b'Legislation Prohibiting Spending for Delegations to\nU.N. Agencies Chaired by Countries That\nSupport International Terrorism\nSection 7054 of the Department of State, Foreign Operations, and Related Programs\nAppropriations Act, 2009\xe2\x80\x94which purports to prohibit all funds made available under\ntitle I of that Act from being used to pay the expenses for any United States delegation\nto a specialized U.N. agency, body, or commission that is chaired or presided over by a\ncountry with a government that the Secretary of State has determined supports international terrorism\xe2\x80\x94unconstitutionally infringes on the President\xe2\x80\x99s authority to conduct\nthe Nation\xe2\x80\x99s diplomacy, and the State Department may disregard it.\nJune 1, 2009\n\nMEMORANDUM OPINION FOR THE ACTING LEGAL ADVISER\nDEPARTMENT OF STATE\nYou have asked for an opinion regarding section 7054 of the Department of State, Foreign Operations, and Related Programs Appropriations\nAct, 2009 (\xe2\x80\x9cForeign Appropriations Act\xe2\x80\x9d), which is division H of the\nOmnibus Appropriations Act, 2009 (\xe2\x80\x9cOmnibus Appropriations Act\xe2\x80\x9d),\nPub. L. No. 111-8, 123 Stat. 524 (H.R. 1105). 1 The President signed the\nOmnibus Appropriations Act into law on March 11, 2009. Section 7054\npurports to prohibit all funds made available under title I of the Foreign\nAppropriations Act from being used to pay the expenses for any United\nStates delegation to a specialized United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d) agency, body,\nor commission that is chaired or presided over by a country with a government that the Secretary of State (\xe2\x80\x9cSecretary\xe2\x80\x9d) has determined supports\ninternational terrorism. You have asked whether section 7054 prevents the\nState Department from using title I funds for the prohibited function. We\nconclude that by purporting to bar the State Department from using title I\nfunds for that function, section 7054 unconstitutionally infringes on the\nPresident\xe2\x80\x99s authority to conduct the Nation\xe2\x80\x99s diplomacy, and the State\nDepartment may disregard it.\n\n1 See Letter for David Barron, Acting Assistant Attorney General, Office of Legal\nCounsel, from Joan E. Donoghue, Acting Legal Adviser, Department of State (May 4,\n2009) (\xe2\x80\x9cDonoghue Letter\xe2\x80\x9d).\n\n221\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nI.\nSection 7054 provides as follows:\nNone of the funds made available under title I of this Act may be\nused to pay expenses for any United States delegation to any specialized agency, body, or commission of the United Nations if such\ncommission is chaired or presided over by a country, the government\nof which the Secretary of State has determined, for purposes of section 6(j)(1) of the Export Administration Act of 1979 (50 U.S.C.\napp. 2405(j)(1)), supports international terrorism.\nSection 6(j)(1) of the Export Administration Act (\xe2\x80\x9cEAA\xe2\x80\x9d) mandates a\nlicense for the export of goods to a country the government of which the\nSecretary has determined \xe2\x80\x9chas repeatedly provided support for acts of\ninternational terrorism\xe2\x80\x9d (\xe2\x80\x9cterrorist list state\xe2\x80\x9d). 2 The limitation imposed by\nsection 7054 applies only to funds made available by title I of the Foreign\nAppropriations Act. You have informed us, however, that title I is the\nonly source of appropriated funds currently available to the State Department for a number of purposes related to the administration of foreign\naffairs, including the carrying out of diplomatic and consular programs.\nYou have further explained that title I appropriations are the only operat2 You have informed us that all terrorist list states were so designated by the Secretary\npursuant to the EAA. The authority granted by the EAA, however, terminated on August\n20, 2001. See 50 U.S.C. app. \xc2\xa7 2419 (2000). That fact does not alter our analysis. Since\nthe EAA terminated, the President, acting under the authority of the International Emergency Economic Powers Act (\xe2\x80\x9cIEEPA\xe2\x80\x9d), 50 U.S.C. \xc2\xa7\xc2\xa7 1701\xe2\x80\x931706 (2006), has annually\nissued executive orders that adopt the provisions of the EAA and that continue Executive\nBranch actions taken initially under the authority of the EAA. See, e.g., Notice of the\nPresident, Continuing of Emergency Regarding Export Control Regulations, 73 Fed. Reg.\n43603 (2008); Exec. Order No. 13222, 3 C.F.R. 783 (2001). (The President also issued\nsimilar orders covering brief, pre-August 20, 2001 periods during which the EAA had\nlapsed and Congress had not yet acted to renew it. See, e.g., Exec. Order No. 12470,\n3 C.F.R. 168 (1984); Exec. Order No. 12444, 3 C.F.R. 214 (1984).). Congress has recognized and ratified this practice. See Pub. L. No. 108-458, \xc2\xa7 7102(c)(3), 118 Stat. 3638,\n3776 (2004) (providing that \xe2\x80\x9c[t]he President shall implement\xe2\x80\x9d certain amendments to\nsection 6(j) of the EAA \xe2\x80\x9cby exercising the authorities of the President under [IEEPA]\xe2\x80\x9d).\nIn light of this history, we believe that Congress intended the reference in section 7054 to\ndeterminations \xe2\x80\x9cfor purposes of 6(j)(1) of the [EAA]\xe2\x80\x9d to encompass, at a minimum,\ndeterminations that the Secretary made prior to EAA\xe2\x80\x99s termination, but which retain their\nforce as a result of the President\xe2\x80\x99s exercise of his authority under IEEPA.\n\n222\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\ning funds available to pay for State Department delegations to specialized\nU.N. entities. See State Department Request for Confirmation of the\nViews of the Office of Legal Counsel on Section 7054, Donoghue Letter\natt. at 3 (\xe2\x80\x9cState Request\xe2\x80\x9d). Section 7054 would thus effectively preclude\nthe State Department from including any representatives in U.S. delegations to any specialized U.N. agency, body, and commission chaired by a\nterrorist list state. You have also informed us that most such government\ndelegations are headed by a State Department official and include one or\nmore additional State Department officials. See State Request at 3.