b'(Slip Opinion)\n\nApril 2018 Airstrikes Against Syrian\nChemical-Weapons Facilities\nThe President could lawfully direct airstrikes on facilities associated with Syria\xe2\x80\x99s chemicalweapons capability because he had reasonably determined that the use of force would be\nin the national interest and that the anticipated hostilities would not rise to the level of a\nwar in the constitutional sense.\nMay 31, 2018\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nOn April 13, 2018, the President directed the United States military to\nlaunch airstrikes against three facilities associated with the chemicalweapons capability of the Syrian Arab Republic (\xe2\x80\x9cSyria\xe2\x80\x9d). The President\xe2\x80\x99s\ndirection was consistent with many others taken by prior Presidents, who\nhave deployed our military forces in limited engagements without seeking\nthe prior authorization of Congress. This deeply rooted historical practice,\nacknowledged by courts and Congress, reflects the well-established division\nof war powers under our Constitution. Prior to the Syrian operation, you\nrequested our advice on the President\xe2\x80\x99s authority. Before the strikes occurred, we advised that the President could lawfully direct them because he\nhad reasonably determined that the use of force would be in the national\ninterest and that the anticipated hostilities would not rise to the level of a war\nin the constitutional sense. This memorandum explains the bases for our\nconclusion.\nI.\nOn April 7, 2018, the Syrian regime used chemical weapons in the eastern\nDamascus suburb of Duma. United States Government Assessment of the\nAssad Regime\xe2\x80\x99s Chemical Weapons Use (Apr. 13, 2018) (\xe2\x80\x9cUSG Assessment \xe2\x80\x9d), https://www.whitehouse.gov/briefings-statements/united-statesgovernment-assessment-assad-regimes-chemical-weapons-use/. At the\ntime, the intelligence community had assessed that the regime carried out\nthis attack with chlorine gas and perhaps with the nerve agent sarin as well.\nBriefing by Secretary Mattis on U.S. Strikes in Syria (Apr. 13, 2018) (\xe2\x80\x9cMattis Briefing\xe2\x80\x9d), https://www.defense.gov/News/Transcripts/Transcript-View/\nArticle/1493658/briefing-by-secretary-mattis-on-us-strikes-in-syria/. The\nattack, part of a weeks-long offensive by the regime, killed dozens of inno1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\ncent men, women, and children, and injured hundreds. USG Assessment. In\nthis use of chemical weapons, the regime sought to \xe2\x80\x9cterrorize and subdue\xe2\x80\x9d\nthe civilian population, as well as opposition fighters. Id.\nThe Syrian government\xe2\x80\x99s latest use of chemical weapons followed a\nstring of other chemical-weapons attacks. The regime used sarin in November 2017 in the suburbs of Damascus and in an April 2017 attack on Khan\nShaykhun. Id. It also dropped chlorine bombs three times in just over a week\nlast spring and launched at least four chlorine rockets in January in Duma.\nId. The U.S. government has assessed that the regime used chemical weapons on many other occasions\xe2\x80\x94it has identified more than fifteen chemicalweapons uses since June 2017 in the suburb of East Ghutah alone\xe2\x80\x94and\nbelieves that the regime, unless deterred, will continue to make use of such\nweapons. Id.\nOn April 13, 2018, in coordination with the United Kingdom and France,\nthe United States attacked three facilities associated with Syria\xe2\x80\x99s use of\nchemical weapons: the Barzeh Research and Development Center, the Him\nShinshar chemical-weapons storage facility, and the Him Shinshar chemicalweapons bunker facility. Department of Defense Press Briefing by Pentagon\nChief Spokesperson Dana W. White and Joint Staff Director Lt. Gen. Kenneth F. McKenzie Jr. in the Pentagon Briefing Room (Apr. 14, 2018) (statement of Lt. Gen. McKenzie) (\xe2\x80\x9cDoD Briefing\xe2\x80\x9d), https://www.defense.gov/\nNews/Transcripts/Transcript-View/Article/1493749/department-of-defensepress-briefing-by-pentagon-chief-spokesperson-dana-w-whit/. The Barzeh\nCenter was used for the research, development, production, and testing of\nchemical and biological weapons. Mattis Briefing (statement of Gen. Dunford). The Him Shinshar sites were a chemical-weapons storage facility\nassessed to be the primary location of Syrian sarin-production equipment, as\nwell as a chemical-weapons storage facility and an important command post.\nId. In total, the United States launched 105 missiles from naval platforms in\nthe Red Sea, the Northern Arabian Gulf, and the Eastern Mediterranean.\nDoD Briefing (statement of Lt. Gen. McKenzie). The missiles all hit their\ntargets within a few minutes of each other, although the full operation lasted\nseveral hours. Id.\nThe United States deconflicted the airspace with Russia in advance and\nselected the sites to reduce the risk of hitting Russian forces. DoD Briefing\n(statement of Lt. Gen. McKenzie); Mattis Briefing (statement of Gen. Dunford). The strikes were timed to hit their targets around 4 a.m. local time to\nreduce casualties. DoD Briefing (statement of Lt. Gen. McKenzie). The sites\n2\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nwere chosen to minimize collateral damage, while inflicting damage on the\nchemical-weapons program. Id. (\xe2\x80\x9c[T]hese are the targets that presented the\nbest opportunity to minimize collateral damage, to avoid killing innocent\ncivilians, and yet to send a very strong message.\xe2\x80\x9d); Mattis Briefing (statement of General Dunford) (\xe2\x80\x9c[W]e chose these particular targets to mitigate\nthe risk of civilian casualties, number one. We chose these targets because\nthey were specifically associated with the chemical program . . . . So these\ntargets were carefully selected with proportionality[,] discrimination and\nbeing specifically associated with the chemical program.\xe2\x80\x9d).\nThe allied attacks followed a limited U.S. strike in April 2017, in the\nwake of Syria\xe2\x80\x99s use of sarin against civilians in Khan Shaykhun. At that\ntime, the United States responded with fifty-eight missiles aimed at the\nShayrat airfield, which damaged or destroyed Syrian fuel and ammunition\nsites, air defense capabilities, and twenty percent of the Syrian Air Force\xe2\x80\x99s\noperational aircraft. Remarks on United States Military Operations in Syria,\n2018 Daily Comp. Pres. Doc. 201800242, at 1 (Apr. 13, 2018) (\xe2\x80\x9cRemarks on\nSyria Operations\xe2\x80\x9d); Statement by Secretary of Defense Jim Mattis on the\nU.S. Military Response to the Syrian Government\xe2\x80\x99s Use of Chemical Weapons (Apr. 10, 2017), https://www.defense.gov/News/News-Releases/NewsRelease-View/Article/1146758/statement-by-secretary-of-defense-jimmattis-on-the-us-military-response-to-the/source/GovDelivery/. While the\nApril 2017 strike targeted the airfield from which the Syrian regime delivered the weapons, the 2018 attacks were focused on the long-term degradation of Syria\xe2\x80\x99s capability to research, develop, and use chemical and biological weapons. Mattis Briefing (statement of Gen. Dunford).\nII.\nWhen it comes to the war powers of the President, we do not write on a\nblank slate. The legal opinions of executive advisers and the still weightier\nprecedents of history have established that the President, as Commander in\nChief and Chief Executive, has the constitutional authority to deploy the\nmilitary to protect American persons and interests without seeking prior\nauthorization from Congress. See, e.g., The President and the War Power:\nSouth Vietnam and the Cambodian Sanctuaries, 1 Op. O.L.C. Supp. 321,\n331 (May 22, 1970) (\xe2\x80\x9cCambodian Sanctuaries\xe2\x80\x9d); Training of British Flying\nStudents in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 62 (1941) (Jackson,\nA.G.) (\xe2\x80\x9cBritish Flying Students\xe2\x80\x9d). The President\xe2\x80\x99s authority in this area has\nbeen elucidated by dozens of occasions over the course of 230 years, quite\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nliterally running from the halls of Montezuma to the shores of Tripoli and\nbeyond. 1 Many of those actions were approved by opinions of this Office or\nof the Attorney General, and many involved engagements considerably\nbroader than the April 2018 Syrian strikes. The Constitution reserves to\nCongress the authority to \xe2\x80\x9cdeclare War\xe2\x80\x9d and thereby to decide whether to\ncommit the Nation to a sustained, full-scale conflict with another Nation.\nYet Presidents have repeatedly engaged in more limited hostilities to advance the Nation\xe2\x80\x99s interests without first seeking congressional authorization.\nThe President\xe2\x80\x99s authority to direct U.S. military forces arises from Article\nII of the Constitution, which makes the President the \xe2\x80\x9cCommander in Chief\nof the Army and Navy of the United States,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2, cl. 1,\nand vests in him the Executive Power, id. art. II, \xc2\xa7 1, cl. 1. These powers\nallow him \xe2\x80\x9cto direct the movements of the naval and military forces placed\nby law at his command.\xe2\x80\x9d Fleming v. Page, 50 U.S. (9 How.) 603, 615\n(1850). Chief Justice Marshall suggested that the President\xe2\x80\x99s \xe2\x80\x9chigh duty\xe2\x80\x9d to\n\xe2\x80\x9c\xe2\x80\x98take care that the laws be faithfully executed,\xe2\x80\x99\xe2\x80\x9d as well as his power as\n\n1 After receiving an ultimatum from the Bey of Tripoli in May 1801, President Jefferson\ndispatched U.S. ships to the Mediterranean with orders, in the event the Barbary Powers\ndeclared war, to \xe2\x80\x9cdistribute your force . . . so as best to protect our commerce & chastise their\ninsolence\xe2\x80\x94by sinking, burning or destroying their ships & Vessels wherever you shall find\nthem.\xe2\x80\x9d David P. Currie, The Constitution in Congress: The Jeffersonians, 1801\xe2\x80\x931829, at 127\xe2\x80\x93\n28 (2001). After Tripoli declared war, the United States launched a surprise attack on a\nTripolitan vessel. Id. at 128. In reporting the action to Congress, Jefferson elided the offensive nature of the attack and sought authorization to \xe2\x80\x9cgo beyond the line of defense,\xe2\x80\x9d id. at\n124, 128, which Congress granted on February 6, 1802. See Act of Feb. 6, 1802, ch. IV, \xc2\xa7 2,\n2 Stat. 129, 130.