b'Waiver of Claims for Damages Arising Out of Cooperative\nSpace Activity\nCongress has not authorized the National Aeronautics and Space Administration to waive subrogated\nclaims on behalf of federal agencies against foreign States for damages arising out of cooperative\nspace activity. An amendm ent to the Space Act would be necessary to grant NASA such authority.\nThe President m ay waive claims, including subrogated claims, against foreign governments, in\nexchange for a reciprocal waiver from the foreign government. The President may delegate this\nauthority to an agency head.\nThe weight o f authority supports the President\xe2\x80\x99s power to waive state claims against a foreign govern\xc2\xad\nm en t\n\nJune 7, 1995\nM e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r\nD epa r tm en t o f Sta te\n\nThis memorandum responds to your request for our opinion concerning a legal\nmatter under discussion between the Department of State and the National Aero\xc2\xad\nnautics and Space Administration (\xe2\x80\x9c NASA\xe2\x80\x9d ). NASA has been negotiating execu\xc2\xad\ntive agreements with Japan and certain other foreign States under which the United\nStates and those States would agree to waive all claims, including subrogated\nclaims, against the other for damages arising out of cooperative space activity.\nYou have asked whether NASA is authorized to waive subrogated claims on\nbehalf of other federal agencies, and if not, how a govemment-wide waiver could\nbe implemented. In addition, you have asked whether the federal government may\nwaive claims for damages to which state governments may be subrogated.\nWe have concluded that Congress has not authorized NASA to waive such\nclaims on behalf of other federal agencies. An amendment to the Space Act would\nbe necessary to grant NASA this authority. At your request, we have considered\na number of alternative sources of authorization for waiver of subrogated claims.\nWhile the full scope of the President\xe2\x80\x99s authority in this regard is unclear, we\nhave concluded that the President may waive claims, including subrogated claims,\nagainst foreign governments, in exchange for a reciprocal waiver from the foreign\ngovernment, and he may delegate that authority to an agency head.\nI. Background\nAccording to your submission, in mid-November 1994, NASA requested\nauthority from the Department of State to negotiate an executive agreement with\nJapan establishing a mutual waiver of liability, including a waiver of subrogated\nclaims, in connection with joint activities for the exploration of space. Article\n3(2)(a) of the draft agreement provides that \xe2\x80\x9c [e]ach Party agrees to a cross-waiver\n140\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\nof liability pursuant to which each Party waives all claims\xe2\x80\x9d against the other\nParty and its employees as well as \xe2\x80\x9c related entities\xe2\x80\x9d and their employees for\ndamage to property or persons. A \xe2\x80\x9c party\xe2\x80\x9d is defined in relevant part as the\ngovernments of Japan and the United States, their agencies, and institutions estab\xc2\xad\nlished by law for space development. \xe2\x80\x9c Related entities\xe2\x80\x9d are defined so as to\nextend the waiver to contractors and subcontractors (including suppliers), users\nand customers, and their contractors and subcontractors. The cross-waiver applies\nto any claim for damages regardless of the legal basis of the claim, including\ntort and contract. Article 3(2)(d) sets forth a number of exceptions to the waiver:\nNotwithstanding other provisions of this Article, this cross-waiver\nof liability shall not be applicable to . . . claims made by a natural\nperson, his/her estate, survivors, or subrogees for injury or death\nof such natural persons [, except where the subrogee is a Party].\nAgreement Between the Government o f the United States o f America Concerning\nCross-Waiver o f Liability for Cooperation in the Exploration and Use o f Space\nfor Peaceful Purposes (Draft), Article 3(2)(d) (Jan. 13, 1995) (brackets in\n\noriginal). Thus, under the draft agreement, the U.S. Government and its agencies\nwould waive all claims, including subrogated claims, against the Japanese govern\xc2\xad\nment, \xe2\x80\x9c related entities,\xe2\x80\x9d and employees.\nAs you identified in your submission, there are a number of federal statutes\nthat may create rights in the United States to recover from responsible third parties\nthe amount the United States pays an injured employee in benefits or treatment,\nincluding the Medical Care Recovery Act, 42 U.S.C. \xc2\xa72651, the Social Security\nAct, 42 U.S.C. \xc2\xa7 1395y(b)(2)(B)(iii), and the Federal Employees\xe2\x80\x99 Compensation\nAct, 5 U.S.C. \xc2\xa78131. We were advised that it would be very difficult to identify\ndefinitively all sources of subrogated claims.\nNASA submitted a response setting forth the basis for its position that it pos\xc2\xad\nsesses both express and implied statutory authority to enter into broad cross\xc2\xad\nwaivers of liability in its space activities, including waivers of other federal agen\xc2\xad\ncies\xe2\x80\x99 subrogated claims.1 The National Aeronautics and Space Act of 1958, (codi\xc2\xad\nfied as amended at 42 U.S.C. \xc2\xa7\xc2\xa72451-2484) (\xe2\x80\x9c Space Act\xe2\x80\x9d ), establishes NASA\nand defines its functions and the scope of its authority. In its written submission,\nNASA interprets section 203 of the Space Act as vesting NASA with authority\nto waive subrogated claims of other federal agencies. According to NASA, subse\xc2\xad\nquent passage of section 308 of the Space Act, an \xe2\x80\x9c Insurance and Indemnification\nProvision,\xe2\x80\x9d ratified this authority. Finally, NASA argues, a provision of the\n1 Based upon a subsequent meeting with attorneys from NASA and the Department o f State, we understand that\nNASA does not claim authority to waive nonsubrogated claims o f other federal agencies, apart from its practice\nof obtaining express waivers o f claims for damages where the other agencies are entering into agreements with\nNASA for joint activity. Further, NASA does not presently purport to waive any claims o f the 50 states and the\nDistrict of Columbia.\n\n141\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nCommercial Space Launch Act (\xe2\x80\x9c CSLA\xe2\x80\x9d ) expressly granting the Secretary of\nTransportation authority to waive certain claims of the United States and its agen\xc2\xad\ncies, 49 U.S.C. \xc2\xa770112, supports NASA\xe2\x80\x99s interpretation of its authority. See\nMemorandum for Walter Dellinger, Assistant Attorney General, Office of Legal\nCounsel, from Edward A. Frankie, General Counsel, NASA (Feb. 7, 1995)\n(\xe2\x80\x9c NASA Submission\xe2\x80\x9d ).\nIn this memorandum, we first analyze the possible sources of express and\nimplied statutory authority for NASA to waive subrogated claims of other federal\nagencies. We next discuss alternative basis for waiver of federal claims. Finally,\nwe examine sources of authority to waive states\xe2\x80\x99 claims.\nII. Express Statutory Authority\nWe do not read the Space Act to confer expressly upon NASA the authority\nto waive subrogated claims on behalf of other federal agencies.\nNASA relies upon section 203 of the Space Act, 42 U.S.C. \xc2\xa72473, which out\xc2\xad\nlines the functions of NASA, to argue that Congress authorized NASA to enter\ninto executive agreements with foreign governments on any terms it deems appro\xc2\xad\npriate. NASA states that Congress \xe2\x80\x9c sought to create and foster a unique agency\xe2\x80\x9d\nand that due to its \xe2\x80\x9c distinctive mandate, the agency has been provided with\nconcomitantly distinctive authorities\xe2\x80\x9d including authority \xe2\x80\x9c to acquire properties\nand enter into \xe2\x80\x98contracts, leases, cooperative agreements, and other transactions\nas may be necessary in the conduct of its work and on such terms as it may\ndeem appropriate.\' \xe2\x80\x9d NASA Submission at 2, 3 (quoting 42 U.S.C. \xc2\xa7 2473(c)(5)).\nSee also NASA Submission at 12, 23. The most natural reading of this passage\nis that Congress was directing NASA, when it went about its business, to do\nso according to its best judgment, not that Congress was conferring plenary\nauthority upon NASA to take any and all actions, even those that affected the\ninterests of other governmental entities. Moreover, reading the statute in its\nentirety makes clear that Congress did not confer the discretion that NASA claims.\nSection 203(c)(5) provides that NASA may enter into\ncontracts, leases, cooperative agreements, or other transactions as\nmay be necessary in the conduct of its work and on such terms\nas it may deem appropriate, with any agency or instrumentality of\nthe United States, or with any State, Territory, or possession, or\nwith any political subdivision thereof, or with any person, firm,\nassociation, corporation, or educational institution.\n\n142\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\n42 U.S.C. \xc2\xa7 2473(c)(5) (emphasis added). Thus, Congress\xe2\x80\x99s broad grant to NASA\nof discretion to enter into agreements \xe2\x80\x9c on such terms as it may deem appropriate\xe2\x80\x9d\ndoes not extend to agreements with foreign governments.2\nNor does any other provision of the Space Act confer such authority. Only\none provision concerns international agreements. Section 205, 42 U.S.C. \xc2\xa72475,\nprovides that NASA,\nunder the foreign policy guidance of the President, may engage in\na program of international cooperation in work done pursuant to\nthis chapter, and in the peaceful application of the results thereof,\npursuant to agreements made by the President with the advice and\nconsent of the Senate.