\nIn signing the Omnibus Appropriations Act, President Obama issued\nthe following statement:\nCertain provisions of the bill, in titles I and IV of Division B, title IV\nof Division E, and title VII of Division H, would unduly interfere\nwith my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed\nin negotiations or discussions with international organizations and\nforeign governments. I will not treat these provisions as limiting my\nability to negotiate and enter into agreements with foreign nations.\nStatement on Signing the Omnibus Appropriations Act, 2009, 2009 Daily\nComp. Pres. Doc. No. 145, at 1 (Mar. 11, 2009). Section 7054 is within\ntitle VII of division H, and purports to \xe2\x80\x9ceffectively direct[] the Executive\non how to proceed or not proceed in negotiations or discussions with\ninternational organizations and foreign governments.\xe2\x80\x9d Thus, although the\nPresident\xe2\x80\x99s signing statement did not identify section 7054 specifically, it\nencompasses that provision.\nThe same restriction on the use of appropriated funds has appeared in\nsuccessive appropriations acts since fiscal year 2005. 3 President Bush\n\nSee Department of State, Foreign Operations, and Related Programs Appropriations\nAct, 2008, Pub. L. No. 110-161, div. J, \xc2\xa7 112, 121 Stat. 1844, 2277, 2288 (2007); Science,\nState, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No.\n109-108, \xc2\xa7 637, 119 Stat. 2290, 2347 (2005); Departments of Commerce, Justice, and\nState, the Judiciary, and Related Agencies Appropriations Act, 2005, Pub. L. No. 108447, div. B, \xc2\xa7 627, 118 Stat. 2809, 2853, 2920 (2004); cf. Commerce, Justice, and State,\nthe Judiciary, and Related Agencies Appropriations, 2004, Pub. L. No. 108-199, div. B,\n\xc2\xa7 635, 118 Stat. 3, 46, 101 (2004) (prohibition limited to payment of expenses for delega3\n\n223\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nindicated in signing statements accompanying these appropriations acts\nthat the Executive Branch would construe such restrictions as \xe2\x80\x9cadvisory.\xe2\x80\x9d 4\nConsistent with President Bush\xe2\x80\x99s direction, the Department sent representatives to participate from January 19, 2009, through January 23, 2009,\nin a session of a U.N. specialized body\xe2\x80\x94the executive board of the United Nations Development Program (\xe2\x80\x9cUNDP\xe2\x80\x9d) and the United Nations\nPopulation Fund (\xe2\x80\x9cUNFPA\xe2\x80\x9d)\xe2\x80\x94that was chaired at the time by Iran, a\nterrorist list state. See State Request at 4. Another meeting of the executive board of UNDP/UNFPA, which Iran still chairs, is scheduled for May\n26, 2009 to June 5, 2009, and the State Department\xe2\x80\x94the lead U.S. participant in the proceedings of this body\xe2\x80\x94believes it would be advantageous\nto United States foreign policy objectives to send State Department officials to accompany the U.S. delegation. See id. Moreover, because the\nState Department is contemplating participation in other upcoming meetings of specialized U.N. entities that may fall within the restriction imposed by section 7054, and because the Department may receive little\nprior notice that a terrorist list state will chair a particular U.N. entity in\nthe future, you have asked for more general guidance on whether and\nunder what conditions the Department must comply with section 7054.\nSee id. at 5.\n\ntion to United Nations Human Rights Commission, if chaired by state supporter of\nterrorism).\n4 See Statement on Signing the Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1764, 1764 (Nov. 22, 2005)\n(Pres. Bush) (\xe2\x80\x9cThe executive branch shall construe as advisory the provisions of the Act\nthat purport to direct or burden the Executive\xe2\x80\x99s conduct of foreign relations, including\nthe authority to recognize foreign states and negotiate international agreements on behalf\nof the United States . . . . These provisions include section[] . . . 637.\xe2\x80\x9d); Statement on\nSigning the Consolidated Appropriations Act, 2005, 40 Weekly Comp. Pres. Doc. 2924,\n2924 (Dec. 8, 2004) (Pres. Bush) (\xe2\x80\x9cThe executive branch shall construe as advisory\nprovisions of the [Consolidated Appropriations Act] that purport to direct or burden the\nExecutive\xe2\x80\x99s conduct of foreign relations . . . . Such provisions include: in the CommerceJustice-State Appropriations Act, section[] . . . 627\xe2\x80\x9d); cf. Statement on Signing the Consolidated Appropriations Act, 2004, 40 Weekly Comp. Pres. Doc. 137, 137 (Jan. 23,\n2004) (Pres. Bush) (\xe2\x80\x9cThe executive branch shall construe as advisory the provisions of the\nAct that purport to . . . direct or burden the Executive\xe2\x80\x99s conduct of foreign relations,\nincluding section[] . . . 635 of the Commerce, Justice, State Appropriations Act.\xe2\x80\x9d).\n\n224\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nII.\nAs noted, President Bush announced in previous signing statements that\nthe Executive Branch would construe as advisory restrictions that are\nfunctionally identical to section 7054. See supra note 4. Were such a\nconstruction available here, there would be no need to resolve the question of section 7054\xe2\x80\x99s constitutionality, and we are mindful that \xe2\x80\x9c[t]he\nexecutive branch has an obligation to attempt, insofar as is possible, to\nconstrue a statute so as to preserve its constitutionality.\xe2\x80\x9d Memorandum for\nRobert J. Lipshutz, Counsel to the President, from John M. Harmon,\nAssistant Attorney General, Office of Legal Counsel, Re: Myers Amendment at 11 (Aug. 30, 1977). In our view, however, section 7054 is not\nsusceptible to a saving construction. Congress\xe2\x80\x99s injunction\xe2\x80\x94\xe2\x80\x9cNone of the\nfunds made available under title I of [the Foreign Appropriations Act]\nmay be used\xe2\x80\x9d\xe2\x80\x94is unambiguously phrased in mandatory terms, and we see\nno evidence that Congress intended the word \xe2\x80\x9cmay\xe2\x80\x9d to mean \xe2\x80\x9cshould.\xe2\x80\x9d\nSection 7054 is \xe2\x80\x9cplain and unambiguous,\xe2\x80\x9d United States v. Monsanto, 491\nU.S. 600, 606 (1989), and the canon of constitutional avoidance \xe2\x80\x9chas no\napplication in the absence of statutory ambiguity,\xe2\x80\x9d United States v. Oakland Cannabis Buyers\xe2\x80\x99 Coop., 532 U.S. 483, 494 (2001); see also United\nStates v. Locke, 471 U.S. 84, 96 (1985) (a court cannot \xe2\x80\x9cpress statutory\nconstruction to the point of disingenuous evasion even to avoid a constitutional question\xe2\x80\x9d) (internal quotation marks omitted). Therefore, we do not\nthink that section 7054 can be construed as merely advisory, even to avoid\nthe serious constitutional question we now address.