b'June 10, 1977\n\n77-36\n\nMEMORANDUM OPINION FOR THE\nACTING GENERAL COUNSEL, FEDERAL\nENERGY ADMINISTRATION\nState Jurisdiction to Regulate Pollutant Emissions\n\nThis is in reply to your letter concerning the proposed oil tanker\nterminal that a major oil company seeks to operate at Long Beach,\nCalif. A major question that has arisen in a California Air Resources\nBoard administrative proceeding, is whether the State would have\n\xe2\x80\x9cjurisdiction and authority to regulate pollutant emissions from oil\ntankers using the proposed terminal, while such tankers are operating\nbeyond the 3-mile territorial limit of the State but are . . . within the\nSouth Coast Air Basin . . . [that is, within an area extending up to 12\nmiles from shore].\xe2\x80\x9d\n1. Introduction and Summary\nPreliminarily, it is necessary to distinguish between (1) the general\nquestion of the extent of California\xe2\x80\x99s authority or jurisdiction over\ntankers using the proposed terminal, and (2) the question of the validity\nof particular emission-control requirements which the State might seek\nto impose. We shall consider the former, but not the latter.1 Our views\nmay be summarized as follows: Regarding operations in the contiguous\nzone (i . e the area extending up to 12 miles from the shore) of Ships\nusing the proposed terminal, California would have some authority to\nprescribe and enforce air pollution controls. However, the State\xe2\x80\x99s au\xc2\xad\nthority would not be unlimited. The validity of a particular requirement\nor enforcement action would depend upon several factors. One require\xc2\xad\nment is that there be a sufficient connection between the regulated\nactivity and air quality within the State\xe2\x80\x99s geographic limits. Other\npertinent factors include feasibility and practical consequences (e.g.,\ncost), the relationship to Federal standards (e.g., safety standards pro\xc2\xad\nmulgated by the Coast Guard), and, in particular, action taken by the\n1 O ur discussion does touch upon certain o f the conditions proposed by the oil com pa\xc2\xad\nny, but w e do not attem pt to assess their validity. Issues concerning the various means o f\nenforcing the pollution-control requirem ents are also significant, but w e do not discuss\nthem.\n\n141\n\n\x0cU.S. Environmental Protection Agency (EPA) regarding the proposed\nterminal.\n2. Factual Background\nThe main purpose of the proposed terminal would be to accommo\xc2\xad\ndate tankers transporting crude oil from the North Slope of Alaska.\nT he bulk of the oil received at the terminal would then be sent, via\npipeline systems, to refineries in the Midwest and on the G ulf Coast.\nThe Los Angeles-Long Beach area, where the terminal would be\nbuilt, has severe air pollution problems. Before the project can proceed,\nit must be approved by State environmental authorities and by EPA.\nNow pending before the California Air Resources Board is the oil\ncompany\xe2\x80\x99s request for a construction permit. This proceeding is based\nupon State law. To date, EPA has not approved California\xe2\x80\x99s proce\xc2\xad\ndures for review, under the Clean Air Act, of new stationary sources of\nemissions. Such approval may be granted in the future, but, if it is not,\nthe oil company\xe2\x80\x99s ability to go forward will depend upon issuance of a\npermit by E PA ,2 as well as a State permit. Issuance of a permit by\nE PA will not occur until after issuance of a permit by the State; it is\npossible that the terms and conditions of the EPA permit would simply\nfollow those of the State permit.\nIn connection with the proceeding before the State agency, the oil\ncompany has proposed a set of conditions to deal with the problem of\nair pollution from the tankers. Some o f the conditions pertain to vessel\ndesign or equipment, e.g., ballast capacity (\xc2\xa7 1) and inert gas systems\n(\xc2\xa7 4). Others relate solely to tanker operations occurring within the\nport, e.g., unloading procedures (\xc2\xa7\xc2\xa7 3, 6). A third category consists of\nconditions which apply to operations occurring not only within the 3mile limit but also within an area extending as much as 12 miles from\nthe coast, e.g., ballasting operations (\xc2\xa7 1), prohibition on expulsion of\nhydrocarbon vapors (\xc2\xa7 2), and use of low sulfur fuel (\xc2\xa7 7).