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Use of “Unanticipated Needs” Funds to Pay the SecurityRelated Hotel Expenses of a Supreme Court Nominee

Payment of expenses related to Judge Sotomayor’s hotel stays in Washington, D.C. 

during the period between her nomination to the Supreme Court and the conclusion of 

her confirmation hearings falls within the President’s discretion under 3 U.S.C. § 108.

January 15, 2010

MEMORANDUM OPINION FOR THE 

PRINCIPAL DEPUTY COUNSEL TO THE PRESIDENT

This memorandum memorializes advice we previously provided regarding whether the White House could pay certain expenses related to 

the Supreme Court nomination of then-Judge Sonia Sotomayor out of 

funds appropriated “to enable the President, in his discretion, to meet 

unanticipated needs for the furtherance of the national interest.” 3 U.S.C. 

§ 108(a) (2006). These expenses related to the Judge’s hotel stays in 

Washington, D.C. during the period between her nomination and the 

conclusion of her confirmation hearings. We understand that, during this 

period, the Judge met with White House personnel whose official duties 

included assisting with her confirmation. We further understand that the 

specific amount of the expenses was driven in part by the need for Judge 

Sotomayor to stay at a hotel at which her security could be ensured. As 

we understand it, the United States Marshals Service (“USMS”), based on 

information obtained shortly after Judge Sotomayor’s nomination, determined that Judge Sotomayor required the protection of a security detail, 

and specifically requested that she stay at a hotel with appropriately

configured entrances. On the facts presented to us, we think that payment 

of these expenses falls within the President’s discretion under 3 U.S.C. 

§ 108.

On its face, section 108 confers broad authority on the President to use 

designated funds, “in his discretion, to meet unanticipated needs for the 

furtherance of the national interest.” Id. Section 108 expressly provides 

that the President may exercise this discretionary authority “without 

regard to any provision of law . . . regulating expenditures of Government 

funds.” Id. And, consistent with section 108, the appropriations bill for 

the fiscal year during which the expenses at issue here were incurred 
Use of “Unanticipated Needs” Funds to Pay Security-Related Hotel Expenses

21

appropriated one million dollars “[f]or expenses necessary to enable the 

President to meet unanticipated needs, in furtherance of the national 

interest, security, or defense which may arise at home or abroad during 

the current fiscal year, as authorized by 3 U.S.C. 108, . . . to remain 

available until September 30, 2010.” Omnibus Appropriations Act, 2009, 

Pub. L. No. 111-8, 123 Stat. 524, 643 (2009). The only requirements 

imposed by this language are that the need for which funds are spent be 

“unanticipated,” and that the spending of those funds further the “national 

interest, security, or defense.”

In the years before section 108’s enactment in 1978, individual appropriations acts sometimes provided funds to permit the President to respond to unanticipated needs. In earlier years, these funds were appropriated to meet needs arising from “emergencies.” In the years closer to 

1978, however, Congress made broader appropriations for needs that were 

simply “unanticipated.”1 When section 108 was enacted in November of 

 

1 In particular, the appropriations acts for fiscal years 1972, 1973, and 1974 included 

an appropriation of one million dollars for an “Emergency Fund for the President” for 

“expenses necessary to enable the President . . . to provide in his discretion for emergencies affecting the national interest, security, or defense which may arise at home or abroad 

during the current fiscal year.” Treasury, Postal Service, and General Government Appropriation Act, 1972, Pub. L. No. 92-49, tit. III, 85 Stat. 108, 111 (1971); see also Treasury, 

Postal Service, and General Government Appropriation Act, 1973, Pub. L. No. 92-351, 

tit. III, 86 Stat. 471, 475 (1972); Treasury, Postal Service, and General Government 

Appropriation Act, 1974, Pub. L. No. 93-143, tit. III, 87 Stat. 510, 514 (1973). The 

appropriation for fiscal year 1975, similarly, included an appropriation of $500,000 for 

“Unanticipated Personnel Needs” for “expenses necessary to enable the President to meet 

unanticipated personnel needs, for emergencies affecting the national interest, security, or 

defense which may arise at home or abroad during the current fiscal year.” Treasury, 

Postal Service, and General Government Appropriation Act, 1975, Pub. L. No. 93-381, 

tit. III, 88 Stat. 613, 617 (1974).

The appropriations acts for fiscal years 1976 through 1979, in contrast, omitted mention of “emergencies,” and included an appropriation for “Unanticipated Needs” for 

“expenses necessary to enable the President to meet unanticipated needs, in furtherance of 

the national interest, security, or defense which may arise at home or abroad during the 

current fiscal year.” Treasury, Postal Service, and General Government Appropriation 

Act, 1976, Pub. L. No. 94-91, tit. III, 89 Stat. 441, 445 (1975); see also Treasury, Postal 

Service, and General Government Appropriation Act, 1977, Pub. L. No. 94-363, tit. III, 

90 Stat. 963, 968 (1976); Treasury, Postal Service, and General Government Appropriation Act, 1978, Pub. L. No. 95-81, tit. III, 91 Stat. 341, 346 (1977); Treasury, Postal 

Service, and General Government Appropriations Act, 1979, Pub. L. No. 95-429, tit. III, 

92 Stat. 1001, 1006 (1978). The House report accompanying one of these acts indicated
34 Op. O.L.C. 20 (2010)

22

1978, it borrowed this broader language from the appropriations acts that 

immediately preceded it, and provided funds for unanticipated needs 

generally, without any restriction to “emergencies.” The House and Senate reports accompanying section 108 noted that it “continues the authority provided by recent appropriations acts for a fund to enable the President, in his discretion, to meet unanticipated needs ‘for furtherance of 

the national interest, security, or defense,’” without mentioning any 

restriction to emergencies. H.R. Rep. No. 95-979, at 10 (1978); S. Rep. 