\nIII.\nIn our view, section 7054 impermissibly interferes with the President\xe2\x80\x99s\nauthority to manage the Nation\xe2\x80\x99s foreign diplomacy. To be sure, a determination that a duly enacted statute unconstitutionally infringes on executive authority must be \xe2\x80\x9cwell-founded,\xe2\x80\x9d Memorandum for the Heads of\nExecutive Departments and Agencies, Re: Presidential Signing Statements, 74 Fed. Reg. 10669, 10669 (2009); see also Presidential Authority\nto Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200\xe2\x80\x93\n01 (1994), and Congress quite clearly possesses significant Article I\npowers in the area of foreign affairs, including with respect to questions\nof war and neutrality, commerce and trade with other nations, foreign aid,\n225\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nand immigration. 5 As ample precedent demonstrates, however, Congress\xe2\x80\x99s\npower to legislate in the foreign affairs area does not include the authority\nto attempt to dictate the modes and means by which the President engages\nin international diplomacy with foreign countries and through international fora. Section 7054 constitutes an attempt to exercise just such authority:\nIt effectively denies the President the use of his preferred agents\xe2\x80\x94\nrepresentatives of the State Department\xe2\x80\x94to participate in delegations to\nspecified U.N. entities chaired or presided over by certain countries. As\nthis Office has explained, such statutory restrictions are impermissible\nbecause the President\xe2\x80\x99s constitutional authority to conduct diplomacy bars\nCongress from attempting to determine the \xe2\x80\x9cform and manner in which\nthe United States . . . maintain[s] relations with foreign nations.\xe2\x80\x9d Issues\nRaised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 21 (1992) (\xe2\x80\x9cOfficial or Diplomatic Passports\xe2\x80\x9d)\n(citing Issues Raised by Foreign Relations Authorization Bill, 14 Op.\nO.L.C. 37, 38 (1990) (\xe2\x80\x9cForeign Relations Authorization Bill \xe2\x80\x9d)).\nThe President\xe2\x80\x99s basic authority to conduct the Nation\xe2\x80\x99s diplomatic relations derives from his specific constitutional authorities to \xe2\x80\x9cmake\nTreaties,\xe2\x80\x9d to \xe2\x80\x9cappoint Ambassadors . . . and Consuls\xe2\x80\x9d (subject to Senate\nadvice and consent), U.S. Const. art. II, \xc2\xa7 2, cl. 2, and to \xe2\x80\x9creceive Ambassadors and other public Ministers,\xe2\x80\x9d id. art. II, \xc2\xa7 3. It also flows more\ngenerally from the President\xe2\x80\x99s status as Chief Executive, id. art. II, \xc2\xa7 1,\ncl. 1, and from the requirement in Article II, Section 3 of the Constitution\nthat the President \xe2\x80\x9cshall take Care that the Laws be faithfully executed.\xe2\x80\x9d 6\nSee, e.g., Perez v. Brownell, 356 U.S. 44, 57 (1958) (\xe2\x80\x9cAlthough there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the lawmaking organ of the Nation.\xe2\x80\x9d), overruled on other grounds, Afrovim v. Rusk, 387 U.S.\n253 (1967); Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893); Hamdi v.\nRumsfeld, 542 U.S. 507, 582 (2004) (Thomas, J., dissenting) (\xe2\x80\x9cCongress, to be sure, has a\nsubstantial and essential role in both foreign affairs and national security.\xe2\x80\x9d); see generally\nLouis Henkin, Foreign Affairs and the United States Constitution 72\xe2\x80\x9380 (2d ed. 1996).\n6 See Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S. 396, 414 (2003) (\xe2\x80\x9cAlthough the source of\nthe President\xe2\x80\x99s power to act in foreign affairs does not enjoy any textual detail, the\nhistorical gloss on the \xe2\x80\x98executive Power\xe2\x80\x99 vested in Article II of the Constitution has\nrecognized the President\xe2\x80\x99s \xe2\x80\x98vast share of responsibility for the conduct of our foreign\nrelations.\xe2\x80\x99\xe2\x80\x9d) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610\xe2\x80\x9311\n(1952) (Frankfurter, J., concurring)); see also 4 The Papers of John Marshall 1044\n5\n\n226\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nAs a result of these authorities, it is well established that the President is\n\xe2\x80\x9cthe constitutional representative of the United States in its dealings with\nforeign nations.\xe2\x80\x9d United States v. Louisiana, 363 U.S. 1, 35 (1960). As\nJohn Marshall noted in his famous speech of March 7, 1800 before the\nHouse of Representatives (while still a member of that body), the Executive Branch is \xe2\x80\x9centrusted with the whole foreign intercourse of the nation,\nwith the negotiation of all its treaties, with the power of demanding a\nreciprocal performance of the article, which is accountable to the nation\nfor the violation of its engagements, with foreign nations, and for the\nconsequences resulting from such violation.\xe2\x80\x9d John Marshall, Speech of\nMarch 7, 1800, in 4 The Papers of John Marshall 104\xe2\x80\x9305 (Charles T.\nCullen ed., 1984). The President is, in other words, the \xe2\x80\x9corgan\xe2\x80\x9d of the\nNation\xe2\x80\x99s diplomatic relations. Pacificus No. 1 (June 29, 1793), reprinted\nin 15 The Papers of Alexander Hamilton 33, 38 (Harold C. Syrett ed.,\n1969) (italics removed).\nIn addition, the Executive Branch has long adhered to the view that\nCongress is limited in its authority to regulate the President\xe2\x80\x99s conduct of\ndiplomatic relations. Specifically, it may not (as section 7054 would)\nplace limits on the President\xe2\x80\x99s use of his preferred agents to engage in a\ncategory of important diplomatic relations, and thereby determine the\nform and manner in which the Executive engages in diplomacy. Secretary\nof State Thomas Jefferson, for example, set forth this view in a legal\nopinion that he delivered to President Washington in the midst of an\nongoing debate in the first Congress over a proposed amendment to a bill\nto fund the exercise of foreign relations\xe2\x80\x94a bill that eventually became the\nAct Providing the Means of Intercourse Between the United States and\nForeign Nations, ch. 22, 1 Stat. 128 (1790) (\xe2\x80\x9cForeign Intercourse Appropriations Act\xe2\x80\x9d). See Opinion on the Powers of the Senate Respecting\nDiplomatic Appointments (Apr. 24, 1790), reprinted in 16 The Papers of\nThomas Jefferson 378\xe2\x80\x9380 (Julian P. Boyd ed., 1961). The proposed\namendment would have given the Senate a role in approving the President\xe2\x80\x99s assignments of particular grades of diplomats to particular foreign\nposts. See 12 Documentary History of the First Federal Congress of the\n\n(Charles T. Cullen ed., 1984) (observing that President\xe2\x80\x99s duty \xe2\x80\x9cto execute the laws\xe2\x80\x9d\nsupports his foreign affairs powers).