\nAfter Congress annexed Texas, President Polk deployed the U.S. military 150 miles\nsouth of the disputed border with Mexico to the Rio Grande in June 1845. See David P.\nCurrie, The Constitution in Congress: Descent into the Maelstrom, 1829\xe2\x80\x931861, at 102\n(2005); 4 A Compilation of the Messages and Papers of the Presidents, 1788\xe2\x80\x931897, at 437,\n440 (James D. Richardson ed., 1897); see also Cambodian Sanctuaries, 1 Op. O.L.C. Supp.\nat 327. After active hostilities commenced, Congress declared war. See Act of May 13,\n1846, ch. XVI, 9 Stat. 9 (1846); see also The Prize Cases, 67 U.S. (2 Black) 635, 668\n(1863) (\xe2\x80\x9cThe battles of Palo Alto and Resaca de la Palma had been fought before the\npassage of the Act of Congress of May 13th, 1846, which recognized \xe2\x80\x98a state of war as\nexisting by the act of the Republic of Mexico.\xe2\x80\x99 This act not only provided for the future\nprosecution of the war, but was itself a vindication and ratification of the Act of the\nPresident in accepting the challenge without a previous formal declaration of war by\nCongress.\xe2\x80\x9d).\n\n4\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nCommander in Chief, imply some authority to deploy U.S. military force.\nLittle v. Barreme, 6 U.S. (2 Cranch) 170, 177 (1804). The Supreme Court\nhas recognized that the President holds the \xe2\x80\x9cvast share of responsibility for\nthe conduct of our foreign relations,\xe2\x80\x9d Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S.\n396, 414 (2003) (internal quotation marks omitted), and holds \xe2\x80\x9cindependent\nauthority in the areas of foreign policy and national security,\xe2\x80\x9d id. at 429\n(internal quotation marks omitted); see also Dep\xe2\x80\x99t of Navy v. Egan, 484 U.S.\n518, 529 (1988) (\xe2\x80\x9cThe Court also has recognized the generally accepted\nview that foreign policy [is] the province and responsibility of the Executive.\xe2\x80\x9d) (internal quotation marks omitted). By its terms, Article II provides\nthe President with the authority to direct U.S. military forces in engagements\nnecessary to advance American national interests abroad.\nIn evaluating the division of authority between the President and Congress, the Supreme Court has placed \xe2\x80\x9csignificant weight\xe2\x80\x9d on \xe2\x80\x9caccepted\nunderstandings and practice.\xe2\x80\x9d Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091\n(2015); see NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014) (noting\nthat \xe2\x80\x9clong settled and established practice is a consideration of great weight\nin a proper interpretation of constitutional provisions regulating the relationship between Congress and the President\xe2\x80\x9d (internal quotation marks and\nalterations omitted)); Dames & Moore v. Regan, 453 U.S. 654, 678\xe2\x80\x9386\n(1981) (describing \xe2\x80\x9ca history of congressional acquiescence in conduct of\nthe sort engaged in by the President\xe2\x80\x9d). We have recognized that \xe2\x80\x9c[s]ince\njudicial precedents are virtually non-existent\xe2\x80\x9d in defining the scope of the\nPresident\xe2\x80\x99s war powers, \xe2\x80\x9cthe question is one which of necessity must be\ndecided by historical practice.\xe2\x80\x9d Presidential Authority to Permit Incursion\nInto Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op.\nO.L.C. Supp. 313, 317 (May 14, 1970) (\xe2\x80\x9cVietnam Border Area\xe2\x80\x9d).\nAnd that history points strongly in one direction. While our Nation has\nsometimes debated the scope of the President\xe2\x80\x99s war powers under the Constitution, his authority to direct U.S. forces in hostilities without prior congressional authorization is supported by a \xe2\x80\x9clong continued practice on the\npart of the Executive, acquiesced in by the Congress.\xe2\x80\x9d Cambodian Sanctuaries, 1 Op. O.L.C. Supp. at 326; see also Deployment of United States Armed\nForces to Haiti, 28 Op. O.L.C. 30, 31 (2004) (\xe2\x80\x9cHaiti Deployment II \xe2\x80\x9d) (\xe2\x80\x9cHistory offers ample evidence for the proposition that the President may take\nmilitary action abroad, even, as here, in the absence of specific prior congressional authorization.\xe2\x80\x9d); Presidential Power to Use the Armed Forces\nAbroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980)\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\n(\xe2\x80\x9cPresidential Power\xe2\x80\x9d) (\xe2\x80\x9cOur history is replete with instances of presidential\nuses of military force abroad in the absence of prior congressional approval.\xe2\x80\x9d).\nPresidents have exercised their authority to direct military operations\nwithout congressional authorization since the earliest days of the Republic.\nPresident Washington directed offensive operations against the Wabash\nIndians in 1790. See David P. Currie, The Constitution in Congress: The\nFederalist Period, 1789\xe2\x80\x931801, at 84 (1997) (\xe2\x80\x9c[B]oth Secretary [of War]\nKnox and [President] Washington himself seemed to think [the Commander\nin Chief ] authority extended to offensive operations undertaken in retaliation for Indian atrocities.\xe2\x80\x9d). As noted above, the Jefferson Administration\ninstructed the United States Navy to \xe2\x80\x9csink[], burn[] or destroy[]\xe2\x80\x9d Barbary\ncruisers. See supra note 1; see also Authority to Use United States Military\nForces in Somalia, 16 Op. O.L.C. 6, 9 (1992) (\xe2\x80\x9cSomalia Deployment \xe2\x80\x9d).\nThese past deployments have included President Truman\xe2\x80\x99s defense of South\nKorea; President Kennedy\xe2\x80\x99s introduction of U.S. forces into Vietnam;\nPresident Reagan\xe2\x80\x99s retaliatory strikes on Libya following the Beirut bombing; President George H.W. Bush\xe2\x80\x99s introduction of U.S. troops into Somalia;\nPresident Clinton\xe2\x80\x99s actions in Bosnia, Haiti, Kosovo, Sudan, and Afghanistan; President George W. Bush\xe2\x80\x99s intervention in Haiti; and President\nObama\xe2\x80\x99s airstrikes in Libya and in Houthi-controlled territory in Yemen.\nWhile the precise counting varies, by the middle of the twentieth century,\nscholars had identified well over 100 instances of military deployments\nwithout prior congressional authorization. See Proposed Deployment of\nUnited States Armed Forces into Bosnia, 19 Op. O.L.C. 327, 331 (1995)\n(\xe2\x80\x9cBosnia Deployment \xe2\x80\x9d) (\xe2\x80\x9cIn at least 125 instances, the President acted\nwithout express authorization from Congress.\xe2\x80\x9d); William Gabriel Carras,\nThe Analysis and Interpretation of the Use of Presidential Authority to\nOrder United States Armed Forces into Military Action in Foreign Territories Without a Formal Declaration of War 369 (1959) (identifying 124 of\n141 military deployments between 1798 and 1956); James Grafton Rogers,\nWorld Policing and the Constitution 93\xe2\x80\x93123 (1945) (identifying 119 of 149\nmilitary deployments between 1798 and 1941). In the forty-five years since\nthe 1973 enactment of the War Powers Resolution, Pub. L. No. 93-148, 87\nStat. 555, Presidents have submitted more than eighty reports of hostilities to\nCongress that did not rely upon statutory authorization. See Matthew C.\nWeed, Cong. Research Serv., R42699, The War Powers Resolution: Concepts and Practice 57\xe2\x80\x9383 (Mar. 28, 2017). From the border of the Rio\n6\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nGrande to the thirty-eighth parallel on the Korean peninsula, from the Gulf\nof Tonkin to the Shayrat Airfield, Presidents have acted, and Congress has\naccepted or ratified the President\xe2\x80\x99s use of the military, to advance our national interests.\nAs Assistant Attorney General Rehnquist observed, \xe2\x80\x9c[i]t is too plain\xe2\x80\x9d in\nview of this record \xe2\x80\x9cto admit of denial that the Executive, under his power as\nCommander in Chief, is authorized to commit American forces in such a\nway as to seriously risk hostilities, and also to actually commit them to such\nhostilities, without prior congressional approval.\xe2\x80\x9d Cambodian Sanctuaries,\n1 Op. O.L.C. Supp. at 331. That historical record has only expanded in the\ndecades since Vietnam. Since then, in light of \xe2\x80\x9crepeated past practice under\nmany Presidents,\xe2\x80\x9d this Office has repeatedly advised that \xe2\x80\x9cthe President has\nthe power to commit United States troops abroad for the purpose of protecting important national interests.\xe2\x80\x9d Somalia Deployment, 16 Op. O.L.C. at 9;\nsee also Authority to Use Military Force in Libya, 35 Op. O.L.C. ___, at *6\n(Apr. 1, 2011) (\xe2\x80\x9cLibya Deployment \xe2\x80\x9d), https://www.justice.gov/sites/default/\nfiles/olc/opinions/2011/04/31/authority-military-use-in-libya_0.pdf; Haiti\nDeployment II, 28 Op. O.L.C. at 31. Congress likewise acknowledged this\nauthority in the War Powers Resolution, at least implicitly, by recognizing\nthat the President may introduce U.S. forces into hostilities for up to sixty\ndays or more without congressional authorization. 50 U.S.C. \xc2\xa7 1544(b); see\nalso Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C.\n173, 176 (1994) (\xe2\x80\x9cHaiti Deployment I \xe2\x80\x9d). 2\nAlthough \xe2\x80\x9c[t]he limits of the President\xe2\x80\x99s power as Commander in Chief\nare nowhere defined in the Constitution,\xe2\x80\x9d we have recognized a \xe2\x80\x9cnegative\n2\n\nThe War Powers Resolution does not constitute an affirmative source of authority for the\nPresident to introduce U.S. forces into hostilities, 50 U.S.C. \xc2\xa7 1547(d)(2), but it also is not\n\xe2\x80\x9cintended to alter the constitutional authority . . . of the President.\xe2\x80\x9d Id. \xc2\xa7 1547(d)(1). By\nseeking to require the cessation of hostilities within sixty days, absent congressional authorization, the statute assumes that the President has the authority to authorize such engagements.\nThe statute begins with a statement of purpose and policy that identifies a narrow set of\nengagements that the President may direct without congressional authorization. Id. \xc2\xa7 1541(c).