June 7, 1977

Reprogramming—Legislative Committee Objection

77-34 MEMORANDUM OPINION FOR THE

GENERAL COUNSEL OF THE AGENCY FOR

INTERNATIONAL DEVELOPMENT

This is in response to your request for our opinion on two questions 

arising out of the administration of the Agency for International Development (AID). The first is whether the legislative history of a provision in Title I of the Foreign Assistance and Related Programs Appropriations Act, 1977, Pub. L. No. 94-441, 90 Stat. 1467, can be read to 

convert that provision into more than a report-and-wait provision. We 

believe that the legislative history of the provision cannot be so read, 

and it is our opinion that the executive branch is in no sense legally 

bound to abide by an objection of the appropriations committees of 

Congress with regard to a specific reprogramming.

The second question concerns the extent to which the Administrator 

of your agency might be able to bind the agency, the State Department, or the President not to go forward with reprogramming action 

over the objection of these congressional bodies. We think that the 

Administrator may give his or her personal assurance to Congress, 

orally or in writing, of his intention to give the greatest weight to such 

an objection, and that he may also convey, if authorized to do so, 

similar assurances by the Secretary of State and the President. But the 

Administrator may not legally bind himself, his agency, the Secretary 

of State, or the President to honor the objection, because such an 

agreement would constitute formal acceptance by the executive branch 

of a legislative veto that is constitutionally suspect.

I. The Effect of the Provision

Under the provision in question, your agency may not reprogram 

funds for fiscal year 1977 “unless the Appropriations Committees of 

both Houses of the Congress are previously notified fifteen days in 

advance.” Thus, the provision constitutes a so-called “report and wait” 

provision of the type that we regard as constitutionally permissible. 

However, the conference report that deals with this provision discusses

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the fact that the provision represents a compromise between the House 

and Senate managers of the bill, the latter having brought into conference a Senate-passed bill that purported to prevent reprogramming of 

A ID funds without affirmative approval by the appropriations committees of the two Houses. The report states that the compromise “is based 

on the firm expectation of the conferees that the Executive Branch will 

follow the historical pattern of honoring objections” to reprogrammings. H.R. Rep. No. 1642, 94th Cong., 2d Sess. 8 (1976). The conference report was approved by both Houses. 122 Cong. Rec. H 11142 

(daily ed. Sept. 27, 1976); 122 Cong. Rec. S 16811 (daily ed. Sept. 28, 

1976). The question is whether the quoted language, taken together 

with the language in Title I quoted above, binds your agency or the 

executive branch to abide by committee “vetoes” of reprogramming 

decisions as a statutory matter. We think it plain that it does not.

W hatever the “firm expectations” of the conferees might have been 

in reaching this compromise, their expectations cannot be read as if the 

Senate version had been enacted into law. As Mr. Justice White recently wrote for the Supreme Court, “legislative intention, without more, is 

not legislation.” Train v. City of New York, 420 U.S. 35, 45 (1975). 

Thus, even if we were to read into the conference report an intent to 

bind the executive branch to follow its historical practice, we would 

nevertheless conclude that the legislation enacted was inadequate to 

fulfill that purpose.

II. Express Agreements Binding the Executive Branch to Abide by 

Congressional Directives

We think that an express agreement purporting to bind the Administrator to follow the dictates of congressional committees presents both 

statutory and constitutional issues. In assessing the validity of such an 

agreement, we would first characterize it as one in which the Administrator places his actual decisionmaking authority concerning specific 

reprogramming in the congressional body. Thus, while the Administrator exercises some discretion in what reprogramming proposals are to 

be submitted to the cognizant committee, the latter body would exercise the final decisionmaking authority by virtue of the veto power it 

would have under the agreement.

A. The Statutory Question

As a statutory matter, therefore, the question is whether the Administrator possesses the authority to delegate his decisionmaking power to a 

congressional body. The Administrator’s own power over reprogramming decisions derives from § 101 of Executive Order 10973, 3 CFR 

493 (1959-1963 Compilation), by which the President delegated to the 

Secretary of State the functions assigned to the President under the 

Foreign Assistance Act of 1961, 75 Stat. 424, 22 U.S.C. §§2151 et seq.