\n\n227\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nUnited States of America 68\xe2\x80\x9383 (Helen E. Veit et al. eds., 1994). 7 Jefferson\xe2\x80\x94objecting to what he believed to be the Senate\xe2\x80\x99s impermissible\nattempt to extend its advice and consent authority over treaties and presidential appointments to executive determinations about the conduct of\ndiplomacy\xe2\x80\x94also shed light on the special role that the Constitution assigns to the President when it comes to the conduct of diplomatic relations. \xe2\x80\x9cThe transaction of business with foreign nations is Executive\naltogether . . . except as to such portions of it as are specially submitted to\nthe Senate,\xe2\x80\x9d Jefferson stated, with \xe2\x80\x9c[e]xceptions . . . to be construed\nstrictly.\xe2\x80\x9d 16 The Papers of Thomas Jefferson at 379. In the course of\nobjecting to the proposal at hand, Jefferson not only opined that \xe2\x80\x9c[t]he\nSenate is not supposed by the Constitution to be acquainted with the\nconcerns of the Executive department . . . [they cannot] therefore be\nqualified to judge of the necessity which calls for a mission to any particular place . . . ,\xe2\x80\x9d but also that \xe2\x80\x9c[a]ll this is left to the President.\xe2\x80\x9d Id.; see\nalso Appointment of Consuls, 7 Op. Att\xe2\x80\x99y Gen. 242, 250 (1855) (affirming\nJefferson\xe2\x80\x99s view in concluding that the \xe2\x80\x9cpower of determining when and\nat what places to appoint [consuls], and of what rank to appoint them[]\xe2\x80\x9d is\nconstitutionally \xe2\x80\x9cintrusted to the sole discretion of the Executive\xe2\x80\x9d).\nThe available evidence suggests that Washington understood John Jay\nand James Madison to share Jefferson\xe2\x80\x99s views as expressed in this opinion, both as to the constraints on the Senate\xe2\x80\x99s powers and the nature of the\nspecial diplomatic authorities the Constitution confers on the President.\nSee Michael D. Ramsey, The Constitution\xe2\x80\x99s Text in Foreign Affairs 83\n(2007) (noting Washington\xe2\x80\x99s observation in his diary that \xe2\x80\x9cMadison\xe2\x80\x99s\n\xe2\x80\x98opinion coincides with Mr. Jay\xe2\x80\x99s and Mr. Jefferson\xe2\x80\x99s\xe2\x80\x94to wit\xe2\x80\x94that they\n[i.e., the Senate] have no Constitutional right to interfere with either [the\ndestination or grade of diplomats], . . . their powers extending no farther\nthan to an approbation or disapprobation of the person nominated by the\nPresident, all the rest being Executive and vested in the President by the\nConstitution.\xe2\x80\x99\xe2\x80\x9d) (quoting 4 Diaries of George Washington 122 (Apr. 27,\n1790) (John Fitzpatrick ed., 1925)) (emphasis added). Indeed, prior to the\n\nCongress ultimately rejected the proposed amendment, and the Foreign Intercourse\nAppropriations Act as enacted appropriated an unconditional annual diplomatic budget\nand made the President alone responsible for deciding how to spend the lump sum. See\n1 Stat. at 128\xe2\x80\x9329.\n7\n\n228\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nConstitution\xe2\x80\x99s ratification, John Jay, in explaining why the President\nshould have the discretion to decide when to seek the Senate\xe2\x80\x99s advice on\ntreaty negotiation, had sounded a similar theme:\nThose matters which in negotiations usually require the most secrecy\nand the most dispatch, are those preparatory and auxiliary measures\nwhich are not otherwise important in a national view, than as they\ntend to facilitate the attainment of the objects of the negotiation. For\nthese, the president will find no difficulty to provide; and should any\ncircumstance occur which requires the advice and consent of the\nsenate, he may at any time convene them. Thus we see that the constitution provides that our negotiations for treaties shall have every\nadvantage which can be derived from talents, information, integrity,\nand deliberate investigations, on the one hand, and from secrecy and\ndispatch on the other.\nThe Federalist No. 64, at 205 (McLean\xe2\x80\x99s ed. 1787); accord The Federalist No. 84, at 355 (McLean\xe2\x80\x99s ed. 1787) (Alexander Hamilton) (\xe2\x80\x9c[T]he\nmanagement of foreign negotiations will naturally devolve upon [the\nPresident] according to general principles concerted with the Senate, and\nsubject to their final concurrence.\xe2\x80\x9d).\nThese executive officials were not alone in taking the position that the\nPresident enjoys significant discretion in determining how to negotiate\nwith foreign nations. Newspaper accounts of the House debate over the\nForeign Intercourse Funding Act indicate that there was strong opposition\nto the proposed amendment (opposition which prompted Washington\xe2\x80\x99s\nrequest for the Jefferson opinion). See 12 Documentary History of the\nFirst Federal Congress of the United States of America at 68\xe2\x80\x9383. According to one report, among the positions of the \xe2\x80\x9cconsiderable majority\xe2\x80\x9d in\nthe House that rejected the amendment was that \xe2\x80\x9cintercourse with foreign\nnations is a trust specially committed to the President of the United States;\nand after the Legislature has made the necessary provision to enable him\nto discharge that trust, the manner how it shall be executed must rest with\nhim.\xe2\x80\x9d Id. at 72, 83.\nMembers of Congress expressed similar views in other contexts during\nthe Nation\xe2\x80\x99s early history. In 1796, for example, Senator Robert Ellsworth, a future Supreme Court Justice, explained that \xe2\x80\x9c[n]either [the\nlegislative nor the judicial] branch had a right to dictate to the President\n229\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nwhat he should answer [to foreign nations]. The Constitution left the\nwhole business in his breast.