\nNothing in the text of section 205 itself, an OLC legal opinion interpreting the\nscope of NASA\xe2\x80\x99s authority to engage in international cooperative activity,3 or\nthe President\xe2\x80\x99s signing statement suggests that section 205 should be interpreted\nas conferring upon NASA the authority to enter into executive agreements con\xc2\xad\ntaining government-wide waivers of claims. There are as yet no reported decisions\ninterpreting section 205.\nFinally, Congress amended the Space Act to authorize NASA to provide third\nparty liability insurance to users of NASA\xe2\x80\x99s space vehicles and to indemnify users\nfor third party liability in excess of the insurance coverage. Section 308, 42 U.S.C.\n\xc2\xa7 2458b.4 As discussed below, NASA argues that, in enacting the insurance2 This Office previously had noted that there is \' \xe2\x80\x98some evidence" in the legislative histoiy that another subsection,\n42 U.S.C. \xc2\xa72473(b)(6)(1958), which authorizes NASA to cooperate with other government and public and private\nagencies, was intended to include foreign governments. Letter for Leonard C. Meeker, Legal Adviser, Department\nof State, from William H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel at 3 n.I (Apr. 29, 1969).\nOur review o f that House Report (which accompanied the original 1958 Space Act) found no sim ilar evidence in\nrelation to \xc2\xa7 2473(c)(5). H.R. Rep. No. 85-1770 (1958).\n3 Although section 205 only expressly authorizes NASA to engage in international programs pursuant to the terms\no f treaties entered into by the President, then-Assistant Attorney General Rehnquist concluded that international\ncooperation in space activity could be carried out pursuant to other forms of international agreements. (The issue\nbefore this O ffice was whether NASA had authonty to provide launch services to a foreign government for a domestic\ncommunications satellite system and whether it could do so independently o f COMSAT.) In reaching this conclusion,\nthis Office relied upon President Eisenhower\xe2\x80\x99s signing statement in which he declared that he did not construe\nsection 205 as prescribing the only permissible form o f international cooperation, because \xe2\x80\x9c [t]o construe the section\notherwise would raise substantial constitutional questions.\xe2\x80\x9d Letter for Leonard C. Meeker, Legal A dviser, Department\nof State, from W illiam H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel at 3\xe2\x80\x944 (Apr. 29, 1969).\n4 42 U.S.C. \xc2\xa7 2458b provides in relevant pan:\n(a) Authorization\nThe Administration is authorized on such terms and to the extent it may deem appropriate to provide\nliability insurance for any user o f a space vehicle to compensate all or a portion o f claims by third parties\nfor death, bodily injury, or loss o f o r damage to property resulting from activities carried on in connection\nwith the launch, operations or recovery o f the space vehicle. Appropriations available to the A dministration\nmay be used to acquire such insurance, but such appropriations shall be reimbursed to the m aximum extent\npracticable by the users under reimbursement policies established pursuant to section 2473(c) o f this title.\n(b) Indemnification\nUnder such regulations in conformity with this section as the Administrator shall prescribe taking into\naccount the availability, cost and terms o f liability insurance, any agreement between the Administration\nContinued\n\n143\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nindemnification system, Congress implicitly approved NASA\xe2\x80\x99s practice of entering\ninto cross-waivers of subrogated claims on behalf of other federal agencies. We\ndo not understand NASA to take the position that section 308 itself expressly\nauthorizes NASA to waive such claims, nor can the statute be read to do so.\nIII. Im plied Statutory Authority\nWe understand NASA\xe2\x80\x99s principal argument to be that Congress implicitly\nauthorized NASA to waive subrogated claims on behalf of all federal agencies.\nFirst, according to NASA, the legislative history of section 308 of the Space Act\n(the insurance and indemnification amendment) and 49 U.S.C. \xc2\xa770112 (the insur\xc2\xad\nance provision of the CSLA) demonstrate that Congress was aware of and\napproved of NASA\xe2\x80\x99s longstanding practice of entering into government-wide\ncross-waivers of subrogated claims. Second, NASA argues, the insurance-indemnification regime Congress adopted in section 308 of the Space Act can function\neffectively only if there are government-wide cross-waivers of subrogated claims.\nHowever, neither argument for implied congressional authorization is supported\nby adequate evidence.\nA. Legislative History\nAs a threshold matter, we note that reliance upon legislative history in inter\xc2\xad\npreting a statute is vulnerable to challenge where the statute is unambiguous. City\no f Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994); Connecticut\nNat\xe2\x80\x99l Bank v. Germain, 503 U.S. 249, 253-54 (1992). There is no ambiguity in\nthe Space Act regarding NASA\xe2\x80\x99s authority to waive subrogated claims on behalf\nof the U.S. Government. Granted, there is no express prohibition against NASA\ntaking such action, but where an action as exceptional as waiving the claims of\nother agencies is concerned, silence should ordinarily not be interpreted as ambi\xc2\xad\nguity or authorization. Cf. CSLA, 49 U.S.C. \xc2\xa770112(b)(2) (expressly authorizing\nthe Secretary of Transportation to enter into reciprocal cross-waivers on behalf\nof the United States and certain agencies).\nMoreover, NASA overstates the evidence contained in the legislative history.\nNASA asserts that it had a long history of consistent practice of entering into\ngovernment-wide cross-waivers of subrogated claims, of which Congress was\naware and which it took into account\xe2\x80\x94 and thereby implicitly authorized\xe2\x80\x94 in\nand a user o f a space vehicle may provide that the U nreel States w ill indemnify the user against claims\n(including reasonable expenses of litigation or settlement) by third parties for death, bodily injury, or loss\no f o r dam age to property resulting from activities carried on in connection with the launch, operations\nor recovery o f the space vehicle, but only to the extent that such claims are not compensated by liability\ninsurance o f the user. Provided, That such indemnification may be limited to claims resulting from other\nthan the actual negligence o r willful misconduct o f the user.\n\n144\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\namending the Space Act to grant NASA authority to insure and indemnify users\nof its space vehicles and in adopting the waiver provisions of the CSLA.\nOur review of the legislative history and the executive agreements executed\nby NASA fails to support NASA\xe2\x80\x99s position in two respects. First, it appears that\nNASA\xe2\x80\x99s practice has not been uniform. NASA began to execute cross-waivers\nof liability during the 1970\xe2\x80\x99s as it undertook projects with multiple parties.\nAccording to NASA, although the cross-waiver provisions evolved over time and\ncontained minor variations, NASA had an \xe2\x80\x9c open and widely-endorsed seventeenyear practice of requiring the use of broad no-fault, no-subrogation inter-party\nwaivers of liability in its space launch activities.\xe2\x80\x9d NASA Submission at 1. NASA\nhas provided a number of examples of the cross-waiver provisions. A review of\nthese agreements indicates that the scope of the waiver varies. Most provisions\nbroadly and generally waive \xe2\x80\x9c claims\xe2\x80\x9d ; at least one excludes claims subrogated\nto the government from the scope of the waiver. More important, there is also\nvariability in the scope of the parties bound by the waiver.5 In most cases, the\nagreement waives claims of only NASA, not those of other federal agencies; in\nothers, there is ambiguity as to the scope of the parties bound by the waiver.6\nSecond, the legislative history is inconclusive. NASA emphasizes that it\nexplained its broad and consistent cross-waiver practice to Congress in seeking\nindemnification authority. According to NASA, Congress relied upon NASA\xe2\x80\x99s\npractice of entering into cross-waivers in adopting section 308 of the Space Act\n(granting NASA indemnification and insurance authority) and in subsequently\ngranting the Secretary of Transportation authority to waive claims under the\n5 Evaluating the scope o f the waiver actually raises two distinct issues: whether the waiver encompasses claims\nof other federal agencies as well as NASA, and whether the waiver encompasses subrogated as well as nonsubrogated\nclaims. The Department o f State submitted the narrow question whether NASA has authority to waive subrogated\nclaims o f other federal agencies, and it suggests that a general w aiver o f claims does not necessarily encom pass\na waiver o f subrogated claims. Similarly, NASA has focused on demonstrating that it had a long-standing practice\no f executing broad waivers that included waivers o f subrogated claims. Although we confine our opinion to the\nquestion presented to u s \xe2\x80\x94 whether NASA has authority to waive subrogated claims o f other agencies\xe2\x80\x94 in o u r view,\nthe issue is not whether NASA has authority to waive subrogated (as opposed to nonsubrogated) claims, but whether\nit has authority to waive claims, o f whatever sort, o f another agency. We are aware of no principle that would\ndistinguish between subrogated and nonsubrogated claims for the purpose of analyzing w aiver authority. And we\nare aware of no basis for interpreting a waiver o f \xe2\x80\x9c all claims*\' as not including subrogated claims.\n6 A number o f agreements provide that \xe2\x80\x9c the parties agree to a no-fault, no-subrogation inter-party w aiver of\nliability.\xe2\x80\x9d In most agreements that we reviewed, \xe2\x80\x9c parties\xe2\x80\x9d is defined for the purpose o f the relevant section as\n\xe2\x80\x9c NASA and the U ser.