\nYet we have recognized that this policy statement neither affirmatively limits presidential\nauthority nor constitutes an exhaustive list of the circumstances in which the President may\nuse military force to protect important national interests. See, e.g., Overview of the War\nPowers Resolution, 8 Op. O.L.C. 271, 274 (1984); see also Authority of the President Under\nDomestic and International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 143,\n159\xe2\x80\x9361 (2002) (summarizing the Executive Branch\xe2\x80\x99s longstanding constitutional concerns\nwith the War Powers Resolution).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nimplication from the fact that the power to declare war is committed to\nCongress.\xe2\x80\x9d Cambodian Sanctuaries, 1 Op. O.L.C. Supp. at 325. The Constitution reserves to Congress the power to \xe2\x80\x9cdeclare War,\xe2\x80\x9d U.S. Const.\nart. I, \xc2\xa7 8, cl. 11, and the authority to fund military operations, id. art. I,\n\xc2\xa7 8, cl. 12. This was a deliberate choice of the Founders, who sought to\nprevent the President from bringing the Nation into a full-scale war without the authorization of Congress. See, e.g., The Federalist No. 69, at 465\n(Alexander Hamilton) (Jacob E. Cooke ed., 1961) (recognizing that the\nPresident lacks the authority of the British King, which \xe2\x80\x9cextends to the\ndeclaring of war and to the raising and regulating of fleets and armies; all\nwhich by the Constitution under consideration would appertain to the\nLegislature\xe2\x80\x9d); 4 Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution 107\xe2\x80\x9308 (2d ed. 1836)\n(James Iredell, speaking at the North Carolina Ratifying Convention)\n(\xe2\x80\x9cThe President has not the power of declaring war by his own authority,\nnor that of raising fleets and armies. These powers are vested in other\nhands. The power of declaring war is expressly given to Congress, that is,\nto the two branches of the legislature . . . . They have also expressly delegated to them the powers of raising and supporting armies, and of providing and maintaining a navy.\xe2\x80\x9d); United States v. Smith, 27 F. Cas. 1192,\n1230 (C.C.D.N.Y. 1806) (No. 16,342) (\xe2\x80\x9c[I]t is the exclusive province of\ncongress to change a state of peace into a state of war.\xe2\x80\x9d). These legislative\npowers ensure that the use of force \xe2\x80\x9ccannot be sustained over time without\nthe acquiescence, indeed the approval, of Congress, for it is Congress that\nmust appropriate the money to fight a war or a police action.\xe2\x80\x9d Presidential\nPower, 4A Op. O.L.C. at 188. These powers further oblige the President to\nseek congressional approval prior to contemplating military action that\nwould bring the Nation into a war.\nNot every military operation, however, rises to the level of a war. Rather,\n\xe2\x80\x9cthe historical practice of military action without congressional approval\nprecludes any suggestion that Congress\xe2\x80\x99s authority to declare war covers\nevery military engagement, however limited, that the President initiates.\xe2\x80\x9d\nLibya Deployment at *8. Early on, the Supreme Court distinguished between\na declared war (which arises where \xe2\x80\x9cone whole nation is at war with another\nwhole nation\xe2\x80\x9d with hostilities arising \xe2\x80\x9cin every place, and under every\ncircumstance\xe2\x80\x9d) and a more limited engagement, an \xe2\x80\x9cimperfect war\xe2\x80\x9d (in\nwhich hostilities are \xe2\x80\x9cmore confined in its nature and extent; being limited as\nto places, person and things\xe2\x80\x9d). Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40\xe2\x80\x9341\n8\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\n(1800). 3 Consistent with that early recognition, we have repeatedly distinguished between limited hostilities and \xe2\x80\x9cprolonged and substantial military\nengagements, typically involving exposure of U.S. military personnel to\nsignificant risk over a substantial period.\xe2\x80\x9d Libya Deployment at *8.\nWhen reviewing proposed military engagements, this Office has recognized that \xe2\x80\x9ca planned military engagement that constitutes a \xe2\x80\x98war\xe2\x80\x99 within the\nmeaning of the Declaration of War Clause may require prior congressional\nauthorization.\xe2\x80\x9d Id.; see also Cambodian Sanctuaries, 1 Op. O.L.C. Supp. at\n331\xe2\x80\x9332 (\xe2\x80\x9c[I]f the contours of the divided war power contemplated by the\nframers of the Constitution are to remain, constitutional practice must include executive resort to Congress in order to obtain its sanction for the\nconduct of hostilities which reach a certain scale.\xe2\x80\x9d); Vietnam Border Area,\n1 Op. O.L.C. Supp. at 317 (\xe2\x80\x9cUnder our Constitution it is clear that Congress\nhas the sole authority to declare formal, all-out war.\xe2\x80\x9d). We have therefore\nconsidered the scale of the expected hostilities in analyzing whether a proposed engagement would constitute a war for constitutional purposes. See\nLibya Deployment at *8\xe2\x80\x939; Haiti Deployment I, 18 Op. O.L.C. at 177\xe2\x80\x9378.\nIII.\nWe now explain our analysis of the April 13, 2018 Syrian strikes in light\nof our precedents. In evaluating whether a proposed military action falls\nwithin the President\xe2\x80\x99s authority under Article II of the Constitution, we have\ndistilled our precedents into two inquiries. First, we consider whether the\nPresident could reasonably determine that the action serves important national interests. See, e.g., Somalia Deployment, 16 O.L.C. at 9 (\xe2\x80\x9cAt the core\nof this power is the President\xe2\x80\x99s authority to take military action to protect\n\n3 Bas concerned the Quasi-War with France, which involved hostilities that Congress had\nauthorized by statute without a formal declaration of war. See Treason, 1 Op. Att\xe2\x80\x99y Gen. 84,\n84 (1798) (\xe2\x80\x9cHaving taken into consideration the acts of the French republic relative to the\nUnited States, and the laws of Congress passed at the last session, it is my opinion that there\nexists not only an actual maritime war between France and the United States, but a maritime\nwar authorized by both nations.\xe2\x80\x9d). We do not suggest that every \xe2\x80\x9cimperfect war\xe2\x80\x9d falls within\nthe sphere of unilateral executive action. As with the Quasi-War, Congress may authorize the\nuse of force in such conflicts, and we do not rule out that some imperfect wars may involve\nsuch prolonged and substantial engagements as to require that authorization. Our point though\nis that the early Supreme Court recognized the distinction between wars that must be declared\nunder Article I, Section 8 of the Constitution and more limited military engagements\xe2\x80\x94many\nof which have not traditionally been authorized by Congress.\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nAmerican citizens, property, and interests from foreign threats.\xe2\x80\x9d); British\nFlying Students, 40 Op. Att\xe2\x80\x99y Gen. at 62 (\xe2\x80\x9c[T]he President\xe2\x80\x99s authority has\nlong been recognized as extending to the dispatch of armed forces outside of\nthe United States, either on missions of good will or rescue, or for purposes\nof protecting American lives or property or American interests.\xe2\x80\x9d). Second,\nwe consider whether the \xe2\x80\x9canticipated nature, scope and duration\xe2\x80\x9d of the\nconflict might rise to the level of a war under the Constitution. See Libya\nDeployment at *9 (quoting Haiti Deployment I, 18 Op. O.L.C. at 179). Prior\nto the Syrian strikes, we applied this framework to conclude that the proposed Syrian operation would fall within the President\xe2\x80\x99s constitutional\nauthority.\nA.\nThis Office has recognized that a broad set of interests would justify use\nof the President\xe2\x80\x99s Article II authority to direct military force. These interests\nunderstandably grant the President a great deal of discretion. The scope of\nU.S. involvement in the world, the presence of U.S. citizens across the\nglobe, and U.S. leadership in times of conflict, crisis, and strife require that\nthe President have wide latitude to protect American interests by responding\nto regional conflagrations and humanitarian catastrophes as he believes\nappropriate. The Commander in Chief bears great responsibility for the use\nof the armed forces and for putting U.S. forces in harm\xe2\x80\x99s way. We would not\nexpect that any President would use this power without a substantial basis\nfor believing that a proposed operation is necessary to advance important\ninterests of the Nation. The aim of this inquiry is not to evaluate the worth of\nthe interests at stake\xe2\x80\x94a question more of policy than of law\xe2\x80\x94but rather, to\nset forth the justifications for the President\xe2\x80\x99s use of military force and to\nsituate those interests within a framework of prior precedents.\nIn our past opinions, this Office has identified a number of different interests that have supported sending U.S. forces into harm\xe2\x80\x99s way, including the\nfollowing:\n\xe2\x80\xa2 the protection of U.S. persons and property, see, e.g., Presidential\nPower, 4A Op. O.L.C. at 187 (\xe2\x80\x9cPresidents have repeatedly employed\ntroops abroad in defense of American lives and property.\xe2\x80\x9d); Haiti Deployment II, 28 Op. O.L.C. at 31 (\xe2\x80\x9cThe President has the authority to\ndeploy the armed forces abroad in order to protect American citizens\nand interests from foreign threats.\xe2\x80\x9d);\n10\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\n\xe2\x80\xa2 assistance to allies, see, e.g., Haiti Deployment I, 18 Op. O.L.C. at 79\n(approving of intervention \xe2\x80\x9cat the invitation of a fully legitimate government\xe2\x80\x9d); Presidential Power, 4A Op. O.L.C. at 187\xe2\x80\x9388 (citing the\nKorean War as \xe2\x80\x9cprecedent . . . for the commitment of United States\narmed forces, without prior congressional approval or declaration of\nwar, to aid an ally in repelling an armed invasion\xe2\x80\x9d);\n\xe2\x80\xa2 support for the United Nations, see, e.g., Haiti Deployment II, 28 Op.\nO.L.C. at 33 (\xe2\x80\x9cAnother American interest in Haiti arises from the involvement of the United Nations in the situation there.\xe2\x80\x9d); Somalia Deployment, 16 Op. O.L.C. at 11 (\xe2\x80\x9c[M]aintaining the credibility of United\nNations Security Council decisions, protecting the security of United\nNations and related relief efforts, and ensuring the effectiveness of\nUnited Nations peacekeeping operations can be considered a vital national interest[.]