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### Use of “Unanticipated Needs” Funds to Pay the Security

Related Hotel Expenses of a Supreme Court Nominee

P ayment of e xpenses 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

M EMORANDUM O PINION FOR THE
P RINCIPAL D EPUTY C OUNSEL TO THE P RESIDENT

This memorandum memorializes advice we previously provided regardin g 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 nationa l 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 wit h 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 ensu red. As we understand it, the United States Marshals Service (“USMS”), based oninformation obtained shortly after Judge Sotomayor’s nomination, determined that Judge Sotomayor required the protection of a security detail, and specifically requested that s he 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 Presiden t 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 la w .

. . 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 incurredUse of “Unanticipated Needs” Funds to Pay Security

- Related Hotel Expenses

21 appropriated one million dollars “[f]or expenses necessary to enab le 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

inte rest, 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 nee ds 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 o f one millio n 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 curren t 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

“Unan ticipated 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.” Treas ury, 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 appropri ation 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 S ervice, and General Government Appropriation Act, 1976, Pub. L. No. 94

- 91, t it

. 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 (197 6); Treasu ry, Postal Service, and General Government Appropriation Act, 1978, Pub. L. No. 95

- 81, tit. III, 91 Stat. 341, 346 (1977); Treasury, Postal Service, and G eneral Government Appropriations Act, 1979, Pub. L. No. 95

- 429, tit. III, 92 Stat. 1001, 1006 (1978)

. The House r eport accompanying one of these acts indicate d3 4 Op. O.L.C. 2 0 (20 10 )

22 1978, it borrowed this broader language from the appropriatio ns 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 appropriat ions 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.

N o. 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 commissio ns in the Executive Branch, such as the NativeHawaiians 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, Unanticipate d Needs History at 1 (F Y 1972

– present) (“Unanticipated Needs History”);

see also Budget of the United States Government, Fiscal Year 1984, a pp

. at I

- D3; Budget of the United States Government, Fiscal Year 1982 (“Budget FY 1982”) , app. at I

- D4. Other uses o f section 108 funds have included unspecified expenditures for the White House Office, the Iran

contra hearings, the U.S. Secret Service, Geneva Mission security for the Office of the U.S. Trade Representative, presidential foundation expenses

for the fune rals 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 r eport 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 w ere 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, a pp. 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. (N ov. 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 moredirectly, 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 g overnment but who are traveling for purposes related to the duties of the President. S ee Memorandum for Michael E. Shaheen, Jr., Counsel, Office of ProfessionalResponsibility, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Use of Department of Justice Vehiclesat 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 se ction 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 announcem ent 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.1.3 4 Op. O.L.C. 2 0 (20 10 )

24 the confirmation process. Moreover, the particular expenses at issue heremay 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 prote ction 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 J udge Sotomayor in Washington during the confirmation process was significantly less than the expected cost of movingthe 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