\xe2\x80\x9d However, in some agreements \xe2\x80\x9c parties\xe2\x80\x9d is not a defined term, and the preambles state\nthat the agreements are entered into by \xe2\x80\x9c the United States of America represented by the National Aeronautics\nand Space Adm inistration.\xe2\x80\x9d Arguably then, the \xe2\x80\x9c party\xe2\x80\x9d agreeing to waive the claim is the U.S. Government. This\ninterpretation is undercut by the fact that the provisions continue to read \xe2\x80\x9c [t]hus, if N A SA \xe2\x80\x99s property, while involved\nin STS Operations, is damaged by the User or another user, NASA agrees to be responsible for that Damage and\nagrees not to bring a claim against or sue any user.\xe2\x80\x9d See, e.g.. Agreement for Exchange o f Services Between the\n\nUnited States o f America Represented by the National Aeronautics and Space Administration and Messerschmitt\n- Bolkow - Blohm GMBH (June 12, 1981). We have identified only two cooperative space agreements that unequivo\xc2\xad\ncally waive claims on a government-wide basis. One was executed by the President, the other by the Secretary\nof State. Agreement Between the United Stales o f America and Ukraine on Cooperation in the Exploration and\nUse o f Outer Space fo r Peaceful Purposes (Nov. 22, 1994); Agreement Among the Government o f the United States\n\no f America, Government o f Member States o f the European Space Agency, the Government o f Japan, and the Govern\xc2\xad\nment o f Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization o f the Permanently\nManned Civil Space Station (Sept. 29, 1988).\n\n145\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nCSLA. However, review of congressional reports and hearings reveals that vir\xc2\xad\ntually all references to waiver o f claims were to NASA waiving its claims or were\nsilent as to the scope of the parties bound by the waiver.\nNASA quotes from the Senate Report that accompanied the 1980 NASA\nAuthorization Act (which authorized the insurance-indemnification system).\nNASA Submission at 12 n.18. However, the Senate Report refers to waivers by\nNASA of its claims. In discussing the indemnification provision, the Senate and\nHouse reports state that, because of the reciprocal waiver, indemnification\nwould not normally include persons who contract with NASA for\nlaunch services, since NASA expects to include in its launch agree\xc2\xad\nments a provision under which the person procuring launch services\nagrees that he will not make a claim (and that he will hold NASA\nand other users harmless) for damage to his property or employees\ncaused by NASA, other users or any other person involved. . . .\nIn turn, NASA and other users would promise not to bring a claim\nagainst the user for damage to their property or employees.7\nSimilarly, the General Counsel for NASA, S. Neil Hosenball, testified before the\nHouse that\nWith respect to inter-party liability, i.e., liability between the users\nand NASA, NASA has under existing authority adopted a no-fault,\nno-subrogation approach where NASA and each user agree not to\nbring a claim against the other or any other user for damage to\nits property or injury or death to its employees.8\nNASA also cites to hearings unrelated to section 308 as evidence of congres\xc2\xad\nsional authorization. For example, NASA states that it informed Congress during\nthe Space Shuttle Hearings \xe2\x80\x9c that the proposed Shuttle \xe2\x80\x98no-fault, no-subrogation\ncross-waiver was a continuation of the ELV practice.\xe2\x80\x99 \xe2\x80\x9d NASA Submission at\n9 n.15. However, the quoted material does not appear at or surrounding the section\nof hearings cited by NASA.9 O f perhaps greater significance, a written statement\nsubmitted by NASA\xe2\x80\x99s General Counsel explains in regard to cross-waivers:\nAt this point, I would draw a distinction between what we refer\nto as \xe2\x80\x9c third-party\xe2\x80\x9d liability\xe2\x80\x94 which involves potential liability for\n7 S. Rep. No. 96 -2 0 7 , at 47 (1979), reprinted in 1979 U.S.C.C.A.N. 829, 831. H.R. Rep. No. 96-52, at 225\n(1979).\n\n8 1980 NASA Authorization: Hearings on H.R. 1756 Before the Subcomm. on Space Science and Applications\no f the House Comm, on Science and Technology, 96th Cong., pt. 4, at 1943 (1979) (statement o f S. Neil Hosenball,\nGeneral Counsel, NASA, w ith attached memorandum for the record).\n\n9 Space Shuttle Operational Planning, Policy and Legal Issues: Hearings Before the Subcomm. on Space Science\nand Applications o f the House Comm, on Science and Technology, 96th Cong. 110 (1979).\n\n146\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\ndamage to property or injury to persons not involved in the Shuttle\nuse \xe2\x80\x94 and \xe2\x80\x9c interparty liability\xe2\x80\x9d \xe2\x80\x94 that is, potential property dam\xc2\xad\nage and bodily injury to those flying aboard the Shuttle. With\nrespect to \xe2\x80\x9c interparty\xe2\x80\x9d liability, we have adopted a no-fault\napproach where each party is responsible for insuring (or selfinsuring) its own property or employees. Thus, if a user damages\nthe Shuttle in some way, we agree not to press a claim or sue the\nuser. Similarly, if NASA or a user were to damage another user\xe2\x80\x99s\npayload, the \xe2\x80\x9c damaged\xe2\x80\x9d user would not sue NASA or the other\nuser.\nWe located only one reference to a government-wide waiver of claims. NASA\nsubmitted a written statement to a Senate subcommittee, which states that:\nAll Users of the STS and the U.S. Government will agree not to\nmake a claim or bring a legal action against each other for negligent\nor other acts resulting in injury or death of employees or damage\nor loss to property at the launch or landing site or during\nflight. . . .\nThe U.S. Government will agree to waive its right of action against\nSTS Users for their negligent or other acts resulting in injury or\ndeath to U.S. Government employees or damage to the Orbiter, the\nSTS system or other U.S. Government property at the launch or\nlanding site or during flight.10\nClearly, on its face and considered in isolation, this indicates that NASA was\npurporting to waive claims on behalf of the U.S. Government. When considered\nin context, however, it can be accorded little, if any, weight. First, this testimony\nwas provided in the form of written answers to questions submitted in order to\nexpedite the proceedings; there is no way to know by whom the written answers\nwere ever considered. Second, NASA makes clear that its described policy\nregarding liability issues was \xe2\x80\x9c tentative,\xe2\x80\x9d \xe2\x80\x9c undergoing review in NASA,\xe2\x80\x9d and\nsubject to review and comment by potential users. A tentative policy statement\nsubmitted in writing to a subcommittee of Congress cannot be interpreted as\ncongressional ratification of that policy; otherwise any statement submitted to any\none of the numerous congressional subcommittees would constitute ratification\nof the submission absent explicit rejection by Congress. See McCaughn v. Hershey\nChocolate Co., 283 U.S. 488, 494 (1931) (\xe2\x80\x9c [Individual expressions\xe2\x80\x9d made to\nCommittees of Congress or in discussions on the floor of the Senate, \xe2\x80\x9c are without\n10NASA Authorization for Fiscal Year 1979: Hearings on S. 2527 Before the Subcomm. on Science, Technology,\nand Space o f the Senate Comm, on Commerce, Science, and Transportation, 95th Cong., pt. 1, at 131, 132 (1978)\n( \xe2\x80\x9c NASA Authorization FY 1979\xe2\x80\x9d ).\n\n147\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nweight in the interpretation of a statute.\xe2\x80\x9d ); Kelly v. Robinson, 479 U.S. 36, 51\nn.13 (1986) (refusing to \xe2\x80\x9c accord any significance\xe2\x80\x9d to comments made at hearings\nthat were not made by Members of Congress and were not included in the Official\nHouse and Senate Reports).11 Finally, this single reference to a government-wide\nwaiver must be balanced against the numerous references to a waiver by NASA\nof its claims.12\nThe legislative history of the CSLA also is not as clear as NASA represents.\nIn its submission, NASA states that \xe2\x80\x9c in authorizing the Secretary of Transpor\xc2\xad\ntation to waive all claims on behalf of the U.S. Government, the Congress\nobserved that such broad inter-party waivers of liability \xe2\x80\x98are a standard element\nin all [NASA] launch contracts.\xe2\x80\x99 \xe2\x80\x9d NASA Submission at 21. In fact, this reference\nto the standard element in NASA contracts was made in connection with 12\n11 In its subm ission, NASA continues to d raw from this written subcommittee testimony as follows:\nMore specifically, however, NASA w ent on to address the very issue o f subrogation for the Administration\nin this context by declaring that:\n[T]his risk o f liability to the U se r is lessened by the fact that the U.S. Government is frequently\nsubrogated to the rights o f an injured Government employee under the [Federal Employees Com\xc2\xad\npensation Act] (5 U.S.C. 8131-8132). . . . This will tend to lessen the frequency of actions brought\nby an injured Government employee, [citation omitted]\nThe cross-w aiver was to be an inter-party waiver and, therefore, did not purport to reach the claims of\nindividual persons, w hether military, civil servant or contractor employees. All individuals were treated\nas third parties rather than second parties. What would be waived, as the quote makes clear, would be\nsubrogated claims o f the Government after it had paid for compensation to an employee for Shuttle workrelated injuries.\nNASA Subm ission at 10 & n.16. The sentence that NASA deleted from its quotation, together with the surrounding\nmateria], however, supports a different interpretation. The section in its entirety states*\nSTS Users would continue to be exposed to a risk o f liability if a NASA employee was injured or damaged\nor if a NASA contractor o r one o f its employees was injured o r damaged and recovery was sought by\nthe NASA employee, NASA contractor o r NASA contractor employee.