President to delegate certain 

functions conferred upon him therein to the Secretary. Once the President made 

such a delegation, the Secretary had authority under the FAA to further delegate 

those functions to a subordinate, such as the DFA. Therefore, with respect to the 

functions which were originally conferred by the Congress directly upon the 

President and subsequently delegated by the President to the Secretary, we conclude 

that the Secretary lawfully delegated those functions to the DFA. 

Gary L. Kepplinger 

General Counsel 

Enclosure 

 22 22 U.S.C. § 2651a. 

23 22 U.S.C. § 2603. 

24 22 U.S.C. § 2381. 

Page 8 B-316655 
Delegation of Functions Pursuant to State Department Delegation of 

Authority 293 to the Director of Foreign Assistance

Page 9 B-316655