\xe2\x80\x9d 5 Annals of Cong. 28, 32 (1796). And in\n1816, the Senate Committee on Foreign Relations made similar arguments\nin a report to the full Senate opposing adoption of a proposed resolution\nrecommending that the President pursue certain negotiations with Great\nBritain. See Compilation of Reports of the Senate Committee on Foreign\nRelations, S. Doc. No. 231, pt. 8, at 22\xe2\x80\x9325 (1901). The report stated that:\nThe President is the constitutional representative of the United States\nwith regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine\nwhen, how, and upon what subjects negotiation may be urged with\nthe greatest prospect of success. For his conduct he is responsible to\nthe Constitution.\nId. at 24. \xe2\x80\x9c[T]he interference of the Senate in the direction of foreign\nnegotiations\xe2\x80\x9d was, the Committee thought, \xe2\x80\x9ccalculated to diminish that\nresponsibility and thereby to impair the best security for the national\nsafety.\xe2\x80\x9d Id.\nConsistent with these principles, Congress may by statute affirm the\nPresident\xe2\x80\x99s authority to determine whether, how, when, and through\nwhom to engage in foreign diplomacy. 8 But when Congress takes the\nunusual step of purporting to impose statutory restrictions on this wellrecognized authority, the Executive Branch has resisted. For example,\nCongress enacted an appropriations rider in 1913, providing that\n\xe2\x80\x9c[h]ereafter the Executive shall not extend or accept any invitation to\nparticipate in any international congress, conference, or like event, without first having specific authority of law to do so.\xe2\x80\x9d Act of Mar. 4, 1913,\nch. 149, 37 Stat. 913 (1913) (codified at 22 U.S.C. \xc2\xa7 262 (2006)). The\nExecutive has not acted in accord with that requirement, see Henry M.\nWriston, American Participation in International Conferences, 20 Am. J.\nInt\xe2\x80\x99l L. 33, 40 (1926) (observing that \xe2\x80\x9cthere is not a single case [since\n1913] where the President secured from Congress authorization to accept\nan invitation to a conference of a political or diplomatic character,\xe2\x80\x9d and\nSee, e.g., 22 U.S.C. \xc2\xa7 287a (2006) (\xe2\x80\x9c[W]hen representing the United States in the\nrespective organs and agencies of the United Nations, [U.S. representatives] shall, at all\ntimes, act in accordance with the instructions of the President transmitted by the Secretary\nof State unless other means of transmission is directed by the President.\xe2\x80\x9d).\n8\n\n230\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nthat \xe2\x80\x9csince 1917 the whole practice of requesting Congress for authority\nto accept invitations to any sort of international conference has virtually\nfallen into disuse\xe2\x80\x9d), and the measure is now a \xe2\x80\x9cknown dead letter,\xe2\x80\x9d Louis\nHenkin, Foreign Affairs and the United States Constitution 118 (2d ed.\n1996). Indeed, when first informed of the provision\xe2\x80\x99s existence (more\nthan three years after its enactment), President Wilson reportedly termed\nit \xe2\x80\x9cutterly futile.\xe2\x80\x9d Wriston, 20 Am. J. Int\xe2\x80\x99l L. at 39. Wilson\xe2\x80\x99s dismissive\ncharacterization accorded with the view, expressed in a leading treatise of\nthe day, that the President \xe2\x80\x9ccannot be compelled by a resolution of either\nhouse or of both houses of Congress to exercise\xe2\x80\x9d his constitutional powers\nwith respect to \xe2\x80\x9cinstituting negotiations.\xe2\x80\x9d Samuel B. Crandall, Treaties:\nTheir Making and Enforcement 74 (2d ed. 1916).\nIn more recent decades, the Executive has continued to object when\nCongress has attempted to impose limits on the form and manner by\nwhich the President exercises his diplomatic powers. In particular, the\nExecutive has asserted on numerous occasions that the President possesses the \xe2\x80\x9c\xe2\x80\x98exclusive authority to determine the time, scope, and objectives\xe2\x80\x99\xe2\x80\x9d\nof international negotiations or discussions, including the authority \xe2\x80\x9cto\ndetermine the individuals who will\xe2\x80\x9d represent the United States in those\ndiplomatic exchanges. 9 And this Office has \xe2\x80\x9crepeatedly objected on con-\n\n9 Foreign Relations Authorization Bill, 14 Op. O.L.C. at 38, 41 (quoting Statement on\nSigning the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, 2 Pub.\nPapers of Pres. Ronald Reagan 1541, 1542 (Dec. 22, 1987); see also Section 235A of the\nImmigration and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (same); Statement on\nSigning the Sustainable Fisheries Act, 32 Weekly Comp. Pres. Doc. 2040, 2041 (Oct. 11,\n1996) (Pres. Clinton) (\xe2\x80\x9cUnder our Constitution, it is the President who articulates the\nNation\xe2\x80\x99s foreign policy and who determines the timing and subject matter of our negotiations with foreign nations.\xe2\x80\x9d); Statement on Signing the Foreign Relations Authorization\nAct, Fiscal Years 1992 and 1993, 27 Weekly Comp. Pres. Doc. 1527, 1528 (Oct. 28,\n1991) (Pres. Bush) (\xe2\x80\x9cThe Constitution . . . vests exclusive authority in the President to\ncontrol the timing and substance of negotiations with foreign governments and to choose\nthe officials who will negotiate on behalf of the United States.\xe2\x80\x9d); Participation of the\nState Department in Producer-Consumer Fora and Other International Negotiations\nAimed at Stabilizing International Commodity Markets, 2 Op. O.L.C. 227, 228 n.1 (1978)\n(\xe2\x80\x9c[W]e think it doubtful that the President\xe2\x80\x99s power to negotiate with foreign governments\nover subjects of national concern can ever be subject to unqualified restriction by statute.\xe2\x80\x9d); accord Henkin, Foreign Affairs at 42 (\xe2\x80\x9cAs \xe2\x80\x98sole organ,\xe2\x80\x99 the President determines\nalso how, when, where, and by whom the United States should make or receive communi-\n\n231\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nstitutional grounds to Congressional attempts to mandate the time, manner\nand content of diplomatic negotiations,\xe2\x80\x9d including in the context of potential engagement with international fora. See Memorandum for Alan Kreczko, Legal Adviser, National Security Council, from Walter Dellinger,\nAssistant Attorney General, Office of Legal Counsel, Re: WTO Dispute\nSettlement Review Commission Act at 3 (Feb. 9, 1995) (\xe2\x80\x9cDellinger WTO\nMemo\xe2\x80\x9d).