\nThis risk o f liability to the User is lessened by the fact that the U.S. Government is frequently subrogated\nto the rights o f an injured Government employee under the Federal act providing for compensation to\nG overnm ent employees for work injuries. Under this Act, the United States may be entitled to 80% o f\nthe am ount recovered from the negligent User (5 U.S.C. 8131-8132). This will tend to lessen the frequency\no f actions brought by an injured G overnment employee.\nNASA A uthorization FY 1979 at 132.\nW hen read in its entirety, it is clear that the section addresses Shuttle users\' continued exposure to third-party\nclaims from employees and other natural persons. The reference to subrogation is by way of explaining that the\nfrequency o f such suits would tend to be reduced by the fact that the person would retain only 20% o f any recovery.\nThis passage does not inform one way or th e other whether it was contemplated that the government would pursue\nor waive any claim s it may have.\n12ln addition to those discussed above, see also H.R. Rep. No. 9 6 -5 2 , at 225 ( \xe2\x80\x9c Indemnification would only\nbe applicable to claims o f third parties w h o are defined in subsection 308(aXD(3) . . . . It is envisaged that a\nthird party would not norm ally include persons who contract with NASA for launch services, since NASA expects\nto include in its launch agreements a provision under which the person procuring launch services agrees that he\nwill not make a claim . . . for damage . . . . In turn, NASA and other users would promise not to bring a claim\nagainst the user for damage to their property or em ployees.\xe2\x80\x9d ); S. Rep. No. 96-207, at 47 (same), reprinted in 1979\nU .S.C.C.A.N. at 831; International Space Activities, 1979: Hearings Before the Subcomm. on Space Science and\nApplications o f the House Comm, on Science and Technology, 96th Cong. 22 (1979) ( \xe2\x80\x9c The U.S. Government would\nnot be responsible for damage to another country\xe2\x80\x99s materials processing o f scientific equipment on the Shuttle or\nduring other space transportation system operations. W e will include a cross-waiver provision in each Shuttle Launch\nServices A greem ent whereby both NASA an d the user, including foreign countries, agree to a no-fault, no-subrogation\nw aiver o f liability under which NASA and the user will be solely responsible for any damage to its own property\ninvolved in such operations.\xe2\x80\x9d ); see also G erald J. Mossinghoff, Managing Tort Liability Risks in the Era o f the\nSpace Shuttle, 1 J. Space L. 121, 124 (1979) ( \xe2\x80\x9c NASA has under existing authority adopted a no-fault, no-subrogation\napproach w hereby NASA and each user agree not to bring a claim against the other or any other user for dam age.\xe2\x80\x9d ).\n\n148\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\nsubparagraph (c), which requires so-called flow-down clauses binding users and\ncontractors to the waiver. Two paragraphs later, the report addresses the subpara\xc2\xad\ngraph that authorizes the Secretary of Transportation to enter into governmentwide waivers; the report makes no reference to NASA\xe2\x80\x99s practices. S. Rep. No.\n100-593, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 5525, 5538. Again, where\nthere is reference to the scope of the parties bound by the reciprocal waiver of\nclaims, it is to NASA\xe2\x80\x99s waiver of its claims.13\nNASA further states that the Department of Justice previously had reviewed\nand approved the waiver authority NASA now asserts. Even if this were so, it\nwould not, of course, validate an otherwise invalid practice. According to NASA,\nin reviewing the proposed insurance-indemnification amendment, the Department\nof Justice \xe2\x80\x9c raised no objection to the waiver of U.S. Government claims based\non its understanding of the planned broad no-fault, no-subrogation cross-waiver.\xe2\x80\x9d\nNASA Submission at 11. The Department of Justice letter to which NASA refers,\nhowever, states that the department\xe2\x80\x99s conclusion was based on a memorandum\nprepared by NASA;14 that memorandum refers only to waivers of claims that\nNASA may have:\nWith respect to inter-party liability, i.e., liability between the users\nand NASA, NASA is able under present authority to adopt a no\xc2\xad\nfault, no-subrogation approach where NASA and each user agree\nnot to bring a claim against the other or any other user for damage\nto its property or injury or death to its employees.15\nFinally, NASA argues that its practice of waiving \xe2\x80\x9c claims\xe2\x80\x9d generally should\nbe broadly construed to include subrogated claims, and further points to its ref\xc2\xad\nerences in congressional submissions to its waiver of subrogated claims to argue\nthat, since there is no vehicle by which NASA can become a subrogee, its waiver\n13 H.R. 3765, The Commercial Space Launch Act Amendments: Hearings Before the Subcomm. on Space Science\nand Applications o f the House Comm, on Science, Space, and Technology, 100th Cong. 12 (1988) ( \xe2\x80\x9c NASA\xe2\x80\x99s standard\nlaunch services agreement, or LSA, evolved over a long period o f time . . . . Perhaps the area which has been\nthe most controversial and difficult to work out is the sharing o f liability risks between NASA and its customers. . . .\nWith regard to damage to persons and property, NASA decided that, in order to facilitate the use of the Space\nShuttle and to simplify the allocation o f risks, a cross-waiver policy would be put in place as a standard LSA\nprovision. Under this policy, NASA and all Shuttle users agree to a no-fault, no-subrogation, inter-party waiver\nof liability. . . .\xe2\x80\x9d )\n14 Letter for the Honorable James T. McIntyre, Jr., Director, Office o f Management and Budget, from Patricia\nM. Wald, Assistant Attorney General, Office o f Legislative Affairs (Dec. 1978) (Attachment 8 to NASA Submission).\n15 NASA Memorandum for the Record, \xe2\x80\x9c Proposed Section 308 o f the National Aeronautics and Space Act o f\n1958: \xe2\x80\x98Indemnification and Insurance\xe2\x80\x99 \xe2\x80\x9d (Dec. 5, 1978).\nNASA also refers to a 1987 letter from NASA to OLC, in which NASA refers to OLC\xe2\x80\x99s review of \xe2\x80\x9c a proposed\nSpace Station inter-party waiver clause.\xe2\x80\x9d In its current submission, NASA states that the agreements of interest\nto OLC \xe2\x80\x9c each included an express waiver o f subrogated claim s." NASA cites as a typical example an agreement\ncontaining a provision whereby \xe2\x80\x9c \xe2\x80\x98[T]he Parties hereto agree to a no-fault, no subrogation, inter-party w aiver of\nliability.\xe2\x80\x99 \xe2\x80\x9d The attachment to which NASA refers does not appear to contain the quoted agreement. Thus we are\nunable to determine w hether the waiver was restricted to NASA or whether NASA was purporting to waive claims\non behalf o f other agencies. NASA Submission at 24-25, Attachment 23 (Letter for John P. Giraudo, AttomeyAdvisor, O ffice o f Legal Counsel, from Edward A. Frankie, Deputy General Counsel, NASA.)\n\n149\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nof subrogated claims must be understood as a waiver of other agencies\xe2\x80\x99 claims.\nEven assuming the truth of the factual predicate \xe2\x80\x94 that NASA could never be\na subrogee \xe2\x80\x94 we do not find this dispositive. First, the vast majority of the discus\xc2\xad\nsion in Congress did not refer specifically to subrogated claims. Second, even\nassuming that Congress was aware that the waivers encompassed subrogated\nclaims, in light of the fact that NASA and the other party to the agreement\n\xe2\x80\x9c flowed down\xe2\x80\x9d the waiver to users and contractors, any reference to subrogated\nclaims could be understood as applying to insurers of the users and contractors.16\nFinally, and most important, this connection is simply too attenuated and subtle\nto constitute the basis for finding congressional authorization for such an excep\xc2\xad\ntional act as one agency waiving claims of other agencies.\nB. Logic o f Insurance-Indemnification System\nNASA argues that, in amending the Space Act to authorize NASA to provide\ninsurance and indemnification, Congress must be interpreted as having either rati\xc2\xad\nfied or granted NASA authority to execute government-wide cross-waivers of sub\xc2\xad\nrogated claims because the effectiveness of the insurance-indemnification regime\ndepended upon such waivers. Section 308 of the Space Act authorizes NASA\nto provide liability insurance for users of a space vehicle to compensate them\nfor claims by third parties. (In practice, with the aid of NASA, users were able\nto obtain such third-party liability insurance from private insurers.) In addition,\nCongress authorized NASA to indemnify users for third-party loss above the\namount of the insurance.17\nThus, according to NASA, the scheme consisted of three parts: the existing\ninter-party cross-waiver of claims; insurance covering third-party liability \xe2\x80\x94 which\nNASA states could only be obtained at a reasonable rate because it had removed\nthe largest class of claims, those between the parties; and U.S. indemnification\nof catastrophic loss above that covered by insurance\xe2\x80\x94 which NASA states could\nbe justified in light of the broad cross-waiver. NASA argues that the indemnifica\xc2\xad\ntion authority is \xe2\x80\x9c inextricably linked to the cross-waiver described to the Congress\nand implemented in accordance with policies and procedures established under\nthe agency\xe2\x80\x99s broad discretionary authorities provided in . . . 42 U.S.C.\n\xc2\xa7 2473(c).\xe2\x80\x9d NASA Submission at 12.