\nThe California authorities are reluctant to agree to the permit condi\xc2\xad\ntions proposed by the oil company unless the State is assured that it\nwould have authority to enforce them with respect to activities beyond\nthe 3-mile limit. Presumably, the State\xe2\x80\x99s concern relates only to the\nthird category o f conditions. The terminal will be within the territory\nof California so the extraterritorial issue is not raised by the rules\nconcerning unloading or other activities at the terminal itself. In addi\xc2\xad\ntion, to the extent that the rules involve vessel characteristics or equip\xc2\xad\nment (as opposed to operations), the extraterritorial question appears to\nbe irrelevant.\n3. Discussion\nThere are several types of conditions that may raise certain legal\nquestions. For example, one of the conditions would require that the\n\xe2\x80\x99 F o r the E P A regulation concerning the granting o f such perm its in California, see 40\nC F R 52.233.\n\n142\n\n\x0ctankers have ballast capacity of a certain type (\xc2\xa7 1); another would\nrequire the vessels to have an inert gas system or comparable equip\xc2\xad\nment (\xc2\xa7 4). Each of these matters is now addressed in Coast Guard\nregulations.3 Clearly, the issues of preemption and burdens on com \xc2\xad\nmerce apply generally to the proposed conditions.\nAnother point that should be mentioned is that pertinent laws are in\na process of change. Amendments to the Clean Air Act are now being\nconsidered in Congress.4\nIn March, President Carter sent to Congress a message concerning\noil pollution of the oceans. 13 Weekly Compilation of Presidential\nDocuments 408 (1977). He pointed out that he had directed the Secre\xc2\xad\ntary of Transportation to develop new regulations concerning oil tanker\nstandards, including the matters of segregated ballast and inert gas\nsystems. Proposed rules to this effect have been published in the Feder\xc2\xad\nal Register.5\nAnother pertinent bill, S. 682, the Tanker and Vessel Safety Act, was\nrecently passed by the Senate. See 123 Cong. Rec. S. 8823 (daily ed.,\nMay 27, 1977). The bill deals, in part, with design and operating\nstandards for all tankers entering U.S. ports. Probable jurisdiction was\nnoted in R ay v. Atlantic Richfield Co., 95 S. Ct. 1172 (1977), a case\nnow pending before the Supreme Court, which involves the preemptive\neffect of the Ports and Waterways Safety Act. Relevant changes in\ninternational law may result from the Law of the Sea Conference.\nThe developments mentioned above are pertinent because their out\xc2\xad\ncome may affect California\xe2\x80\x99s authority to regulate tanker operations.\nThe subjects we have addressed are solely issues of Federal law. We\ndid not look into questions of California law, e.g., the extent o f the\nauthority of the State regulatory bodies, or into the possible signifi\xc2\xad\ncance of contract or real estate law (Le., reliance on conditions set forth\nby the Port of Long Beach in its lease with the company, in addition to\nuse of the State\xe2\x80\x99s police power).\nAlthough we did not give separate attention to the existence of\nFederal authority to regulate the tanker operations in question, it is\nimportant to note that certain possible Federal limits upon the State\xe2\x80\x99s\nauthority\xe2\x80\x94for example, preemption\xe2\x80\x94have no application to the Feder\xc2\xad\nal Government. A related matter that could become significant is the\npossibility of State enforcement of federally prescribed pollution con\xc2\xad\ntrol requirements. See, e.g., \xc2\xa7 304 of the Clean Air Act, as amended, 42\n5 See 46 C F R 32.53 (inert gas system); 33 C F R 157.09 (segregated ballast). See also\nproposed amendm ents to the C oast G uard regulations set forth in 42 Fed. Reg. 24868\n(segregated ballast) and 24874 (inert gas system).\n4 R ecently, an am endm ent bearing directly upon the present issues w as introduced in\nthe H ouse o f Representatives, debated, and then w ithdraw n. See 123 Cong. Rec. H 506772 (daily ed., May 25, 1977). T h e sponsor stated that a similar am endm ent m ight be\noffered in the future. 123 Cong. Rec. H 5072 (daily ed., M ay 25, 1977) (R em arks o f\nRepresentative Miller).\n5 See footnote 3, supra.\n\n143\n\n\x0cU.S.C. 1857h-2, which authorizes the bringing of certain types of\n\xe2\x80\x9ccitizen suits.\xe2\x80\x9d\na.\n\nPreemption\n\n(1) The Clean Air Act\nOne question is whether the Clean A ir A ct furnishes a basis for\nregulating emissions from vessels. Your Office and EPA have taken the\nposition that it does, and we agree. See, Texas v. EPA, 499 F. 2d 289,\n316-317 (5th Cir. 1974).