\nFor example, we concluded that it would be unconstitutional for Congress to adopt joint resolutions mandating that the President enter negotiations to modify the rules of the World Trade Organization. See id. Relatedly, we determined that a legislative provision purporting to prevent the\nState Department from expending appropriated funds on delegates to an\ninternational conference unless legislative representatives were included\nin the delegation was an \xe2\x80\x9cimpermissibl[e] interfere[nce]\xe2\x80\x9d with the President\xe2\x80\x99s \xe2\x80\x9cconstitutional responsibility to represent the United States abroad\nand thus to choose the individuals through whom the Nation\xe2\x80\x99s foreign\naffairs are conducted.\xe2\x80\x9d Foreign Relations Authorization Bill, 14 Op.\nO.L.C. at 38, 41. And the Executive Branch has objected numerous times\non constitutional grounds to legislative provisions purporting to preclude\nany U.S. government employee from negotiating with (or recognizing) the\nPalestine Liberation Organization (\xe2\x80\x9cPLO\xe2\x80\x9d) or its representatives until the\nPLO had met certain conditions. 10\n\ncations, and there is nothing to suggest that he is limited as to time, place, form, or\nforum.\xe2\x80\x9d).\n10 See, e.g., Memorandum for Carol T. Crawford, Assistant Attorney General, Office of\nLegislative Affairs, from John O. McGinnis, Deputy Assistant Attorney General, Office\nof Legal Counsel, Re: H.R. 2939 at 3 (Oct. 19, 1989); see also International Security and\nDevelopment Cooperation Act of 1985: Statement on Signing S. 960 Into Law, 21 Weekly\nComp. Pres. Doc. 972, 973 (Aug. 8, 1985) (Pres. Reagan) (objecting to such a provision\nas a \xe2\x80\x9ccongressional effort to impose legislative restrictions or directions with respect to\nthe conduct of international negotiations which, under article II of the Constitution, is a\nfunction reserved exclusively to the President\xe2\x80\x9d); accord Statement on Signing the Foreign\nRelations Authorization Act, Fiscal Years 1990 and 1991, 26 Weekly Comp. Pres. Doc.\n266, 267 (Feb. 16, 1990) (Pres. Bush) (stating that provision \xe2\x80\x9crestrict[ing] the expenditure\nof appropriated funds for carrying on \xe2\x80\x98the current dialogue in the Middle East peace\nprocess with any [PLO representative]\xe2\x80\x99\xe2\x80\x9d would, if \xe2\x80\x9cinterpreted to prohibit negotiations\nwith particular individuals under certain circumstances,\xe2\x80\x9d \xe2\x80\x9cimpermissibly limit my constitutional authority to negotiate with foreign organizations\xe2\x80\x9d).\n\n232\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nIn objecting to one such provision, this Office explained that Congress\n\xe2\x80\x9cpossesses no constitutional authority to forbid the President from engaging in diplomatic contacts.\xe2\x80\x9d Memorandum for Carol T. Crawford, Assistant Attorney General, Office of Legislative Affairs, from John O.\nMcGinnis, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: H.R. 2939, at 3 (Oct. 19, 1989). Other Executive Branch precedents\nare to similar effect. See Bill To Relocate United States Embassy from Tel\nAviv to Jerusalem, 19 Op. O.L.C. 123, 126 (1995) (concluding that a\nproposed bill conditioning the State Department\xe2\x80\x99s ability to obligate\ncertain appropriated funds upon the relocation of the United States\xe2\x80\x99s\nIsraeli embassy to Jerusalem would constitute an unconstitutional invasion of the President\xe2\x80\x99s authority to determine the form and manner of the\nNation\xe2\x80\x99s diplomatic relations); Official or Diplomatic Passports, 16 Op.\nO.L.C. at 24\xe2\x80\x9328 (deeming it an unconstitutional \xe2\x80\x9cinterfere[nce] with the\nPresident\xe2\x80\x99s communications to foreign governments\xe2\x80\x9d and his \xe2\x80\x9cability to\nconduct diplomacy\xe2\x80\x9d for Congress to preclude the State Department\xe2\x80\x99s use\nof appropriated funds to issue additional diplomatic passports of a type\nnecessary for government employees to travel to certain Arab League\ncountries); Department of State, International Communication Agency,\nand Board for International Broadcasting Appropriations Bill: Statement\non Signing H.R. 3363 into Law, 15 Weekly Comp. Pres. Doc. 1434, 1434\n(Aug. 15, 1979) (Pres. Carter) (\xe2\x80\x9cI believe that Congress cannot mandate\nthe establishment of consular relations at a time and place unacceptable to\nthe President.\xe2\x80\x9d). 11\nJudicial support for the Executive Branch\xe2\x80\x99s position can be found in\nEarth Island Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993). In that\ncase, the United States Court of Appeals for the Ninth Circuit struck down\na statute purporting to require the Secretary of State to initiate negotia11 See also Placing of United States Armed Forces Under United Nations Operational\nor Tactical Control, 20 Op. O.L.C. 182, 186 (1996) (proposed bill prohibiting the obligation or expenditure of appropriated funds by the Department of Defense for the activities\nof elements of the armed forces placed under the United Nations\xe2\x80\x99s operational or tactical\ncontrol would \xe2\x80\x9cimpermissibly undermin[e] the President\xe2\x80\x99s constitutional authority with\nrespect to the conduct of diplomacy\xe2\x80\x9d); Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 193 (1996) (legislative provision requiring the President to\nmake a detailed certification before using appropriated funds to expand the United\nStates\xe2\x80\x99s diplomatic presence in Vietnam constituted \xe2\x80\x9can unconstitutional condition on the\nexercise of the President\xe2\x80\x99s\xe2\x80\x9d recognition power).\n\n233\n\n\x0c33 Op. O.L.C. 221 (2009)\n\ntions with, and otherwise engage, foreign governments for the purposes of\ndeveloping and entering into international agreements for the protection\nof sea turtles. The court deemed the statute an unconstitutional \xe2\x80\x9cintru[sion] upon the conduct of foreign relations by the Executive.\xe2\x80\x9d Id. at\n653. Additional judicial support can be found in the Supreme Court\xe2\x80\x99s\nclear dicta in United States v. Curtiss-Wright Export Corp., 299 U.S. 304\n(1936): \xe2\x80\x9c[T]he President alone has the power to speak or listen as a representative of the nation. . . . Into the field of negotiation the Senate cannot\nintrude; and Congress itself is powerless to invade it.\xe2\x80\x9d Id. at 319.