No. 95-868, at 11 (1978). And the practice under section 108 in the decades since its enactment confirms that its scope is not restricted to emergencies. Previous administrations, moreover, have likewise declined to 

construe the term “national interest” as a narrow category restricted to 

matters closely connected with national security or defense, and instead 

interpreted it as an independent, broad category that gives the President 

the flexibility needed to exercise his official functions when faced with 

new problems that arise after the appropriations process for a given year 

has been completed.

Thus, according to a summary of Executive Office records provided by 

your office, section 108 appropriations, for example, have been used to 

fund advisory commissions in the Executive Branch, such as the Native 

Hawaiians Study Commission and the Council on Wage and Price Stability, that were charged with missions apparently unrelated to national 

security or defense. See Executive Office of the President, Unanticipated 

Needs History at 1 (FY 1972–present) (“Unanticipated Needs History”); 

see also Budget of the United States Government, Fiscal Year 1984, app.

at I-D3; Budget of the United States Government, Fiscal Year 1982

(“Budget FY 1982”), app. at I-D4. Other uses of section 108 funds have 

included unspecified expenditures for the White House Office, the Irancontra hearings, the U.S. Secret Service, Geneva Mission security for the 

Office of the U.S. Trade Representative, presidential foundation expenses 

for the funerals of Presidents Reagan and Ford, White House Office 

 

that the purpose of the appropriation was to provide “a resource that the President can 

effectively use to solve problems that occur after the appropriation process has been 

completed.” H.R. Rep. No. 95-378, at 25 (1977). The report went on to observe that “[t]he 

appropriation of funds is a time consuming process and the President ought to have some 

degree of flexibility to handle unforeseen emergencies,” id., although—as noted—the 

terms of the act were broad and not limited to “emergencies.”
Use of “Unanticipated Needs” Funds to Pay Security-Related Hotel Expenses

23

expenses for President Ford’s funeral, and an Office of Administration 

e-mail restoration initiative. See Unanticipated Needs History at 1–3; see 

also Budget FY 1982, app. at I-D4; Budget of the United States Government, Fiscal Year 1989, app. at I-D1; Letter for Susan M. Collins, Chairwoman, Senate Committee on Homeland Security, from John Straub, 

Special Assistant to the President, encl. (Mar. 20, 2006) (Unanticipated 

Needs Account); Letter for Harry Reid, Senate Majority Leader, from 

Alan R. Swendiman, Special Assistant to the President, encl. (Nov. 23, 

2007) (Unanticipated Needs Account); Letter for Harry Reid, Senate 

Majority Leader, from Sandra K. Evans, Special Assistant to the President, encl. (Nov. 4, 2008) (Unanticipated Needs Account). These expenditures have been reported to Congress on a yearly basis and Congress, far 

from viewing them as inappropriate, has continued to appropriate funds 

for unanticipated needs virtually every year.2 Finally, and even more 

directly, this Office has previously suggested that the President’s discretion under section 108 may include the authority to pay travel expenses 

incurred by persons who are not employees of the government but who 

are traveling for purposes related to the duties of the President. See Memorandum for Michael E. Shaheen, Jr., Counsel, Office of Professional 

Responsibility, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Use of Department of Justice Vehicles

at 13 n.12 (Jan. 23, 1984) (explaining that, “[u]nlike the Attorney General, the President has several possible sources of appropriated funds from 

which a nonemployee traveling for official purposes of the Presidency 

might be paid expenses,” and citing section 108).

In light of section 108’s broad language and this prior practice and 

precedent, we believe use of “unanticipated needs” funds to pay for the 

expenses at issue here would be permissible. The timing of Justice David 

Souter’s resignation announcement may fairly be described as “unanticipated,” giving rise to the associated costs of ensuring that the nominee 

who had been named to replace him would be readily available to the 

White House personnel who are officially responsible for assisting with 

 

2 Based on the information you provided, the only year in which Congress did not 

appropriate section 108 funds was in fiscal year 1997, when the one million dollars 

requested for unanticipated needs were diverted to fund conferences on model state drug 

laws through the Office of National Drug Control Policy. See Unanticipated Needs 

History at 3 n.1.
34 Op. O.L.C. 20 (2010)

24

the confirmation process. Moreover, the particular expenses at issue here 

may also be characterized as “unanticipated,” given that the USMS unexpectedly received information about the President’s nominee that caused 

it to determine that she required the protection of a security detail, and to 

request that she stay at a hotel with appropriate security features. And we 

think it is in furtherance of the national interest to protect the security of 

a Supreme Court nominee prior to confirmation and swearing in, as well 

as to ensure that the President’s advisors may effectively and efficiently 

assist him in carrying out his constitutional authority to appoint a nominee 

to the Supreme Court to fill a vacancy in that body. (We also understand 

that the cost of housing Judge Sotomayor in Washington during the confirmation process was significantly less than the expected cost of moving 

the White House preparation team to New York to meet with Judge Sotomayor there.) We therefore conclude that Judge Sotomayor’s expenses 

may properly be paid with funds appropriated under section 108.

JEANNIE S. RHEE

Deputy Assistant Attorney General

Office of Legal Counsel