\xe2\x80\x9d); and\n\xe2\x80\xa2 promoting regional stability, see, e.g., Haiti Deployment II, 29 Op.\nO.L.C. at 32 (\xe2\x80\x9cThe President also may determine that the deployment\nis necessary to protect American foreign policy interests. One such interest is the preservation of regional stability.\xe2\x80\x9d); Libya Deployment at\n*12 (\xe2\x80\x9c[W]e believe the President could reasonably find a significant\nnational security interest in preventing Libyan instability from spreading elsewhere in this critical region.\xe2\x80\x9d).\nIn recent years, we have also identified the U.S. interest in mitigating humanitarian disasters. See Memorandum Opinion for the Counsel to the\nPresident, from Karl R. Thompson, Principal Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Authority to Use Military Force in\nIraq at 20\xe2\x80\x9324 (Dec. 30, 2014) (\xe2\x80\x9cIraq Deployment \xe2\x80\x9d). With respect to Syria,\nin April 2017, the President identified the U.S. interest in preventing the use\nand proliferation of chemical weapons, see Letter to Congressional Leaders\non United States Military Operations in Syria, 2017 Daily Comp. Pres. Doc.\n201700244, at 1 (Apr. 8, 2017) (\xe2\x80\x9c2017 Congressional Notification\xe2\x80\x9d). As\nexplained below, these interests too are consistent with those that the President and his advisers have relied upon in the past.\nThe President identified three interests in support of the April 2018 Syria\nstrikes: the promotion of regional stability, the prevention of a worsening of\nthe region\xe2\x80\x99s humanitarian catastrophe, and the deterrence of the use and\nproliferation of chemical weapons. See Letter to Congressional Leaders on\nUnited States Military Operations in Syria, 2018 Daily Comp. Pres. Doc.\n201800243, at 1 (Apr. 15, 2018). Prior to the attack, we advised that the\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nPresident could reasonably rely on these national interests to authorize air\nstrikes against particular facilities associated with Syria\xe2\x80\x99s chemical-weapons\nprogram without congressional authorization.\nAs discussed above, Presidents have deployed U.S. troops on multiple\noccasions in the interest of promoting regional stability and preventing the\nspread of an ongoing conflict. While the United States is not the world\xe2\x80\x99s\npoliceman, as its power has grown, the breadth of its regional interests has\nexpanded and threats to national interests posed by foreign disorder have\nincreased. See, e.g., Authority of the President to Repel the Attack in Korea,\n23 Dep\xe2\x80\x99t of State Bull. 173, 175 (1950) (\xe2\x80\x9cAttack in Korea\xe2\x80\x9d) (quoting Secretary of State Hay\xe2\x80\x99s statement that President McKinley dispatched troops to\nChina during the Boxer rebellion in part to \xe2\x80\x9cprevent a spread of the disorders\xe2\x80\x9d); Clarence W. Berdahl, War Powers of the Executive of the United\nStates 53\xe2\x80\x9355 (1921) (describing numerous instances of the deployment of\ntroops to secure stability in the Caribbean). This Office has consistently\nrecognized that U.S. national interests in regional stability may support\nmilitary intervention. See Haiti Deployment II, 28 Op. O.L.C. at 32 (\xe2\x80\x9cThe\nPresident also may determine that the deployment is necessary to protect\nAmerican foreign policy interests. One such interest is the preservation of\nregional stability.\xe2\x80\x9d); Bosnia Deployment, 19 Op. O.L.C. at 332\xe2\x80\x9333 (\xe2\x80\x9c[Military deployment] would serve significant national security interests, by\npreserving peace in the region and forestalling the threat of a wider conflict.\xe2\x80\x9d); Libya Deployment at *10 (concluding the combination of interests in\n\xe2\x80\x9cpreserving regional stability and supporting the [United Nation Security\nCouncil\xe2\x80\x99s] credibility and effectiveness\xe2\x80\x9d were a \xe2\x80\x9csufficient basis for the\nPresident\xe2\x80\x99s exercise of his constitutional authority to order the use of military force\xe2\x80\x9d).\nHere, the President could reasonably determine that Syria\xe2\x80\x99s use of chemical weapons in the ongoing civil war threatens to undermine further peace\nand security of the Near East, a region that remains critically important to\nour national security. Syria\xe2\x80\x99s possession and use of chemical weapons have\nincreased the risk that others will gain access to them. See Daniel R. Coats,\nDirector of National Intelligence, Statement for the Record: Worldwide\nThreat Assessment of the US Intelligence Community at 7 (Feb. 13, 2018),\nhttps://www.dni.gov/files/documents/Newsroom/Testimonies/2018-ATA--Unclassified-SSCI.pdf (\xe2\x80\x9cWorldwide Threat Assessment\xe2\x80\x9d) (\xe2\x80\x9cBiological and\nchemical materials and technologies\xe2\x80\x94almost always dual-use\xe2\x80\x94move easily\nin the globalized economy, as do personnel with the scientific expertise to\n12\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\ndesign and use them for legitimate and illegitimate purposes.\xe2\x80\x9d). The proliferation of such weapons to other countries with fragile governments or to\nterrorist groups could further spread conflict and disorder within the region.\nSee Council on Foreign Relations, A Conversation with Nikki Haley (Mar.\n29, 2017), https://www.cfr.org/event/conversation-nikki-haley (\xe2\x80\x9cLet\xe2\x80\x99s really\nlook at the fact that if we don\xe2\x80\x99t have a stable Syria, we don\xe2\x80\x99t have a stable\nregion.\xe2\x80\x9d); Remarks to the United Nations General Assembly in New York\nCity, 2017 Daily Comp. Pres. Doc. 201700658, at 5 (Sept. 19, 2017), (\xe2\x80\x9cNo\nsociety can be safe if banned chemical weapons are allowed to spread.\xe2\x80\x9d);\nUnited States Mission to the United Nations, Ambassador Haley Delivers\nRemarks at a UN Security Council Meeting on Nonproliferation (Jan. 18,\n2018), https://usun.state.gov/highlights/8276 (\xe2\x80\x9cThe regimes that most threaten the world today with weapons of mass destruction are also the source of\ndifferent kinds of security challenges. They deny human rights and fundamental freedoms to their people. They promote regional instability. They aid\nterrorists and militant groups. They promote conflict that eventually spills\nover its borders.\xe2\x80\x9d). The United States has a direct interest in ensuring that\nothers in the region not look to Syria\xe2\x80\x99s use of chemical weapons as a successful precedent for twenty-first-century conflicts.\nMoreover, the regime\xe2\x80\x99s use of chemical weapons is a particularly egregious part of a broader destabilizing conflict. The civil war in Syria directly\nempowered the growth of the Islamic State of Iraq and Syria (\xe2\x80\x9cISIS\xe2\x80\x9d), a\nterrorist threat that has required the deployment of over 2,000 U.S. troops.\nSee Jim Garmone, DoD News, Defense Media Activity, Pentagon Announces Troop Levels in Iraq, Syria (Dec. 6, 2017), https://www.defense.gov/\nNews/Article/Article/1390079/pentagon-announces-troop-levels-in-iraqsyria/. 4 The instability in Syria has had a direct and marked impact upon the\nnational security of close American allies and partners, including Iraq,\nIsrael, Jordan, Lebanon, and Turkey, all of which border Syria and have had\nto deal with unrest from the conflict. Rand Corporation, Research Brief, The\nConflict in Syria: Understanding and Avoiding Regional Spillover Effects\nat 1 (2014), https://www.rand.org/content/dam/rand/pubs/research_briefs/\nRB9700/RB9785/RAND_RB9785.pdf; see also generally Le\xc3\xafla Vignal, The\n4 The U.S. deployment against ISIS is supported by congressional authorization pursuant\nto the 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, and\nthe Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No.\n107-243, 116 Stat. 1498. U.S. actions to counter ISIS in Syria are therefore based upon a\ndifferent legal footing than are the attacks against Syria\xe2\x80\x99s chemical-weapons facilities.\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nChanging Borders and Borderlands of Syria in a Time of Conflict, 93 Int\xe2\x80\x99l\nAffairs 809 (2017). In addition, the power vacuum in Syria has provided an\nopportunity for Russia and Iran to deepen their presence in the region and\nengage in activities that have had a directly adverse impact on the interests and\nsecurity of the United States and its allies in the area. See President Donald J.\nTrump, National Security Strategy of the United States of America at 49 (Dec.\n2017), https://www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final12-18-2017-0905.pdf (\xe2\x80\x9cRival states are filling vacuums created by state\ncollapse and prolonged regional conflict.\xe2\x80\x9d).\nThe Syrian regime\xe2\x80\x99s continued attacks on civilians have also contributed to\nthe displacement of civilians and thus deepened the instability in the region.\nAccording to the Director of National Intelligence, as of October 2017, more\nthan 5 million Syrian refugees had fled to neighboring countries and more\nthan 6 million were displaced internally. See Worldwide Threat Assessment at\n21; see also Arwa Damon and Gul Tuysuz, CNN, Survivors of a Chemical\nAttack in Syria Tell Their Stories for the First Time (Apr. 16, 2018), https://\nwww.cnn.com/2018/04/15/middleeast/douma-chemical-attack-survivorsstories-arwa-damon-intl/index.html (interviewing individuals at a refugee\ncamp who survived the chemical-weapons attack on Douma). These largescale population movements have added to unrest throughout the region. Cf.\nLibya Deployment at *11 (explaining that the flight of civilians to neighboring\ncountries was \xe2\x80\x9cdestabilizing the peace and security of the region\xe2\x80\x9d (internal\nquotation marks omitted)).\nIn directing the strikes, the President also relied on the national interest in\nmitigating a humanitarian crisis. In analyzing proposed military operations\nin Iraq designed to prevent genocidal acts against the Yazidis and otherwise\nto protect civilians at risk, we advised that humanitarian concerns could\nprovide a basis for the President\xe2\x80\x99s use of force under his constitutional\nauthority. See Iraq Deployment at 20\xe2\x80\x9324. Given the role of the United States\nin the international community and the humanitarian interests of its people,\nPresidents have on many occasions deployed troops to prevent or mitigate\nhumanitarian disasters. See, e.g., Letter to Congressional Leaders on Deployment of United States Armed Forces to Haiti (Sept. 18, 1994), 2 Pub.