\nThat the President possesses the exclusive power to determine how to\nconduct diplomacy with other nations does not mean that Congress is\nwithout relevant authority. For example, the Senate must approve the\ntreaties the President negotiates, see U.S. Const. art. II, \xc2\xa7 2, cl. 2, and\nCongress can, by a subsequently enacted statute, limit the effect of treaties, see Whitney v. Robertson, 124 U.S. 190, 194 (1888) (stating that if a\ntreaty and a statute are inconsistent, \xe2\x80\x9cthe one last in date will control the\nother\xe2\x80\x9d). The Senate may even refuse its consent to a treaty if an international organization makes entry into such treaty a necessary precondition\nof United States participation in the proceedings of that organization. 12\nThe statutory limitation at issue here, however, does not constitute such\nan exercise of Congress\xe2\x80\x99s legitimate authority in the area of foreign affairs; rather, it purports to restrict the President from engaging in diplomacy through international fora that are organized pursuant to a treaty to\nwhich the United States is a party. See United Nations Charter, Jun. 26,\n1945, 59 Stat. 1031, 1031, 1213 (noting that Senate consented to ratification of U.N. Charter on July 28, 1948). Section 7054, in other words,\nseeks to regulate who may participate in the delegations the President may\nsend to the international fora of an organization to which the United\nStates belongs, and at which the United States would be received were its\ndelegations to be sent.\n12 In addition, although the question is not settled, Congress may possess some authority to withdraw the United States from membership in an international organization\xe2\x80\x94at\nleast where the organization relates to a subject matter, such as foreign commerce, that\nfalls within Congress\xe2\x80\x99s enumerated powers, U.S. Const. art. I, \xc2\xa7 8, cl. 3. See Dellinger\nWTO Memo at 4\xe2\x80\x936; cf. Edward S. Corwin, The President: Office and Powers, 1787\xe2\x80\x93\n1984, at 222 (5th ed. 1984) (arguing that Congress possesses \xe2\x80\x9cvast powers to determine\nthe bounds within which a President may be left to work out a foreign policy\xe2\x80\x9d).\n\n234\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nNor is the impact of section 7054 on the President\xe2\x80\x99s discretion to determine the \xe2\x80\x9cform and manner\xe2\x80\x9d of the Nation\xe2\x80\x99s diplomacy merely hypothetical. You have explained to us that \xe2\x80\x9cUnited Nations bodies and affiliated agencies are generally responsible for marshalling United Nations\nmember state responses to issues that fall within their purview.\xe2\x80\x9d State\nRequest at 3. Accordingly, full U.S. participation in such bodies facilitates\nthe type of direct diplomacy that is critically important to advancing U.S.\nobjectives with respect to the issues under discussion. Id. at 4. Moreover,\nthe decision to send a full complement of government representatives to a\nclass of entities that are so centrally important to the business of the U.N.\nmay affect the standing and influence of the U.S. within the community of\nnations and thereby have a deleterious effect on the President\xe2\x80\x99s diplomatic\nefforts more broadly. That Congress has purported to restrict the President\xe2\x80\x99s reliance on the State Department\xe2\x80\x94the lead and most experienced\nand capable government agency with respect to U.N. relations, see 22\nU.S.C. \xc2\xa7\xc2\xa7 287, 287a (2006); see also State Request at 3\xe2\x80\x934\xe2\x80\x94further\nheightens the extent to which section 7054 impermissibly restrains the\nPresident\xe2\x80\x99s authority. Indeed, with reference to the particular context of\nthe upcoming meeting of the executive board of UNDP/UNFPA, you have\nexplained that \xe2\x80\x9cprohibiting State Department participation . . . would\nsignificantly hinder direct U.S. engagement in important diplomatic\nefforts, undermining U.S. strategic foreign policy interests.\xe2\x80\x9d State Request\nat 4.\nFor these reasons, section 7054\xe2\x80\x99s prevention of the inclusion of State\nDepartment representatives in delegations to the specified U.N. entities is\nunconstitutional.\nIV.\nOur conclusion is not affected by the fact that Congress has drafted its\nrestriction as a prohibition on the use of appropriated funds rather than as\na direct prohibition. Congress\xe2\x80\x99s spending power is undoubtedly broad,\nand, as a general matter, Congress may decline to appropriate money\naltogether for a particular function, or place binding conditions on the\n\n235\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nappropriations it does make. 13 But as the Executive Branch has repeatedly\nobserved, \xe2\x80\x9cit does not necessarily follow that [Congress] may attach\nwhatever condition it desires to an appropriation,\xe2\x80\x9d 14 for \xe2\x80\x9cCongress may\nnot deploy [the spending power] to accomplish unconstitutional ends.\xe2\x80\x9d 15\nThe Supreme Court has affirmed this fundamental proposition on a number of occasions. The most notable case is United States v. Lovett, 328\nU.S. 303 (1946). There, the Court expressly rejected the proposition that\nthe appropriations power is \xe2\x80\x9cplenary and not subject to judicial review,\xe2\x80\x9d\nand struck down as an unconstitutional bill of attainder a provision in an\nappropriations act that barred the payment of salaries to named federal\nemployees. Id. at 305, 307; see also United States v. Klein, 80 U.S. (13\nWall.) 128, 147\xe2\x80\x9348 (1871) (deeming an appropriations proviso that \xe2\x80\x9cimpair[ed] the effect of a [presidential] pardon\xe2\x80\x9d void as an unconstitutional\n\xe2\x80\x9cinfring[ement]\xe2\x80\x9d on \xe2\x80\x9cthe constitutional power of the Executive\xe2\x80\x9d); Office\nof Personnel Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J.,\nconcurring) (noting that \xe2\x80\x9cthe [majority] does not state that statutory reSee U.S. Const. art. I, \xc2\xa7 9, cl. 7 (\xe2\x80\x9cNo Money shall be drawn from the Treasury, but in\nConsequence of Appropriations made by Law[.]\xe2\x80\x9d); United States v. MacCollom, 426 U.S.\n317, 321 (1976) (\xe2\x80\x9cThe established rule is that the expenditure of public funds is proper\nonly when authorized by Congress[.]