\nAs we understand the three-part regime, however, the government-wide cross\xc2\xad\nwaiver of subrogated claims, however sensible, is not \xe2\x80\x9c inextricably linked\xe2\x80\x9d with\nthe insurance-indemnification regime adopted in section 308. Under the terms of\ni6See NASA A uthorization FY 1979 at 132. ( \xe2\x80\x9c This risk o f liability [to the User for damage to property or\nem ployees o f the U nited States] may also be mitigated by action taken as a result of a NASA study now under\nway on the feasibility o f including a provision in N A SA \'s contracts that would require NASA contractors to obtain\ninsurance w ithout the right o f subrogation, which would provide insurance payable to themselves and their employees\nfor dam age and injury caused by other Users in the course o f STS operations.\xe2\x80\x9d ).\n17 See supra note 4.\n\n150\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\nat least the draft agreement with Japan and the Intergovernmental Agreement\namong the United States, Member States of the European Space Agency, Japan,\nand Canada,18 the cross-waivers do not extend to extinguish claims brought by\n\xe2\x80\x9c natural persons.\xe2\x80\x9d And at least under the terms of the Medical Care Recovery\nAct and the application of FECA, the U.S. Government would recover only the\namount it had expended in providing medical or other support to the injured per\xc2\xad\nson. Thus, unless the injured person assigned his or her entire cause of action\nto the U.S. Government, in many, if not most cases, the amount recovered by\nthe United States in pursuing subrogated claims is likely to be quite limited in\ncomparison to that potentially obtained by the individual. Since, as NASA\nexplains, the cross-waiver does not purport to reach the claims of individual per\xc2\xad\nsons and all individuals would be treated as third parties, it is difficult to see\nthat waiver of inter-party claims would affect third party insurance rates or indem\xc2\xad\nnification costs. Moreover, as NASA emphasizes, NASA contractually extin\xc2\xad\nguishes the bulk of nonsubrogated claims of other federal agencies that are either\nusers or contractors by executing mutual waivers of claims and \xe2\x80\x9c flowing-down\xe2\x80\x9d\nthe waiver to subcontractors and customers. Finally, according to NASA, the real\nfinancial exposure was to the risk that the launch vehicle and other payloads would\nbe destroyed. This is precisely the exposure that is eliminated by the waivers\namong and between the users and NASA. And this presumably is what made\nthe insurance premium affordable.\nEven if we are incorrect in our assumptions regarding the actual operation of\nthe insurance-indemnification regime, the link between enactment of section 308\nof the Space Act .and the waiver authority NASA claims\xe2\x80\x94 that insurance pre\xc2\xad\nmiums and indemnification would be more affordable \xe2\x80\x94 is not sufficiently direct\nor express to constitute congressional authorization.\nFinally, NASA argues that the waiver provision contained in the CSLA is based\nupon and must be read to reaffirm NASA\xe2\x80\x99s government-wide cross-waivers of\nsubrogated claims. (As stated above, the CSLA expressly authorizes the Secretary\nof Transportation to enter into reciprocal waivers \xe2\x80\x9c for the Government, executive\nagencies of the Government involved in launch services, and contractors and sub\xc2\xad\ncontractors involved in launch services.\xe2\x80\x9d 49 U.S.C. \xc2\xa770112(b)(2).) Rather, if any\xc2\xad\nthing, the CSLA waiver provision undercuts NASA\xe2\x80\x99s argument that the Space\nAct provides the necessary authorization; the waiver provision of the CSLA dem\xc2\xad\nonstrates what Congress does when it wishes to authorize government-wide\nwaivers. Moreover, the waiver authority contained in the CSLA is more narrow\nthan that asserted by NASA under the Space Act; it extends only to those agencies\ninvolved in launch services. On its face, it would not apply to agencies that are\n18 Agreement Among the Government o f the United States o f America, Government o f Member States o f the Euro\xc2\xad\npean Space Agency, the Government o f Japan, and the Government o f Canada on Cooperation in the Detailed\nDesign, Development, Operation, and Utilization o f the Permanently Manned Civil Space Station (Sept. 29, 1988).\n\n151\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsubrogated to claims or that have direct claims to reimbursement by virtue of\nproviding care or resources to injured persons.\nIV. President\xe2\x80\x99s Constitutional Authority\nWe have concluded that the President may enter into international agreements\nproviding for the waiver of subrogated claims of federal agencies in return for\na reciprocal waiver from the other State. This conclusion, however, is subject\nto the following challenges and limitations.\nThe President\xe2\x80\x99s authority to enter into international agreements containing such\na waiver derives principally from his constitutional authority to conduct foreign\naffairs. The Constitution has long been interpreted to grant the President plenary\nauthority to represent the interests of the United States in dealings with foreign\nStates, subject only to limits specifically set forth in the Constitution or to such\nstatutory limitations that the Constitution permits Congress to impose by exercise\nof its enumerated powers.19 As part of this authority, the President may enter\ninto \xe2\x80\x9c sole\xe2\x80\x9d executive agreements \xe2\x80\x94 international agreements based on the Presi\xc2\xad\ndent\xe2\x80\x99s own constitutional powers.20\nAlthough the President\xe2\x80\x99s authority to enter into sole executive agreements is\nwell established, the precise limitations that may exist on the proper scope of\nthose agreements is far from settled. As one commentator has noted,\n\xe2\x80\x9c [c]onstitutional issues and controversies have swirled about executive agreements\nconcluded by the President wholly on his own authority. . . . Periodically, Sen\xc2\xad\n19 M emorandum for the A ttorney General, from Charles J. Cooper, Assistant Attorney General, Office o f Legal\nC ounsel, Re: Legal Authority fo r Recent Covert Arms Transfers to Iran (Dec. 17, 1986); Letter for the Honorable\nDavid L. Boren, Chairman, Senate Select Com m ittee on Intelligence, U nited States Senate, from John R. Bolton,\nA ssistant Attorney G eneral, Office of Legislative Affairs (Nov. 13, 1987). See generally United States v. Curtiss Wright Export Corp., 299 U.S. 304, 319-20 (1936) (Power o f the President as \xe2\x80\x9c the sole organ o f the federal govern\xc2\xad\nment in the field o f international relations . . . does not require as a basis for its exercise an act o f Congress.\xe2\x80\x9d )\nIn Curtiss-Wright, the Court drew a distinction between the President\'s relatively limited inherent powers to act\nin the dom estic sphere and his far-reaching discretion to act on his own authority in managing the external relations\no f the United States. W aiving claims of, fo r example, the Departments o f Labor or Health and Human Services\nto recover expenses incurred in providing resources to injured workers implicates domestic as well as foreign affairs.\nHowever, as a leading commentator notes in discussing limits to treaty-making power, \xe2\x80\x9c [mjatters o f international\nconcern are not confined to matters exclusively concerned with foreign relations. Usually, matters o f international\nconcern have both international and domestic effects, and the existence o f the latter does not remove a matter from\ninternational concern.\xe2\x80\x9d Louis Henkin, Foreign Affairs and the Constitution 1S3 (1972) (quoting Restatement of the\nLaw o f U nited States Foreign Relations \xc2\xa7117(1)). Moreover, to the degree domestic interests are implicated, they\narise in areas in which the President possesses considerable authority, as discussed below.\n20 United States v. Belmont, 301 U.S. 3 2 4 (1937); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore\nv. Regan, 453 U.S. 654 (1981); Restatement (Third) o f The Foreign Relations Law o f the United States \xc2\xa7303(4)\n(1987) ( \xe2\x80\x9c R estatem ent\xe2\x80\x9d ) ( \xe2\x80\x9c Subject to [the prohibitions or limitations in the Constitution applicable to the exercise\no f authority by the U nited States] the President, on his own authority, may make an international agreement dealing\nw ith any m atter that falls w ithin his independent powers under the Constitution.\xe2\x80\x9d ); see also State Department Proce\xc2\xad\ndures on Treaties and O ther International Agreements, C ircular 175 (Oct. 25, 1974) ( \xe2\x80\x9c Circular 175\xe2\x80\x9d ), reprinted\nin 1 United States Foreign Relations Law: Documents and Sources 201 (Michael J. Glennon & Thomas M. Franck\neds., 1980).\nW e note that government-wide waivers o f subrogated claim s could be implemented through treaties or congres\xc2\xad\nsional-executive agreements. W e focus h ere on sole executive agreements, based on our understanding that NASA\nand the State Department seek advice on th e availability o f alternatives to congressional authorization.\n\n152\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\nators (in particular) have objected to some agreements, and the Bricker Amend\xc2\xad\nment sought to curtail or regulate them, but the power to make them remains\nas vast and its constitutional foundations and limits as uncertain as ever.\xe2\x80\x9d 21\nThe leading cases on sole executive agreements support\xe2\x80\x94 though not unequivo\xc2\xad\ncally\xe2\x80\x94 the President\xe2\x80\x99s authority to enter into agreements disposing of government\nclaims. In United States v. Belmont, 301 U.S. 324 (1937), and United States v.\nPink, 315 U.S. 203 (1942), the Court upheld the validity of the Litvinov Assign\xc2\xad\nment, by which, through exchange of diplomatic correspondence, the Soviet Union\nassigned to the United States its claims against U.S. nationals. The Litvinov\nAssignment was part of an overall settlement of claims between the Soviet Union,\nthe United States, and their nationals, undertaken to clear the way for United\nStates recognition of the Soviet government.