\nPapers of Pres. William J. Clinton 1572, 1572 (1994) (\xe2\x80\x9cThe deployment of\nU.S. Armed Forces into Haiti is justified by United States national security\ninterests\xe2\x80\x9d including \xe2\x80\x9cstop[ping] the brutal atrocities that threaten tens of\nthousands of Haitians\xe2\x80\x9d); Letter to Congressional Leaders Reporting on the\nCommencement of Military Operations Against Libya (Mar. 21, 2011),\n14\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\n1 Pub. Papers of Pres. Barack Obama 280, 280 (2011) (notifying Congress\nof the commencement of operations \xe2\x80\x9cto prevent a humanitarian catastrophe\xe2\x80\x9d).\nIn some cases, humanitarian concerns have been a significant, or even the\nprimary, interest served by U.S. military operations. In 1992, when President\nGeorge H.W. Bush announced that he had ordered the deployment of \xe2\x80\x9ca\nsubstantial American force\xe2\x80\x9d to Somalia during a widespread famine, he\ndescribed it as \xe2\x80\x9ca mission that can ease suffering and save lives.\xe2\x80\x9d Address to\nthe Nation on the Situation in Somalia (Dec. 4, 1992), 2 Pub. Papers of\nPres. George Bush 2174, 2174\xe2\x80\x9375 (1992\xe2\x80\x9393); see also id. at 2175 (\xe2\x80\x9cLet me\nbe very clear: Our mission is humanitarian[.]\xe2\x80\x9d); Somalia Deployment, 16\nOp. O.L.C. at 6 (\xe2\x80\x9cI am informed that the mission of those troops will be to\nrestore the flow of humanitarian relief to those areas of Somalia most affected by famine and disease[.]\xe2\x80\x9d). Similarly, military intervention in Bosnia\nincluded the establishment of a no-fly zone, maintained for roughly twoand-a-half years, in support of a humanitarian air drop. Daniel L. Haulman,\nThe United States Air Force and Bosnia, 1992\xe2\x80\x931995, Air Power History 24,\n35 (2013); Letter to Congressional Leaders Reporting on the No-Fly Zone in\nBosnia-Herzegovina (Oct. 13, 1993), 2 Pub. Papers of Pres. William J. Clinton 1740, 1741 (1993) (\xe2\x80\x9c[T]he no-fly zone enforcement operations have\nbeen militarily effective and have reduced potential air threats to our humanitarian airlift and airdrop flights.\xe2\x80\x9d); Address Before a Joint Session of the\nCongress on the State of the Union (Jan. 25, 1994), 1 Pub. Papers of Pres.\nWilliam J. Clinton 126, 132 (1994) (noting the continuation of the \xe2\x80\x9clongest\nhumanitarian air lift in history in Bosnia\xe2\x80\x9d); Address to the Nation on Implementation of the Peace Agreement in Bosnia-Herzegovina (Nov. 27, 2995),\n2 Pub. Papers of Pres. William J. Clinton 1784, 1785 (1995) (\xe2\x80\x9cWe used our\nairpower to conduct the longest humanitarian airlift in history and to enforce\na no-fly zone that took the war out of the skies.\xe2\x80\x9d) (\xe2\x80\x9cClinton Address to the\nNation\xe2\x80\x9d). President Clinton also framed U.S. peacekeeping efforts in humanitarian terms. Clinton Address to the Nation at 1784 (\xe2\x80\x9cIn fulfilling this\nmission, we will have the chance to help stop the killing of innocent civilians, especially children[.]\xe2\x80\x9d).\nThe Syrian regime\xe2\x80\x99s use of chemical weapons has contributed to the ongoing humanitarian crisis in Syria. As discussed above, civilians fleeing\nfrom the strikes become refugees needing assistance. See Carla E. Humud et\nal., Cong. Research Serv., RL33487, Armed Conflict in Syria: Overview and\nU.S. Response 19 (Apr. 18, 2018) (explaining that 13.1 million people in\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nSyria were in need of humanitarian assistance as of early 2018, more than\ntwo-thirds of the country\xe2\x80\x99s 18 million people). Internally displaced persons\nin Syria often lack access to basic services or medical care, see World\nHealth Organization, Syrian Arab Republic Humanitarian Response Plan\n2018, http://www.who.int/emergencies/response-plans/2018/syria/en/ (last\nvisited May 30, 2018), difficulties that are heightened for victims of chemical-weapons attacks. But even where the attacks do not displace civilians,\nthe nature of chemical weapons alone makes their use a humanitarian issue.\nSee Remarks on Syria Operations at 1 (\xe2\x80\x9cThe evil and the despicable attack\nleft mothers and fathers, infants and children, thrashing in pain and gasping\nfor air. These are not the actions of a man; they are crimes of a monster\ninstead.\xe2\x80\x9d). As the President explained after the Syrian strike, \xe2\x80\x9c[c]hemical\nweapons are uniquely dangerous not only because they inflict gruesome\nsuffering, but because even small amounts can unleash widespread devastation.\xe2\x80\x9d Id.\nIn carrying out these strikes, the President also relied on the national interest in deterring the use and proliferation of chemical weapons. The President previously relied upon this interest in ordering the April 2017 airstrike\nin response to the attack on Khan Shaykhun. See 2017 Congressional Notification (stating that the President directed a strike on the Shayrat military\nairfield to \xe2\x80\x9cdegrade the Syrian military\xe2\x80\x99s ability to conduct further chemical\nweapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and\naverting a worsening of the region\xe2\x80\x99s current humanitarian catastrophe\xe2\x80\x9d).\nWhile we are unaware of prior Presidents justifying U.S. military actions\nbased on this interest as a matter of domestic law, we believe that it is consistent with those that have justified previous uses of force. The United\nStates has long and consistently objected to the use and proliferation of\nchemical weapons. See Protocol for the Prohibition of the Use in War of\nAsphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of\nWarfare, adopted June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65; The Axis Is\nWarned Against the Use of Poison Gas (June 8, 1948), Pub. Papers of Pres.\nFranklin D. Roosevelt 242, 243 (1943) (\xe2\x80\x9cUse of [chemical] weapons has\nbeen outlawed by the general opinion of civilized mankind.\xe2\x80\x9d). For nearly\nthirty years, Presidents have repeatedly declared the proliferation of chemical weapons to be a national emergency. See Notice Regarding the Continuation of the National Emergency with Respect to the Proliferation of\nWeapons of Mass Destruction, 82 Fed. Reg. 51,971 (Nov. 6, 2017) (most\n16\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nrecent order continuing in effect an emergency first declared in Executive\nOrder 12735 of Nov. 16, 1990). In 1997, the United States ratified the\nChemical Weapons Convention, which prohibits the use, development,\nproduction, and retention of chemical weapons. See Remarks on Senate\nRatification of the Chemical Weapons Convention and an Exchange with\nReporters (Apr. 24, 1997), 1 Pub. Papers of Pres. William J. Clinton 480,\n480 (1997) (stating that ratification will permit the end of \xe2\x80\x9ca century that\nbegan with the horror of chemical weapons in World War I much closer to\nthe elimination of those kinds of weapons\xe2\x80\x9d). And Congress cited Iraq\xe2\x80\x99s\ndevelopment of chemical weapons as one of the reasons in support of authorizing the use of military force against Iraq in 2002. See Authorization for\nUse of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243,\n116 Stat. 1498, 1498 (\xe2\x80\x9cWhereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led to the discovery that Iraq had large stockpiles of chemical weapons\xe2\x80\x9d).\nThe United States has also repeatedly joined international condemnation\nof Syria\xe2\x80\x99s use of chemical weapons. See, e.g., S.C. Res. 2319 (Nov. 17,\n2016) (\xe2\x80\x9cCondemning again in the strongest terms any use of any toxic\nchemicals as a weapon in the Syrian Arab Republic and expressing alarm\nthat civilians continue to be killed and injured by toxic chemicals as weapons in the Syrian Arab Republic\xe2\x80\x9d); S.C. Res. 2235 (Aug. 7, 2015) (\xe2\x80\x9cCondemning in the strongest terms any use of any toxic chemical as a weapon in\nthe Syrian Arab Republic and noting with outrage that civilians continue to\nbe killed and injured by toxic chemicals as weapons in the Syrian Arab\nRepublic, Reaffirming that the use of chemical weapons constitutes a serious\nviolation of international law, and stressing again that those individuals\nresponsible for any use of chemical weapons must be held accountable\xe2\x80\x9d);\nS.C. Res. 2209 (Mar. 6, 2015) (\xe2\x80\x9cReaffirming that the use of chemical weapons constitutes a serious violation of international law and reiterating that\nthose individuals responsible for any use of chemical weapons must be held\naccountable\xe2\x80\x9d); S.C. Res. 2118 (Sept. 2017, 2013) (\xe2\x80\x9cDetermining that the use\nof chemical weapons in the Syrian Arab Republic constitutes a threat to\ninternational peace and security\xe2\x80\x9d).\nDespite near-global condemnation, a small number of state and non-state\nactors persist in using chemical weapons, and Syria\xe2\x80\x99s continued use of them\n\xe2\x80\x9cthreatens to desensitize the world to their use and proliferation, weaken\nprohibitions against their use, and increase the likelihood that additional\nstates will acquire and use these weapons.\xe2\x80\x9d USG Assessment. Last year\xe2\x80\x99s\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nU.S. strike did not fully dissuade the Syrian regime from continuing to use\nchemical weapons. And Russia recently used a nerve agent in an attempted\nassassination in the United Kingdom, \xe2\x80\x9cshowing an uncommonly brazen\ndisregard for the taboo against chemical weapons.\xe2\x80\x9d Id.; see also United\nStates Mission to the United Nations, Ambassador Haley Delivers Remarks\nat a UN Security Council Briefing on Chemical Weapons Use in Syria\n(Apr. 4, 2018), https://usun.state.gov/highlights/8366 (\xe2\x80\x9cWhen we let one\nregime off the hook, others take notice. The use of nerve agents in Salisbury\nand Kuala Lumpur proves this point and reveals a dangerous trend. We are\nrapidly sliding backward, crossing back into a world that we thought we\nleft.