\xe2\x80\x9d) (citing Reeside v. Walker, 52 U.S. (11 How.) 272,\n291 (1850)); Authority of Congressional Committees to Disapprove Action of Executive\nBranch, 41 Op. Att\xe2\x80\x99y Gen. 230, 233 (1955) (Brownell) (\xe2\x80\x9cIt is recognized that Congress\nmay grant or withhold appropriations as it chooses, and when making an appropriation\nmay direct the purposes to which the appropriation shall be devoted.\xe2\x80\x9d); Memorandum for\nthe Acting Solicitor General, from John F. Davis, Office of Legal Counsel, Re: Validity of\nSection 207 of Current Appropriation Act Providing That None of the Funds May Be Used\nin the Santa Margarita Litigation at 2 n.2 (June 26, 1953) (\xe2\x80\x9cThe use of a rider to an\nappropriation act to control executive action is by no means novel.\xe2\x80\x9d).\n14 The President and the War Power: South Vietnam and the Cambodian Sanctuaries,\n1 Op. O.L.C. Supp. 321, 334 n.3 (1970).\n15 Presidential Certification Regarding the Provision of Documents to the House of\nRepresentatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253, 266\n(1996); Authority of Congressional Committees, 41 Op. Att\xe2\x80\x99y Gen. at 233 (\xe2\x80\x9cIf the practice\nof attaching invalid conditions to legislative enactments were permissible, it is evident\nthat the constitutional system of the separability of the branches of Government would be\nplaced in the gravest jeopardy.\xe2\x80\x9d); Constitutionality of Proposed Legislation Affecting Tax\nRefunds, 37 Op. Att\xe2\x80\x99y Gen. 56, 61 (1933) (Mitchell) (\xe2\x80\x9cCongress may not, by conditions\nattached to appropriations, provide for a discharge of the functions of Government in a\nmanner not authorized by the Constitution. If such a practice were permissible, Congress\ncould subvert the Constitution.\xe2\x80\x9d).\n13\n\n236\n\n\x0cLegislation Prohibiting Spending for Delegations to U.N. Agencies\n\nstrictions on appropriations may never fall even . . . if they encroach on\nthe powers reserved to another branch of the Federal Government\xe2\x80\x9d).\nConsistent with these precedents, the Executive Branch has long adhered to the view that \xe2\x80\x9cCongress cannot use the appropriations power to\ncontrol a Presidential power that is beyond its direct control.\xe2\x80\x9d Presidential\nCertification Regarding the Provision of Documents to the House of\nRepresentatives Under the Mexican Debt Disclosure Act of 1995, 20 Op.\nO.L.C. 253, 267 (1996) (\xe2\x80\x9cMexican Debt Disclosure Act\xe2\x80\x9d) (internal quotation marks omitted); Mutual Security Program\xe2\x80\x94Cutoff of Funds from\nOffice of Inspector General and Comptroller, 41 Op. Att\xe2\x80\x99y Gen. 507, 530\n(1960) (Rogers). 16 This proposition applies with equal force in the foreign\naffairs context. 17 Indeed, on numerous occasions, this Office has invoked\nthe specific principle that \xe2\x80\x9cthe spending power may not be deployed to\ninvade core Presidential prerogatives in the conduct of diplomacy.\xe2\x80\x9d Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189,\n197 (1996) (\xe2\x80\x9cSection 609\xe2\x80\x9d) (citing precedents for this principle from early\n19th century involving objections to appropriations riders by Representative Daniel Webster, then-Secretary of State John Quincy Adams, and\nmembers of Congress); see supra p. 233 (discussing memoranda and\nopinions). Section 7054, by purporting to use the appropriations power to\nenact a targeted restriction designed to dictate the form and manner\n\n16 The Supreme Court suggested in South Dakota v. Dole, 483 U.S. 203 (1987), that\n\xe2\x80\x9cthe constitutional limitations on Congress when exercising its spending power\xe2\x80\x9d vis-\xc3\xa0-vis\nthe States \xe2\x80\x9care less exacting than those on its authority to regulate directly.\xe2\x80\x9d Id. at 209.\nBut the Court has since made clear that Congress does not enjoy such heightened latitude\nwhen it purports to impose spending conditions on the Executive Branch, for \xe2\x80\x9cDole did\nnot involve separation-of-powers principles.\xe2\x80\x9d Metro. Wash. Airports Auth. v. Citizens for\nthe Abatement of Aircraft Noise, Inc., 501 U.S. 252, 271 (1991); see also Official or\nDiplomatic Passports, 16 Op. O.L.C. at 29 (Dole does not apply to spending conditions in\nthe separation of powers context).\n17 See Mexican Debt Disclosure Act, 20 Op. O.L.C. at 266 (\xe2\x80\x9c\xe2\x80\x98Congress may not use its\npower over appropriations of public funds \xe2\x80\x9c\xe2\x80\x98to attach conditions to Executive Branch\nappropriations requiring the President to relinquish his constitutional discretion in foreign\naffairs.\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d) (quoting Official or Diplomatic Passports, 16 Op. O.L.C. at 28 (quoting\nForeign Relations Authorization Bill, 14 Op. O.L.C. at 42 n.3 (quoting Constitutionality\nof Proposed Statutory Provision Requiring Prior Congressional Notification for Certain\nCIA Covert Actions, 13 Op. O.L.C. 258, 261 (1989)))).\n\n237\n\n\x0c33 Op. O.L.C. 221 (2009)\n\nthrough which the President may conduct the nation\xe2\x80\x99s diplomacy, is akin\nto these prior provisions. 18\nV.\nAccordingly, the Secretary would be justified in disregarding section\n7054\xe2\x80\x94and using funds appropriated in title I for the purpose of paying\nthe expenses of delegations to U.N. entities chaired by terrorist list states.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n18 Because there is no evidence that the Foreign Appropriations Act \xe2\x80\x9cwithout [section\n7054] will not function \xe2\x80\x98in a manner consistent with the intent of Congress,\xe2\x80\x99\xe2\x80\x9d section\n7054 is \xe2\x80\x9cseverable.\xe2\x80\x9d Official or Diplomatic Passports, 16 Op. O.L.C. at 29 (quoting\nAlaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987)). Accordingly, section 7054\xe2\x80\x99s\ninvalidity does not call into question the validity of any of the other provisions of the Act.\nSee Section 609, 20 Op. O.L.C. at 198 n.21; Foreign Relations Authorization Bill, 14 Op.\nO.L.C. at 44 (\xe2\x80\x9cBecause the [unconstitutional] condition is severable, the President may\nenforce the remainder of the provision, disregarding the condition.\xe2\x80\x9d); cf. Memorial of\nCaptain Meigs, 9 Op. Att\xe2\x80\x99y Gen. 462, 469\xe2\x80\x9370 (1860) (Black) (\xe2\x80\x9c[I]f a condition . . . is\nvoid, it can have no effect whatever either upon the subject-matter or upon other parts of\nthe law to which it is appended[.]\xe2\x80\x9d).\n\n238\n\n\x0c'