\nThe Belmont and Pink opinions establish the President\xe2\x80\x99s broad authority to enter\ninto sole executive agreements that deal with international claims. However, the\nLitvinov Assignment was executed pursuant to the President\xe2\x80\x99s recognition of the\nSoviet Union, and the opinions rely in part on that fact. Accordingly, it could\nbe argued that they support only the limited proposition that the President may\nenter into sole executive agreements that accompany the exercise of his core\npower to recognize foreign governments. We reject this narrow reading. The opin\xc2\xad\nions impose no such restriction, but rather, find authority for the Assignment in\nthe President\xe2\x80\x99s authority as \xe2\x80\x9c sole organ\xe2\x80\x9d of the federal government in the field\nof international relations 22 Even so, Belmont and Pink are not dispositive because,\nalthough the Litvinov Assignment anticipated an overall settlement of claims\nbetween the two governments, the Assignment itself appears only to have involved\nthe assignment of Soviet claims to the United States \xe2\x80\x94 not the release by the\nUnited States of its claims.\n21 Henkin, Foreign Affairs and the Constitution at 177 (footnotes omitted). See also Restatement \xc2\xa7303, reporters\xe2\x80\x99\nnote 11 ( \xe2\x80\x9c Efforts to define the constitutional limits on the President\xe2\x80\x99s authority to make sole executive agreements\n. . . have been resisted by the Executive Branch and have not gained wide acceptance in C ongress."); Peter M.\nShane & Harold H. Bniff, The Law o f Presidential Power 543 (1988) (noting the lack of any \xe2\x80\x9c principled line\xe2\x80\x9d\nto identify the limit o f constitutional sole executive agreements: \xe2\x80\x9c The Supreme Court has not yet held any executive\nagreement ultra vires for lack o f Senate consent, nor has it given other guidelines that might define the President\xe2\x80\x99s\npower to act alone. M embers o f the Senate have periodically charged presidential usurpation, but have not articulated\nplausible limits to presidential power. . . . Presidential practice, too, has not reflected any principle o f lim itation.\'\xe2\x80\x99).\n22 See Department o f State Legal Adviser\xe2\x80\x99s Reply to Senate Office o f Legislative Counsel Memorandum on Certain\nMiddle East Agreements (Oct. 6, 1975), reprinted in 1 United States Foreign Relations Law: Documents and Sources\n295 (Michael J. Glennon & Thomas M. Franck eds., 1980) (rejecting the argument that Belmont and Pink should\nbe nanow ly interpreted as only authorizing agreements pursuant to recognition of foreign states); Henkin, Foreign\nAffairs and the Constitution at 178-79 ( \xe2\x80\x9c Sutherland in fact seemed to find authority for the Litvinov Agreement\nnot in the President\xe2\x80\x99s exclusive control o f recognition policy but in his authority as \xe2\x80\x98sole organ,\' his \xe2\x80\x98foreign affairs\npower\xe2\x80\x99 which supports not only recognition but much if not most other foreign policy.\xe2\x80\x9d ).\nAt the same time. Professor Henkin rejects a fully expansive reading. \xe2\x80\x9c There have indeed been suggestions,\nclaiming support in Belmont, that the President is constitutionally free to make any agreement on any matter involving\nour relations with another country. . . . As a matter o f constitutional construction, however, that view is unaccept\xc2\xad\nable, for it would wholly remove the \xe2\x80\x98check\xe2\x80\x99 o f Senate consent which the Framers struggled and compromised\nto write into the Constitution. One is compelled to conclude that there are agreements which the President can\nmake on his sole authority and others which he can make only with the consent of the Senate, but neither Justice\nSutherland nor any one else has told us which are w hich." Id. at 179.\n\n153\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIn Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court upheld the Presi\xc2\xad\ndent\xe2\x80\x99s authority to suspend individuals\xe2\x80\x99 claims pursuant to an executive order that,\namong other things, established the U.S.-Iran Claims Tribunal. In addition to\nrelying upon the \xe2\x80\x9c general tenor\xe2\x80\x9d of the International Emergency Economic\nPowers Act, the Hostage Act, and the International Claims Settlement Act23\n(which the Court found implicitly to authorize the challenged executive action),\nthe Court emphasized the U.S. Government\xe2\x80\x99s longstanding practice of exercising\nits sovereign authority to settle claims of its nationals against foreign governments\nand noted that those settlements frequently occur through executive agreements 24\nIf the President has authority to dispose of claims of individuals in furtherance\nof U.S. foreign policy objectives, it would seem reasonable to conclude that he\nmust have authority to waive claims of federal agencies. Dames & Moore, how\xc2\xad\never, did not so squarely raise separation of power concerns. Here, arguably, the\nPresident would be encroaching on Congress\xe2\x80\x99s control over the federal fisc by\ndeclining to recover monies otherwise subject to claim by the United States.25\nAlthough this argument is not without force, we are not persuaded by it in its\ncurrent context, and we conclude that there would be no impermissible encroach\xc2\xad\nment upon congressional authority. First, this is not an instance of the executive\nbranch bestowing a unilateral gift. The waivers are mutual. The United States\nis getting what it gives. More important, the President\xe2\x80\x99s action must be considered\nagainst the backdrop of the statutes governing NASA and its operations. By\nenacting the insurance-indemnification scheme, Congress expressed its intent to\ncommit very substantial resources to support NASA\xe2\x80\x99s activities. In contrast to\nthe indemnification system of the CSLA, which caps the government\xe2\x80\x99s indem\xc2\xad\nnification at a certain amount, Congress granted NASA unlimited indemnification\nauthority. In addition, Congress endorsed a program of international cooperation,\nplaced NASA under the foreign policy guidance of the President, and granted\nthe President the authority to enter into international agreements to promote inter\xc2\xad\nest) U.S.C. \xc2\xa7 1701; 22 U.S.C. \xc2\xa7 1732; 2 2 U.S.C. \xc2\xa7\xc2\xa7 1621-1645. respectively.\n34See also Ozanic v. United States, 188 F.2d 228, 231 (2d Cir. 1951) (Hand, J.) (\xe2\x80\x9c The constitutional power\no f the President extends to the settlement o f mutual claims between a foreign government and the United States,\nat least when it is an incident to the recognition o f that government; and it would be unreasonable to circumscribe\nit to such controversies. The continued m utual amity between the nation and other powers again and again depends\nupon a satisfactory comprom ise of mutual claims; the necessary pow er to make such compromises has existed from\nthe earliest tim es and [has] been exercised by the foreign offices o f all civilized nations.\'*); Harold Hongju Koh,\nWhy the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L J . 1255\n(1988) (noting the great deference accorded to presidential authority by the model of statutory analysis adopted\nin Dames & Moore).\n25 For exam ple, the Constitution dictates that only Congress can appropriate money. U.S. Const, an. 1, \xc2\xa79 , cl.\n7. And courts have suggested that the President may not act alone to dispose o f property under Article IV. See\nEdwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert, denied, 436 U.S. 907 (1978). We do not find these restrictions\ndispositive because appropriations are not properly equated with waivers o f claims, and the property referenced\nin Article IV o f the Constitution does not appear to encom pass inchoate claims for damages. Id. at 1059 (reviewing\ndebates o f C onstitutional Convention and state ratifying conventions to demonstrate that the property clause was\nintended to delineate the role played by th e central government in the disposition o f Western lands).\n\n154\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space A ctivity\n\nnational cooperation.26 Finally, Congress has at least implicitly approved of the\nlong-standing practice of NASA and other federal agencies that are using NASA\xe2\x80\x99s\nservices waiving their own claims for damages, which likely represents the\ngreatest risk of financial exposure to the United States.27\nTaken together, we believe that this statutory framework supports the conclusion\nthat the President would not encroach upon congressional authority by entering\ninto a mutual waiver of claims with a foreign State. Moreover, waiving claims\nfor damages coincides with two other sources of Presidential power: the Presi\xc2\xad\ndent\xe2\x80\x99s prosecutorial discretion and his authority as chief administrator of the\nexecutive branch.28 Conceptually, a waiver operates similarly to a decision not\nto pursue a certain class of claims \xe2\x80\x94 an executive decision that is generally within\nthe prerogative of the President.29\nWe further conclude that the President may delegate this authority to an appro\xc2\xad\npriate agency head. The President is generally authorized under 3 U.S.C. \xc2\xa7301\nto delegate to heads of executive agencies \xe2\x80\x9c any function which is vested in the\nPresident by law.\xe2\x80\x99\xe2\x80\x99 This Office has interpreted \xc2\xa7301 as conferring a very broad\ngrant of delegation authority. However, the legislative history indicates that \xc2\xa7301\nwas intended only to authorize the delegation of functions vested in the President\nby statute.30\n26 42 U.S.C. \xc2\xa72475. A lthough the statute refers only to treaties. President Eisenhower and this Office interpreted\nthe statute as authorizing other forms o f international executive agreements. See supra note 3.\n27 See supra note 12.\n28 See Myers v. United States, 272 U.S. 52 (1926); Heckler v. Chaney, 470 U.S. 821 (1985); The Jewels o f the\nPrincess o f Orange, 2 O p. Att\xe2\x80\x99y Gen. 482, 491-92 (1831) ( \xe2\x80\x9c Upon the whole, I consider the district attorney as\nunder the control and direction o f the President . . . and that it is within the legitimate power o f the President\nto direct him to institute o r to discontinue a pending suit . . .