\xe2\x80\x9d). ISIS has also acquired and deployed chemical weapons. See Worldwide Threat Assessment at 8. The United States has a weighty interest in\ndeterring the use of these weapons.\nIn sum, the President here was faced with a grave risk to regional stability, a serious and growing humanitarian disaster, and the use of weapons\nrepeatedly condemned by the United States and other members of the international community. In such circumstances, the President could reasonably\nconclude that these interests provided a basis for airstrikes on facilities that\nsupport the regime\xe2\x80\x99s use of chemical weapons. See Attack in Korea, 23\nDep\xe2\x80\x99t of State Bull. at 174 (\xe2\x80\x9cThe United States has, throughout its history,\nupon orders of the Commander in Chief to the Armed Forces and without\ncongressional authorization, acted to prevent violent and unlawful acts in\nother states from depriving the United States and its nationals of the benefits\nof such peace and security.\xe2\x80\x9d). We believe that these interests fall comfortably within those that our Office has previously relied upon in concluding\nthat the President had appropriately exercised his authority under Article II,\nand we so advised prior to the Syrian strikes.\nB.\nWe next considered whether the President could expect the Syrian operations to rise to the level of a war requiring congressional authorization. Such\na determination \xe2\x80\x9crequires a fact-specific assessment of the \xe2\x80\x98anticipated\nnature, scope, and duration\xe2\x80\x99 of the planned military operations.\xe2\x80\x9d Libya\nDeployment at *8 (quoting Haiti Deployment I, 18 Op. O.L.C. at 179). As\nwe have previously explained, military operations will likely rise to the level\nof a war only when characterized by \xe2\x80\x9cprolonged and substantial military\nengagements, typically involving exposure of U.S. military personnel to\nsignificant risk over a substantial period.\xe2\x80\x9d Id.\n18\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nWe have found that previous military deployments did not rise to the level\nof a war even where the deployment was substantial. For example, the\nUnited States spent two years enforcing a no-fly zone, protecting United\nNations (\xe2\x80\x9cUN\xe2\x80\x9d) peacekeeping forces, and securing safe areas for civilians in\nBosnia, all without congressional authorization. See Bosnia Deployment, 19\nOp. O.L.C. at 329 & n.2 (noting the plan to deploy 20,000 ground troops to\nBosnia as well as additional troops to surrounding areas in a support capacity); see also Libya Deployment at *9; (noting \xe2\x80\x9cone two-week operation in\nwhich NATO attacked hundreds of targets and the United States alone flew\nover 2300 sorties\xe2\x80\x9d). Similarly, in 1994, we approved a plan to deploy as\nmany as 20,000 troops to Haiti. Haiti Deployment I, 18 Op. O.L.C. at 179\nn.10. We also approved a U.S.-led air campaign in Libya in 2011 that lasted\nfor over a week and involved the use of over 600 missiles and precisionguided munitions. See DoD News Briefing with Vice Adm. Gortney from\nthe Pentagon on Libya Operation Odyssey Dawn (Mar. 28, 2011), http://\narchive.defense.gov/transcripts/transcript.aspx?transcriptid=4803. In none of\nthese cases did we conclude that prior congressional authorization was\nnecessary.\nIn reviewing these deployments, we considered whether U.S. forces were\nlikely to encounter significant armed resistance and whether they were likely\nto \xe2\x80\x9csuffer or inflict substantial casualties as a result of the deployment.\xe2\x80\x9d\nHaiti Deployment I, 18 Op. O.L.C. at 179. In this regard, we have looked\nclosely at whether an operation will require the introduction of U.S. forces\ndirectly into the hostilities, particularly with respect to the deployment of\nground troops. The deployment of ground troops \xe2\x80\x9cis an essentially different,\nand more problematic, type of intervention,\xe2\x80\x9d given \xe2\x80\x9cthe difficulties of disengaging ground forces from situations of conflict, and the attendant risk that\nhostilities will escalate.\xe2\x80\x9d Bosnia Deployment, 19 Op. O.L.C. at 333. In such\ncircumstances, \xe2\x80\x9carguably there is a greater need for approval at the outset for\nthe commitment of such troops to such situations.\xe2\x80\x9d Id.\nIn connection with reviewing the proposed peacekeeping operations in\nBosnia, we noted that U.S. forces enforcing the no-fly zone had \xe2\x80\x9cengaged in\ncombat,\xe2\x80\x9d including the destruction of three aircraft violating the no-fly ban\nand the downing of a fourth, and engaging Bosnian-Serb aircraft and gunners. See Bosnia Deployment, 19 Op. O.L.C. at 328 (also noting airstrikes in\nresponse to Serb air attacks threatening UN peacekeeping forces). We noted\nthat the peacekeeping force would require the deployment of 20,000 ground\ntroops to Bosnia, which would \xe2\x80\x9craise[] the risk that the United States\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nw[ould] incur (and inflict) casualties.\xe2\x80\x9d Id. at 333. Nonetheless, while \xe2\x80\x9ccombat conceivably may occur during the course of the operation,\xe2\x80\x9d we did not\nbelieve it was \xe2\x80\x9clikely that the United States [would] find itself involved in\nextensive or sustained hostilities.\xe2\x80\x9d Id. at 332\xe2\x80\x9333 (emphases added). In Somalia, we approved the introduction of U.S. combat-equipped forces to ensure\nthe protection of noncombatant forces involved in UN humanitarian relief.\nSee Somalia Deployment, 16 Op. O.L.C. at 10 (\xe2\x80\x9cIt is also essential to consider the safety of the troops to be dispatched as requested by Security\nCouncil Resolution No. 794. The President may provide those troops with\nsufficient military protection to insure that they are able to carry out their\nhumanitarian tasks safely and efficiently.\xe2\x80\x9d). And in approving the deployment of U.S. Marines to Haiti in 2004, we noted that it was \xe2\x80\x9cpossible that\nsome level of violence and instability will continue.\xe2\x80\x9d Haiti Deployment II,\n28 Op. O.L.C. at 34 (quoting Presidential Power, 4A Op. O.L.C. at 194);\nsee also Presidential Power, 4A Op. O.L.C. at 187 (\xe2\x80\x9cOperations of rescue\nand retaliation have also been ordered by the President without congressional authorization even when they involved hostilities.\xe2\x80\x9d). Thus, even in cases\ninvolving the deployment of ground troops, we have found that the expected\nhostilities would fall short of a war requiring congressional authorization.\nWith these precedents in mind, we concluded that the proposed Syrian\noperation, in its nature, scope, and duration, fell far short of the kinds of\nengagements approved by prior Presidents under Article II. First, in contrast\nwith some prior deployments, the United States did not plan to employ any\nU.S. ground troops, and in fact, no U.S. airplanes crossed into Syrian airspace. Where, as here, the operation would proceed without the introduction\nof U.S. troops into harm\xe2\x80\x99s way, we were unlikely to be \xe2\x80\x9cconfronted with\ncircumstances in which the exercise of [Congress\xe2\x80\x99s] power to declare war is\neffectively foreclosed.\xe2\x80\x9d Bosnia Deployment, 19 Op. O.L.C. at 333.\nSecond, the mission was sharply circumscribed. This was not a case\nwhere the military operation served an open-ended goal. Rather, the President selected three military targets with the aim of degrading and destroying\nthe Syrian regime\xe2\x80\x99s ability to produce and use chemical weapons. Mattis\nBriefing (statement of Secretary Mattis) (\xe2\x80\x9cEarlier today, President Trump\ndirected the U.S. military to conduct operations in consonance with our\nallies to destroy the Syrian regime\xe2\x80\x99s chemical weapons research[,] development and production capability.\xe2\x80\x9d); id. (\xe2\x80\x9cIt was done on targets that we\nbelieved were selected to hurt the chemical weapons program. We confined\nit to the chemical weapons-type targets. We were not out to expand this. We\n20\n\n\x0cApril 2018 Airstrikes Against Syrian Chemical-Weapons Facilities\n\nwere very precise and proportionate.\xe2\x80\x9d); id. (noting that \xe2\x80\x9cright now this is a\none-time shot\xe2\x80\x9d). And the strikes were planned to minimize casualties, further\ndemonstrating the limited nature of the operation. See DoD Briefing (statement of Lt. Gen. McKenzie). Those aspects both underscored the \xe2\x80\x9climited\nmission\xe2\x80\x9d and the fact that the operation was not \xe2\x80\x9caim[ed] at the conquest or\noccupation of territory nor even, as did the planned Haitian intervention, at\nimposing through military means a change in the character of a political\nr\xc3\xa9gime.\xe2\x80\x9d Bosnia Deployment, 19 Op. O.L.C. at 332.\nThird, the duration of the planned operation was expected to be very\nshort. In fact, the entire operation lasted several hours, and the actual attack\nlasted only a few minutes. DoD Briefing (statement of Lt. Gen. McKenzie).\nStanding on its own, the attack on three Syrian chemical-weapons facilities was not the kind of \xe2\x80\x9cprolonged and substantial military engagement\xe2\x80\x9d\nthat would amount to a war. Libya Deployment at *8. We did not, however,\nmeasure the engagement based solely upon the contours of the first strike.\nRather, in evaluating the expected scope of hostilities, we also considered\nthe risk that an initial strike could escalate into a broader conflict against\nSyria or its allies, such as Russia and Iran. See Haiti Deployment I, 18 Op.\nO.L.C. at 179 (\xe2\x80\x9cIn deciding whether prior Congressional authorization for\nthe Haitian deployment was constitutionally necessary, the President was\nentitled to take into account . . . the limited antecedent risk that United States\nforces would encounter significant armed resistance or suffer or inflict\nsubstantial casualties as a result of the deployment.\xe2\x80\x9d). But the fact that there\nis some risk to American personnel or some risk of escalation does not itself\nmean that the operation amounts to a war. See Cambodian Sanctuaries,\n1 Op. O.L.C. Supp. at 331; Bosnia Deployment, 19 Op. O.L.C. at 332. We\ntherefore considered the likelihood of escalation and the measures that the\nUnited States intended to take to minimize that risk.