In that order the President directed the Secretary of State to establish 

AID, which the latter did by Public Notice 199, 26 Fed. Reg. 10608. In

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§ 2(a)(1) of the notice, the Secretary of State specifically delegated to 

the Administrator his § 101 powers. Nothing in the notice would purport to give the Administrator the authority to delegate beyond himself, much less to a congressional body, his discretion to administer the 

provisions of the Foreign Assistance Act involved here.

Thus, as a threshhold matter the Administrator does not possess the 

power to make the kind of delegation of authority contemplated by the 

proposed agreement. More importantly, we think that if either the 

order or the public notice attempted to confer such power upon either 

the Secretary of State or the Administrator, respectively, those documents would be contrary to § 621(a) of the Foreign Assistance Act of 

1961, as amended, 22 U.S.C. § 2381(a), which states that the “President 

may exercise any functions conferred upon him by this chapter through 

such agency or officer of the United States Government as he shall 

direct.” We believe that § 2381(a) effectively prohibits delegation of 

reprogramming decisions to any person outside the executive branch, 

including congressional bodies or individual Members of Congress.

We end our discussion of this question by pointing out that, under 

our analysis in Part I, supra, of the Appropriations Act, nothing in that 

Act could be said to qualify the express language of § 2381, We therefore conclude that the Administrator has no power to make the proposed delegation and that any delegation of such power by him W w iild 

violate § 2381(a).

B. The Constitutional Question

Although our resolution of the statutory question makes it unnecessary to examine the constitutional issue, we briefly address the latter 

because we think the answer is reasonably well established. As a practical matter, an agreement purporting to bind the Administrator to 

follow the dictates of a congressional body, if assumed to be binding, 

would constitute nothing less than a formal committee veto provision. 

Such provisions have been considered unconstitutional by former Presidents. See, e.g., Public Papers o f the Presidents: Dwight D. Eisenhower,

1955, at 688-89; John F. Kennedy, 1963, at 6. They have also been 

declared to be unconstitutional by two former Attorneys General. See

37 Op. A.G. 56 (1933); 41 Op. A.G. 230 (1955). The fact that here the 

Administrator would be a party to the agreement, constitutionally, does 

nothing to remove the taint.

The Administrator cannot delegate his executive power with respect 

to reprogramming decisions to the chairman of a congressional committee. To do so would be to delegate an executive function to the 

legislative branch in violation of the doctrine of separation of powers.

111. Express Agreements Binding the Executive Branch to Consult 

with Congressional Bodies

Given our view that the Administrator lacks statutory and constitutional authority to enter into an agreement effectively surrendering his

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decisionmaking authority to a congressional body, the question remains 

as to what type of agreement the Administrator may enter into and the 

extent to which he would bind himself and his agency by doing so.

We believe that the Administrator may enter into an express agreement by which he would consult with a congressional body prior to 

making a reprogramming effective and agree to give great deference to 

the views of that body in reaching a final decision. The crucial point is 

that the Administrator must retain at all times the authority to make the 

final decision.

We also think that such a commitment on the part of the Administrator could be made binding on AID if published in the Federal Register. 

See 44 U.S.C. § 1510. A somewhat analogous situation was presented by 

the action of Acting Attorney General Bork regarding the authority of 

the Watergate Special Prosecutor to contest an assertion of executive 

privilege. This commitment was published as a regulation and was said 

by the Supreme Court to have “the force of law” so long as it was 

extant. See, United States v. Nixon, 418 U.S. 683, 695 (1974).

We also believe that such an agreement, whether or not published as 

a regulation, could be revoked at will by the Administrator or his 

successor. As the Court said of the regulation involved in the Nixon

case, “it is theoretically possible for the Attorney General to amend or 

revoke the regulation. ...” Id. at 696. Once revoked, the agreement 

would have no further effect.

J o h n M . H a r m o n

Acting Assistant Attorney General

Office o f Legal Counsel

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