\nShane & Bruff, The Law o f Presidential Power\nat 327 (quoting Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 44 (1987) ( \xe2\x80\x9c The President retains\nthe constitutional power to direct the officer to take particular actions within his or her discretion or to refrain\nfrom acting when the officer has discretion not to a c t/\').\n29 We n o te th a t, like treaties, an executive agreement authorizing the waiver o f claims would be superseded by\nsubsequent contrary congressional action. Furthermore, unlike treaties, a sole executive agreement may not be effec\xc2\xad\ntive in the face o f prior inconsistent legislation. Thus, if there is an extant statute requiring an agency to bring\nsuit to recover certain costs, an executive agreement to the contrary may have no effect. According to Henkin,\nthe Supreme Court has expressly declined to consider this issue. Henkin, Foreign Affairs and the Constitution at\n186. See United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953) (holding that an executive agreement\nwill not be given effect as against an earlier act o f Congress), a ffd , 348 U.S. 296 (1955); Circular 175 at 205\n(\xe2\x80\x9c The President may conclude an international agreement on any subject within his constitutional authority so long\nas the agreement is not inconsistent with legislation enacted by the Congress in the exercise o f its constitutional\nauthority/\'); Restatement \xc2\xa7303 cmt. j (status o f sole executive agreements in relation to earlier congressional legisla\xc2\xad\ntion has not been authoritatively determined); Oliver J. Lissitzyn, The Legal Status o f Executive Agreements on\nAir Transportation, 17 J. A ir L. & Com. 436, 444 (1950) ( \xe2\x80\x9c [W]hile a treaty, if self-executing, can supersede a\nprior inconsistent statute, it is very doubtful whether an executive agreement, in the absence of appropriate legislation,\nwill be given similar effect.\xe2\x80\x9d ); see also Memorandum for the Honorable David Stockman, Director, Office of\nManagement and Budget, from L any L. Simms, Acting Assistant Attorney General, Office of Legal Counsel, Re:\nProposed Executive Order on Federal Regulation at 3 (Feb. 12, 1981) ( \xe2\x80\x9c [TJhe President\xe2\x80\x99s exercise o f supervisory\npowers must conform to legislation enacted by Congress. In issuing directives to govern the Executive Branch,\nthe President may not, as a general proposition, require o r permit agencies to transgress boundaries set by Congress.\xe2\x80\x9d\n(footnote omitted)).\n30The House Report o f the precursor statute to \xc2\xa7301 states that \xe2\x80\x9c it should be understood that the functions,\nas set out in this bill, refer to those vested in the President by statutory authority, rather than those reposing in\nthe President by virtue o f his authority under the Constitution o f the United States.\xe2\x80\x9d H.R. Rep. No. 81-1139, at\nContinued\n\n155\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nThe scope and source of the President\xe2\x80\x99s authority to delegate responsibility con\xc2\xad\nferred upon him by the Constitution is less clear. We have recognized that the\nPresident possesses \xe2\x80\x9c inherent\xe2\x80\x9d authority to delegate, and that this is not restricted\nto delegation of duties conferred by statute.31 In Myers v. United States, 272 U.S.\n52, 117 (1926), the Court declared the general principle sustaining the delegation\nby the President of the exercise of his executive authority:\nThe vesting of the executive power in the President was essentially\na grant of the power to execute the laws. But the President alone\nand unaided could not execute the laws. He must execute them by\nthe assistance of subordinates.\nWe have endorsed the statement of the exception to this general rule expressed\nby one commentator that\nWhere . . . from the nature of the case, or by express constitutional\nor statutory declaration, the personal, individual judgment of the\nPresident is required to be exercised, the duty may not be trans\xc2\xad\nferred by the President to anyone else.32\nThus, this Office has concluded that the President may not delegate his authority\nto undertake specific functions that are expressly vested in him by the Constitu\xc2\xad\ntion, such as to grant a pardon, or to transmit and proclaim the ratification of\na treaty.33 And we have suggested that there may be greater limits on his delega\xc2\xad\ntion authority in the area of foreign affairs. For instance, we have advised that\nit would be \xe2\x80\x9c safer\xe2\x80\x9d to conclude that the President may not delegate his authority\nto terminate international trade agreements, and to carry out certain duties relating\nto military assistance, defense programs, and foreign aid. This limitation is based\non the view that these were \xe2\x80\x9c basic decisions relating to international relations\nand involve[d] far-reaching policy considerations.\xe2\x80\x9d 34 The waivers at issue here,\nin contrast, do not implicate, at least in their individual application, far-reaching\n2 (1949). In addition, there are numerous references to the need to provide for delegation of statutory duties in\nother legislative history. S. Rep. No. 8 1 - 1867, (1950), reprinted in 1950 U.S.C.C.A.N. 2931.\n31 \xe2\x80\x9c In none o f the Reports o f the Congress [concerning 3 U.S.C. \xc2\xa7 \xc2\xa7 301-303] is there any definition o f the inherent\nright o f the President to delegate the performance o f functions vested in him, but both Reports, as well as the\nAct, recognize that the President has such an inherent right*\xe2\x80\x99 to the extent \xe2\x80\x9c reasonably necessary in executing the\nexpress powers granted to him under the Constitution and Laws of the United States for the proper and efficient\nadm inistration o f the executive branch o f governm ent.\xe2\x80\x9d Memorandum from Office o f Legal Counsel, Re: President\xe2\x80\x99s\nAuthority to Delegate Functions at 3 (Jan. 24, 1980) ( \xe2\x80\x9c Generally, it may be said that the inherent rights or implied\npow ers o f the President are ail those vast powers which are reasonably necessary in executing the express powers\ngranted to him under the Constitution and Laws o f the United States for the proper and efficient administration\no f the executive branch o f government.\xe2\x80\x9d ).\n32 M emorandum , Re: President\xe2\x80\x99s Authority to Delegate Functions (Jan. 24, 1980) (quoting Willoughby, Constitu\xc2\xad\ntion, Vol. II, p. 1160).\n33 M emorandum from the Office of Legal Counsel, Re: Delegation o f Presidential Functions, (Sept. 1, 1955).\n34 Id. at 7.\n\n156\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\npolicy considerations. The President would exercise his individual judgment that\nmutual, government-wide waivers under these particular circumstances are in the\npublic interest; he would delegate merely the application of that judgment to par\xc2\xad\nticular agreements. Accordingly, we conclude that the President may delegate his\nauthority to enter into mutual waivers of claims for damages that arise pursuant\nto cooperative space activity.\nV. Authority to Waive States\xe2\x80\x99 Claims\nYou have also asked us to advise whether the federal government could bind\nthe fifty states and the District of Columbia to a waiver of state claims. NASA\ncorrectly notes that under the terms of its agreements, it does not purport to waive\nstates\xe2\x80\x99 claims. However, when federal states enter into international agreements,\nthey are generally viewed as binding their constituent units as well as the central\ngovernment.35 Moreover, absent an express agreement to the contrary, the central\ngovernment generally is responsible for the failure of the constituent units to fulfil\ntheir legal obligations.36\n33 Memorandum for W alter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Conrad K.\nHarper, Legal Adviser, Department o f State (May 5, 1995).\n36 Ivan Bernier, International Legal Aspects o f Federalism 88 (1973) (As a matter o f international law, \xe2\x80\x9c there\ncan be no doubt that a federal state is responsible for the conduct o f its member states.\xe2\x80\x99*). According to the Restate*\nment, federal states sometimes have sought special provisions in international agreements to take account of restric\xc2\xad\ntions upon the power o f the central government to deal with certain matters by international agreement. \xe2\x80\x9c Som e\nproposed \xe2\x80\x98federal-state clauses\xe2\x80\x99 would permit a federal state to leave implementation to its constituent units, incurring\nno violation of international obligation if implementation fails. Even without a special provision, a federal state\nmay leave implementation o f its international obligations to its constituent units, but the central government remains\nresponsible if the obligation is not fulfilled.\xe2\x80\x9d Restatement \xc2\xa7 302, reporters\xe2\x80\x99 note 4.\nWe note that the State Department construed the \xe2\x80\x9c flow-down\xe2\x80\x9d clause o f the Intergovernmental Agreement Among\nthe United States, Member States o f the European Space Agency, Japan, and Canada (w hich obligates each signatory\nto extend the cross-waiver o f liability to its ow n related entities) as follows:\nEach Partner may decide how it mtends to implement this obligation, for example, by including the crosswaiver in its contracts with related entities, by enacting legislation, o r by any other appropriate means.