\nWe were advised that escalation was unlikely (and reviewed materials\nsupporting that judgment), and we took note of several measures that had\nbeen taken to reduce the risk of escalation by Syria or Russia. The targets\nwere selected because of their particular connections to the chemicalweapons program, underscoring that the strikes sought to address the extraordinary threat posed by the use of chemical weapons and did not seek to\nprecipitate a regime change. See DoD Briefing (statement of Ms. White)\n(\xe2\x80\x9cThis operation does not represent a change in U.S. policy, nor an attempt\nto depose the Syrian regime. The strikes were [a] justified, legitimate and\nproportionate response to the Syrian regime\xe2\x80\x99s continued use of chemical\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nweapons on its own people.\xe2\x80\x9d). The targets were chosen to minimize civilian\ncasualties, see Mattis Briefing (statement of Gen. Dunford) (\xe2\x80\x9c[W]e did not\nselect those that had a high risk of collateral damage, and specifically a high\nrisk of civilian casualties.\xe2\x80\x9d), and the strikes took place at a time that further\nreduced the threat to civilians, see DoD Briefing (statement of Lt. Gen.\nMcKenzie) (\xe2\x80\x9cWe also chose to strike it [at] . . . 4:00 in the morning local\ntime, so we weren\xe2\x80\x99t trying to kill a lot of people on the objective, and so we\nstruck at a different time of the day.\xe2\x80\x9d), again reducing the likelihood that\nSyria would retaliate. The targets were also chosen to minimize risk to\nRussian soldiers, and deconfliction processes were used, two steps that\nreduced the possibility that Russia would respond militarily. See Mattis\nBriefing (statement of Gen. Dunford) (\xe2\x80\x9c[W]e specifically identified these\ntargets to mitigate the risk of Russian forces being involved, and we used\nour normal deconfliction channels\xe2\x80\x94those were active this week\xe2\x80\x94to work\nthrough the airspace issue and so forth.\xe2\x80\x9d). Given the absence of ground\ntroops, the limited mission and time frame, and the efforts to avoid escalation, the anticipated nature, scope, and duration of these airstrikes did not\nrise to the level of a \xe2\x80\x9cwar\xe2\x80\x9d for constitutional purposes.\nIV.\nFor the foregoing reasons, we concluded that the President had the constitutional authority to carry out the proposed airstrikes on three Syrian\nchemical-weapons facilities. The President reasonably determined that this\noperation would further important national interests in promoting regional\nstability, preventing the worsening of the region\xe2\x80\x99s humanitarian catastrophe,\nand deterring the use and proliferation of chemical weapons. Further, the\nanticipated nature, scope, and duration of the operations were sufficiently\nlimited that they did not amount to war in the constitutional sense and therefore did not require prior congressional approval.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n22\n\n\x0c'


b'Presidential Action on Joint Resolution\nDisapproving Pay Raise\nUnder the Federal Salary Act of 1987, a pay raise recommended by the President becomes\neffective as law unless it is disapproved by a joint resolution \xe2\x80\x9cagreed to by the Congress\xe2\x80\x9d\nprior to the end of the 30-day period beginning when the President submits his recom\xc2\xad\nmendation. The Act thus requires passage of the joint resolution by both Houses of\nCongress, but not signature by the President, prior to the end of the period.\nThe Constitution requires that the joint resolution disapproving the pay raise be presented\nto the President, and he is entitled to the constitutionally prescribed 10-day period to\nconsider it. If the President signs the joint resolution dunng this period, the pay raise is\ndisapproved. If the President vetoes the joint resolution (and the veto is not overridden),\nthe pay raise is effective.\nWith respect to Article III judges, the President\xe2\x80\x99s approval of the joint resolution after the\n30-day period does not offend the Compensation Clause or section 2 of the joint resolu\xc2\xad\ntion, since as a practical matter no increase in pay would vest m the judges prior to the\nexpiration of the period.\n\nFebruary 7, 1989\nM emorandum O pinion\n\nfor the\n\nAttorney G eneral\n\nPursuant to the Federal Salary Act of 1967, as amended, 2 U.S.C. \xc2\xa7\xc2\xa7\n351-361 (the \xe2\x80\x9cAct\xe2\x80\x9d), the President transmitted to the Congress on January\n9, 1989, recommendations for the increase in salaries of certain members\nof the executive, legislative, and judicial branches. Pursuant to 2 U.S.C. \xc2\xa7\n359(1), this recommendation is to become effective as law \xe2\x80\x9cunless [the]\nrecommendation is disapproved by a joint resolution agreed to by the\nCongress not later than the last day of the 30-day period which begins on\nthe date of [sic] which such recommendations are transmitted to the\nCongress.\xe2\x80\x9d\nThe Senate voted in favor of a resolution of disapproval of the\nPresident\xe2\x80\x99s recommendations, S.J. Res. 7, 101st Cong., 1st Sess. (1989),\non February 2, 1989. See 135 Cong. Rec. 1461 (1989). Today, the last day\nof the thirty-day period following receipt of the President\xe2\x80\x99s recommenda\xc2\xad\ntions, we understand that the House of Representatives either has, or will\nvote, in favor of S.J. Res. 7, or another resolution of disapproval, which\nwill then be transmitted to the Senate for its approval. Under the Act, the\njoint resolution must be \xe2\x80\x9cagreed to by Congress\xe2\x80\x9d within the thirty-day\nperiod. The question has arisen whether this joint resolution must also be\nsigned by the President within the thirty-day period.\n50\n\n\x0cPrimarily, we think this question is answered by the plain language of\nthe Act. By its terms, the Act requires agreement by both Houses of\nCongress prior to the expiration of the thirty-day period, not signature by\nthe President. Thus, by its express terms, the Act is stated as a limitation\non Congress, not the President. This interpretation is also supported by\nthe Senate Committee report which, in describing the effect of this lan\xc2\xad\nguage, states: \xe2\x80\x9cThe Congress will have 30 days to pass a joint resolution\ndisapproving those recommendations.\xe2\x80\x9d S. Rep. No. 210, 99th Cong., 1st\nSess. 25 (1985) (emphasis added). Putting to one side for the moment the\nserious constitutional question which would be presented by a purported\nlimitation on the President\xe2\x80\x99s constitutionally-defined period of consider\xc2\xad\nation for a joint resolution, had Congress intended to so limit the\nPresident, it presumably would have used the term \xe2\x80\x9cenacted\xe2\x80\x9d rather than\n\xe2\x80\x9cagreed to.\xe2\x80\x9d As a matter of constitutional law, of course, no joint resolu\xc2\xad\ntion can be enacted into law without it being presented for the President\xe2\x80\x99s\nsignature or its constitutionally-prescribed equivalent.1In this regard, the\nAct speaks of disapproval by a joint resolution of Congress and the\nSupreme Court\xe2\x80\x99s decision in INS v. Chadha, 462 U.S. 919 (1983), leaves\nno doubt that any resolution must be presented to the President pursuant\nto Article I of the Constitution if it is to be effective as law.\nIt is because of the constitutional requirement of presentment as\naffirmed in Chadha, however, that we anticipate it will be argued that\nCongress should be understood as intending to require signature by the\nPresident prior to the expiration of the thirty-day period. Indeed, this\ninterpretation of the statute was advanced by both the House and Senate\ncounsel in litigation relating to the last pay raise under the Act, see\nHumphrey v. Baker, 665 F. Supp. 23 (D.D.C. 1987), affd, 848 F.2d 211\n(D.C. Cir.), cert denied, 488 U.S. 966 (1988), although neither the district\nnor appellate court passed on the question. See 665 F. Supp. at 30 n.7. For\nthe reason stated above, we do not believe that this argument will prevail\nin litigation. As already indicated, we think this argument is incorrect\nbecause of the literal language of the Act. However, even if one were to\nadmit ambiguity in the Act\xe2\x80\x99s meaning, we question whether Congress can\nby statute deprive the President of the ten-day period of consideration\nafforded to him by Article I, Section 7 of the Constitution. In short, the\nAct by its express terms only states a thirty-day limitation applicable to\nCongress. This thirty-day limitation cannot vitiate either the Constitu\xc2\xad\ntion\xe2\x80\x99s requirement that a joint resolution be presented to the President or\nthe President\xe2\x80\x99s ten-day period of consideration.2\n1 Presidential signature is not the only method by which a bill becomes law under Article I of the\nConstitution In addition, a bill becomes law if (absent an ac^joumment of Congress) the President does\nnot return to Congress the bill within ten days, or if he does return it with his objection, his objection is\novemdden by a two-thirds vote of each house U S Const, art. 1, \xc2\xa7 7, cl 2. In this memorandum, howev\xc2\xad\ner, we use \xe2\x80\x9csignature\xe2\x80\x9d as a shorthand reference for the three methods by which a bill becomes law.\n51\n\n\x0cNonetheless, given the stakes involved, if the President does not sign\nthe joint resolution today within the 30-day period, we believe litigation\nis likely. Accordingly, as a matter of prudence, if the President wishes to\navoid litigation over the pay raise, however unmeritorious, we recom\xc2\xad\nmend that he sign the joint resolution of disapproval before midnight\ntonight.\nAs we write this, we have not been advised of the exact language of the\nfinal enrolled joint resolution. In this regard, we are unaware if it incor\xc2\xad\nporates section 2 of S.J. Res. 7, which contains its own effective date pro\xc2\xad\nvisions. Section 2(a)(1) of S.J. Res. 7 provided that \xe2\x80\x9cif the date of the\nenactment of this resolution is on or after February 8, 1989, the rates of\npay for all offices and positions increased by the recommendations,\xe2\x80\x9d\nshall revert to their prior levels. But it adds the proviso in section\n2(a)(2)(B) that: \xe2\x80\x9c[t]he provisions of [section 1] and [section 2] shall not\napply to reduce the rate of pay of any judge or justice appointed pursuant\nto article III of the Constitution of the United States.