\nHowever, if a Partner had reason to believe that the cross-waiver would not be enforceable under its laws,\nthat Partner should take reasonable steps to enforce the cross-waiver by alternative means, such as by\nlegislation. The Partner\xe2\x80\x99s obligation under this paragraph is to take the necessary and appropriate steps\nto achieve the result; however, it is not an obligation to guarantee the result. Thus, it was recognized\nthat, under extraordinary circumstances, a Partner\xe2\x80\x99s domestic court might not enforce the cross-waiver,\nand that Partner would not be responsible for the resulting liability on the theory that it had breached\nan obligation. At the same time, a Partner could be expected to take certain steps to minimize the likelihood\nof such cases.\nMemorandum o f Law from Alan J. Kreczko, Deputy Legal Adviser, Department of State, Re: Circular 175: Request\n\nfor Authority to Conclude an Intergovernmental Agreement with Member States o f the European Space Agency,\nJapan, and Canada and Implementing Memoranda o f Understanding Between NASA and the European Space Agency,\nCanada\xe2\x80\x99s Ministry o f State for Science and Technology, and the Government o f Japan on Cooperation in the Detailed\nDesign, Development, Operation, and Utilization o f the Permanently Manned Civil Space Station at 15-16.\nIt is not clear from the State Department\xe2\x80\x99s memorandum what the basis was for its interpretation and conclusion\n(e.g., a subsequently deleted provision) and w hether the interpretation applied to the cross-waiver generally or only\nthe \xe2\x80\x9c flow-down\xe2\x80\x9d obligation. If it did not apply to the cross-waivers between the various governments, and absent\nany other provision, then if a U.S. state successfully brought suit against Japan for damages sustained from activities\nundertaken pursuant to the agreement between the United States and Japan, Japan might have a claim against the\nUnited States for indemnification.\n\n157\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIt is a fundamental principle of our constitutional law that our foreign affairs\nare governed by the federal government and that the state governments may not\ninterfere.37 Moreover, sole executive agreements that purport to create legal\nobligations, like statutes and treaties, are \xe2\x80\x9c the supreme Law of the Land\xe2\x80\x9d for\npurposes of the Supremacy Clause, U.S. Const, art. VI, cl. 2, and thus bind the\nstates.38 Accordingly, it would seem that there would be no question but that\nthe federal government could, in pursuance of its foreign policy objectives, pro\xc2\xad\nhibit states from bringing certain claims against foreign countries. Yet, as Pro\xc2\xad\nfessor Henkin notes, despite many such \xe2\x80\x9c light, flat statements\xe2\x80\x9d that U.S. foreign\nrelations are strictly national, they \xe2\x80\x9c are not in fact wholly insulated from the\nStates.\xe2\x80\x9d 39 Not surprisingly, the scope of state authority in this regard is not well\ndefined.\nThe Supreme Court has upheld limitations imposed on the states by the federal\ngovernment in matters concerning foreign affairs. In both Belmont and Pink, the\nCourt held that the Litvinov Assignment\xe2\x80\x94 a sole executive agreement\xe2\x80\x94 would\nprevail over any inconsistent state policy.40 In Zschernig v. Miller, 389 U.S. 429\n(1968), the Court held that Oregon inheritance law that required probate courts\nto inquire into the type of government in particular foreign countries before\n37See e.g., Belmont, 301 U.S. at 331 ( \xe2\x80\x9c [C]omplete pow er over international affairs is in the national government\nand is not and cannot be subject to any curtailment or interference on the part o f the several states. In respect\no f all international negotiations and compacts, and in respect o f our foreign relations generally, state lines disappear.\xe2\x80\x9d\n(citations omitted)); Pink, 315 U.S. at 2 3 2 ( \xe2\x80\x9c If state laws and policies did not yield before the exercise o f the\nexternal pow ers o f the U nited States, then o u r foreign policy might be thwarted These are delicate matters. If state\naction could defeat o r alter our foreign policy, serious consequences m ight ensue. The nation as a whole would\nbe held to answ er if a State created difficulties with a foreign power.\xe2\x80\x9d ); Laurence H. Tribe, American Constitutional\nLaw \xc2\xa7 4 -6 , at 230 (2d ed. 1988) (noting th e general constitutional principle that, \xe2\x80\x9c whatever the division of foreign\npolicy responsibility within the national governm ent, all such responsibility is reposed at the national level rather\nthan dispersed among the states and localities\xe2\x80\x9d ).\n38 Restatem ent \xc2\xa7 1 , reporters* note 5 ( \xe2\x80\x9c There are no clear cases, but principle would support the view that the\nfederal governm ent can preempt and exclude the States not only by statute but by treaty or other international agree\xc2\xad\nment, and even by executive acts that are within the President\'s constitutional authority.\xe2\x80\x9d ); Restatement \xc2\xa7115,\nreporters\xe2\x80\x99 note 5 ( \xe2\x80\x9c A sole executive agreem ent made by the President on his own constitutional authority is the\nlaw o f the land and supreme to State l a w / \xe2\x80\x99); Memorandum for Conrad Harper, Legal Adviser, Department of State,\nfrom W alter D ellinger, Assistant Attorney General, O ffice o f Legal Counsel, Re: Enforceability o f Penalty-Related\nAssurances Provided to Foreign Nations in Connection with Extradition Requests (Nov. 18, 1993) (noting that sole\nexecutive agreem ents, valid under the President\'s own constitutional powers, preempt inconsistent state laws).\n39 Henkin, Foreign Affairs and the Constitution at 228.\n40 United Stales v. Belmont, 301 U.S. 3 2 4 (1937); United States v. Pink , 315 U.S. 203 (1942). Again, it could\nbe argued that Belmont and Pink are distinguishable because they involved the President\'s exclusive constitutional\npow er to recognize foreign governments and to normalize diplomatic relations. But, again, the language o f both\nopinions has been read to sanction a broader scope o f federal power. As Professor Henkin has written:\n[l]t has been suggested that the doctrine o f the Belmont case gives supremacy over state law only to\nexecutive agreements intimately related to the President\'s power o f recognition, and that even such agree\xc2\xad\nments will supersede only state pu b lic policy not formal state laws. Neither of these limitations was\nexpressed\xe2\x80\x94 o r im plied\xe2\x80\x94 in Belmont, or in the Pink case decided five years later by a reconstituted\nSupreme Court. W hile Pink makes m uch o f the relation o f the Litvinov Assignment to the recognition\no f the Soviet G overnment, the language and the reasoning o f both cases would apply as well to any execu\xc2\xad\ntive agreem ent and to any state law.\nH enkin, Foreign Affairs and the Constitution at 185. See also Department o f State Legal A dviser\'s Reply to Senate\nO ffice o f Legislative Counsel Memorandum on Certain M iddle East Agreements (Oct. 6, 1975), reprinted in 1 United\nStates Foreign Relations Law: Documents and Sources 295, 303-04 (Michael J. Glennon & Thomas M. Franck\neds., 1980).\n\n158\n\n\x0cWaiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity\n\npermitting citizens of those countries to inherit property from Oregon residents\nwas an invalid intrusion into the field of foreign affairs. See also Missouri v.\nHolland, 252 U.S. 416 (1920) (upholding, against state\xe2\x80\x99s tenth amendment chal\xc2\xad\nlenge, federal statute that executed a treaty protecting migratory birds).\nWe are aware of no cases upholding state challenges to federal international\nagreements on the ground of impermissible interference with state sovereignty.41\nThere is, however, dicta suggesting hypothetical constitutional limitations on the\nfederal government\xe2\x80\x99s ability to enter into international agreements that override\nstate law. See Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (\xe2\x80\x9c It would not be\ncontended that [the treaty power] extends so far as to authorize what the constitu\xc2\xad\ntion forbids, or a change in the character of the government or in that of one\nof the States, or a cession of any portion of the territory of the latter, without\nits consent.\xe2\x80\x9d ); Islamic Republic o f Iran v. Pahlavi, 62 N.Y.2d 474, 486 (1984)\n(\xe2\x80\x9c [I]t is questionable whether the Federal Government could guarantee a New\nYork forum by treaty without violating constitutional principles of federalism and\nseparation of powers.\xe2\x80\x9d ), cert, denied, 469 U.S. 1108 (1985).\nIt could perhaps be argued that the states\xe2\x80\x99 right at issue here \xe2\x80\x94 the ability to\nbring claims to recover monies due the state \xe2\x80\x94 is a core state prerogative and\nmore like the hypothetical examples of impermissible encroachments on the states\nthan, for instance, the state policy against giving effect to confiscations of assets\nsituated in the state and the inheritance laws at issue in Belmont, Pink, and\nZschernig. However, this seems strained as compared to the federal government\xe2\x80\x99s\nundisputed authority to maintain friendly relations with foreign governments,\nwhich, arguably, could be compromised by suits filed by states. We believe the\nweight of authority supports the President\xe2\x80\x99s power to waive states\xe2\x80\x99 claims against\na foreign government.\nTERESA WYNN ROSEBOROUGH\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n4i It is generally accepted that the Tenth Amendment does not apply to impose limits on the subject matter o f\ninternational agreements. Missouri v. Holland, 252 U.S. at 434 (federal treaty power is not checked by any \xe2\x80\x9c invisible\nradiation from the general terms o f the Tenth Amendment\xe2\x80\x9d ); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion)\n( \xe2\x80\x9c To the extent that the United States can validly make treaties, the people and the States have delegated their\npowerfs] to the National Government and the Tenth Amendment is no barrier.\xe2\x80\x9d ); Restatement \xc2\xa7302 cmt. d ("[T )h e\nTenth A m endm ent. . . does not limit the power to make treaties o r other agreements.\xe2\x80\x9d ).\n\n159\n\n\x0c'