\xe2\x80\x9d\nThe question raised by section 2 of S.J. Res. 7 is \xe2\x80\x94 if the joint resolution\nis signed by the President, and thus \xe2\x80\x9cenacted\xe2\x80\x9d into law on or after\nFebruary 8 (after the thirty-day period)\xe2\x80\x94 will Article III judges be entitled\nto the pay raise by virtue of section 2(a)(2)(B). We think not. Accepting\nour initial conclusion that the pay raise will not go into effect even if the\nPresident signs the disapproval resolution (which is section 1 of S.J. Res.\n7) after the thirty-day period has expired, the pay of Article IQ judges will\nnever have been \xe2\x80\x9cincreased,\xe2\x80\x9d3 and thus the joint resolution disapproving\nthe pay raise can be applied to Article III judges without \xe2\x80\x9creduc[ing]\xe2\x80\x9d their\nrate of pay as forbidden by section 2(a)(2)(B) of S.J. Res. 7.\nIn conclusion, the thirty-day limitation in the Act is by its terms applic\xc2\xad\nable only to Congress. Moreover, the Constitution requires that the joint\n2 This interpretation is not inconsistent with section 359(2), which provides that the effective date of\nthe pay increase in section 359(1) shall be the first day of the first pay period beginning after the close\nof the thirty-day period. It is true that if the thirty-day penod ends just before the beginning of a pay peri\xc2\xad\nod, the President might not have acted on a joint resolution on the first day of the first pay penod after\nCongress agrees to the joint resolution. But there is no reason a pay increase cannot be retroactive to an\nearlier date, should the President determine to disapprove the joint resolution.\n3 We understand that the next applicable pay penod for Article 111judges begins March 1, 1989. Under\nUnited Stales v. Will, a judge\xe2\x80\x99s salary increase \xe2\x80\x9cVests\xe2\x80\x99 for purposes of the Compensation Clause only\nwhen it takes effect as part of the compensation due and payable to Article III judges \xe2\x80\x9d 449 U.S 200, 229\n(1980) (emphasis added). Because section 359(2) of the Act provides that the recommended pay increas\xc2\xad\nes do not become effective until the first day of the first pay penod after expiration of the thirty days, we\nread United States v. WiU to mean that no vesting within the meaning of the Compensation Clause of the\nConstitution, Article III, Section 1, would occur so long as the judges\xe2\x80\x99 raises did not become effective\nconclusively or were rescinded pnor to March 1, 1989.\nEven were the judges\xe2\x80\x99 pay penod not March 1, 1989, but rather a date preceding the date on which the\nPresident signed the bill, we doubt that the judges would constitutionally be entitled to receive a raise\nunder the Compensation Clause. While the Act designates the pay period on which the raises are to take\neffect, this designation must be purely for accounting purposes to be consistent with the Supreme Court\xe2\x80\x99s\ndecision in Chadha. Consistent with Chadha, after the passage of the joint resolution, neither the judges\nnor anyone else would be entitled to a pay raise unless and until the President vetoed the joint resolution.\n52\n\n\x0cresolution be presented to the President, and we believe that the\nPresident is entitled to the prescribed ten-day period to consider it. If the\nPresident signs the joint resolution during this period, the pay raise is dis\xc2\xad\napproved. If the President vetoes the joint resolution (and the veto is not\noverridden), the pay raise is effective in accordance with section 359(2)\nof the Act. With respect to Article III judges, the President\xe2\x80\x99s approval of\nthe joint resolution after the thirty-day period does not offend the\nCompensation Clause or section 2 of S.J. Res. 7, since as a practical mat\xc2\xad\nter, we understand no increase in pay would vest in the judges prior to\nMarch 1, 1989.\nD ouglas W. Kjvuec\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n53\n\n\x0c'


b'Political Balance Requirement for the\nCivil Rights Commission\nIn appointing a new member to the United States Commission on Civil Rights, in order to comply with\nthe statutory requirement that \xe2\x80\x9c[n]ot more than 4 of the members shall at any one time be of the\nsame political party,\xe2\x80\x9d the President should look to the party affiliation of the other members at the\ntime the new member is appointed.\n\nDecember 6, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT\nYou have asked for our opinion concerning the proper interpretation of the\nstatutory provision that \xe2\x80\x9c[n]ot more than 4 of the members\xe2\x80\x9d of the United States\nCommission on Civil Rights (\xe2\x80\x9cCommission\xe2\x80\x9d) \xe2\x80\x9cshall at any one time be of the\nsame political party.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1975(b) (2000). Specifically, you have asked\nwhether, in the appointment of a new member to the Commission, the relevant\nconsideration is the party affiliation of the other members at the time the new\nmember is appointed (which would take into account any changes in party\naffiliation by those other members after their appointment to the Commission), or\nwhether it is the party affiliation of the other members at the time those other\nmembers were appointed (which would not take into account any such postappointment changes in party affiliation). We conclude that the plain language of\nthe statute makes clear that the relevant consideration is the party affiliation of the\nother members at the time the new member is appointed.\nThe Commission consists of eight members, of whom the President appoints\nfour and the President pro tempore of the Senate and the Speaker of the House of\nRepresentatives each appoint two. Id. \xc2\xa7 1975(b). The statute provides that \xe2\x80\x9c[n]ot\nmore than 4 of the members shall at any one time be of the same political party.\xe2\x80\x9d\nId. It also provides that, of the two members appointed by the President pro\ntempore of the Senate, \xe2\x80\x9cnot more than one shall be appointed from the same\npolitical party.\xe2\x80\x9d Id. \xc2\xa7 1975(b)(2). The statute imposes the same requirement for the\nappointees of the Speaker of the House. Id. \xc2\xa7 1975(b)(3).\nBy its terms, the provision that \xe2\x80\x9c[n]ot more than 4 of the members shall at any\none time be of the same political party\xe2\x80\x9d applies at all times.1 This is in keeping\nwith its apparent purpose of maintaining some degree of political balance on the\nCommission. See 140 Cong. Rec. 27,216 (Oct. 3, 1994) (statement of Rep.\nEdwards) (the Commission is a \xe2\x80\x9cbipartisan, independent Federal factfinding\nagency\xe2\x80\x9d). And this means that the relevant consideration when a new member is\nappointed is the party affiliation of the other members at the time the new member\nis appointed.\n1\nWe do not address what the appropriate remedy would be, should a change in affiliation result in\nmore than four members from the same political party.\n\n295\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThis conclusion is reinforced by the contrast between the \xe2\x80\x9cat any one time\xe2\x80\x9d\nlanguage in the provision at issue and the two appearances of the \xe2\x80\x9cappointed from\nthe same political party\xe2\x80\x9d formulation in other provisions of the same statute\ndealing with party affiliation. The requirements that, of the two members appointed by each of the congressional leaders, \xe2\x80\x9cnot more than one shall be appointed\nfrom the same political party\xe2\x80\x9d expressly refer to party affiliation at the time of\nappointment. We addressed a similar issue in a Memorandum for Dudley H.\nChapman, Associate Counsel to the President, from Leon Ulman, Acting Assistant\nAttorney General, Office of Legal Counsel, Re: The Status of Members of the\nBoard of Trustees of the Woodrow Wilson International Center for Scholars\n(June 27, 1975) (\xe2\x80\x9cStatus of Members\xe2\x80\x9d). There, the statute required that certain\nmembers of the Board of Trustees of the Woodrow Wilson International Center\nfor Scholars be \xe2\x80\x9cappointed\xe2\x80\x9d or \xe2\x80\x9cchosen\xe2\x80\x9d \xe2\x80\x9cfrom\xe2\x80\x9d private life. See 20 U.S.C.\n\xc2\xa7 80f(b)(8), (d), (e) (2000). \xe2\x80\x9cThe implication,\xe2\x80\x9d we wrote, \xe2\x80\x9cis that while Congress\nwas clearly concerned with the station from which a given trustee is appointed, it\nwas not concerned with the problem of a trustee who after appointment joins the\ngovernment.\xe2\x80\x9d Status of Members at 1. We noted that Congress elsewhere had\nprovided that a member of a different board, upon a change of status, would lose\nhis position, but had chosen not to use that language for trustees of the Woodrow\nWilson International Center for Scholars. Here, too, the \xe2\x80\x9cappointed from the same\npolitical party\xe2\x80\x9d language is tied to the time of appointment, not to subsequent\nservice, 42 U.S.C. \xc2\xa7 1975(b)(2), (3), and a change in the political affiliation of\nthese appointees therefore would not implicate that requirement.\nThe contrast in language between the \xe2\x80\x9cappointed from the same political party\xe2\x80\x9d\nformulation and the \xe2\x80\x9cat any one time be of the same political party\xe2\x80\x9d formulation\nunderscores the differences in the relevant times for the provisions. \xe2\x80\x9c\xe2\x80\x98[W]hen the\nlegislature uses certain language in one part of the statute and different language in\nanother, the court assumes different meanings were intended.\xe2\x80\x99\xe2\x80\x9d Sosa v. AlvarezMachain, 542 U.S. 692, 711 n.9 (2004) (quoting 2A Norman J. Singer, Statutes\nand Statutory Construction \xc2\xa7 46:06, at 194 (6th ed. 2000)). \xe2\x80\x9c[A]ppointed from the\nsame political party\xe2\x80\x9d clearly refers to party affiliation at the time of appointment;\n\xe2\x80\x9cat any one time be of the same political party\xe2\x80\x9d clearly is not limited to the time of\nappointment. Consequently, in appointing a new member, in order to comply with\nthe requirement that \xe2\x80\x98[n]ot more than 4 of the members shall at any one time be of\nthe same political party,\xe2\x80\x9d the President should look to the party affiliation of the\nother members at the time the new member is appointed.\nDANIEL L. LEVIN\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n296\n\n\x0c'