\nUnder the Clean Air A ct, EPA sets national ambient air quality\nstandards for widespread pollutants, such as hydrocarbons. \xc2\xa7 109, 42\nU.S.C. 1857c-4. The basic means of achieving compliance with stand\xc2\xad\nards is a State implementation plan. \xc2\xa7 110, 42 U.S.C. 1857c-5. The Act\nexpressly provides that \xe2\x80\x9cprimary responsibility for assuring air quality\nwithin . . . [its] geographic area\xe2\x80\x9d belongs to each State. \xc2\xa7 107, 42\nU.S.C. 1857c-2. If a State plan is inadequate in some respects, EPA is\nrequired to cure the deficiency by issuing its own regulation. As noted\npreviously, E PA has not approved California\xe2\x80\x99s procedure for review of\nnew sources and has promulgated a regulation providing for review by\nEPA.\nIt is clear that, with limited exceptions not pertinent here, the Clean\nA ir A ct does not preempt State authority, i.e., use of the State\xe2\x80\x99s police\npow er to impose standards regarding air pollution. The Act contains a\nprovision, \xc2\xa7 116, 42 U.S.C. 1957d\xe2\x80\x941 (1975 Supp.), which provides that\nthere is no such preemption, so long as the standard based upon State\nlaw is not less stringent than standards set forth in the Act.\nA ccording to your memorandum, E PA has stated that the conditions\nproposed by the oil company are not less stringent than standards EPA\nwould impose in connection with its review of the terminal. O f course,\nthe action ultimately taken by EPA will be highly significant. One\npossibility would be that, after issuance o f a permit by the California\nagency, E PA would issue a permit setting forth the same conditions.\nSuch action by E P A would lend substantial support to the action taken\nby the State agency. On the other hand, a finding by EPA that one or\nmore o f the State\xe2\x80\x99s conditions would not be sufficiently strict would\nprobably mean that any such condition would be revised.\n(2) Ports and Waterways Safety Act\nTitle I of the Ports and Waterways Safety Act of 1972 (PWSA)\nauthorizes the Coast Guard to establish vessel traffic control systems\nand to regulate certain types of vessel operations, in order to prevent\ndamage to vessels, bridges, and other structures and to protect the\nnavigable waters from environmental harm. 33 U.S.C 1221 (1975\nSupp.). More pertinent here is Title II, 46 U.S.C. 391a (1975 Supp.),\nwhich directs the Coast G uard to establish regulations concerning the\ndesign and operations of certain kinds of vessels, including oil tankers,\nin order to protect the navigable waters of the United States and the\n144\n\n\x0cresources of those waters and adjoining land. Such regulations have\nbeen issued. See 33 CFR 157.\nThe District Court in Atlantic Richfield Co. v. Evans, a case now\npending in the Supreme Court,8 held that the PWSA preempted the\nfield so as to render invalid Washington statutes regulating the size and\ndesign o f oil tankers operating in Puget Sound. We believe that even\nassuming the District Court correctly decided the Atlantic Richfield\ncase, the facts differ significantly from the present situation.\nHere, if a California permit containing the oil company\xe2\x80\x99s conditions is\nratified by EPA, the issue will not be preemption by the PWSA, but\nthe relationship between that statute and the Clean Air Act. C f, Texas\nv. EPA, supra. In the event of conflict or inconsistency between the\nCalifornia (or EPA) conditions and Coast Guard regulations, the result\nwill depend upon the specific facts. The task will be to reconcile the\ntwo statutes, bearing in mind that a basic objective of the Clean Air\nAct is to preserve the primary role of the States with respect to control\nof air pollution. C f, Huron Portland Cement Co. v. Detroit, 362 U.S. 440\n(1960).\nTo summarize, it does not appear that the subject in question\xe2\x80\x94\ncontrolling air pollution caused by oil tankers\xe2\x80\x94is preempted by the\nPWSA or any other Federal law.7 Still, depending upon the particular\nfacts, the PWSA or Coast Guard regulations issued under it might have\nthe effect of overriding certain requirements imposed by California.\nb.\n\nBurden on Commerce; Foreign Relations\n\nThe Huron Portland Cement Co., supra, case and others that deal with\nthe question whether State laws impose an unconstitutional burden on\ninterstate commerce support the view that the proposed California\nstandards would not be invalid on this ground. However, depending\nupon the factual record, certain of the requirements might be vulner\xc2\xad\nable. Congress has indicated its view that, with regard to control of air\npollution, variation from State to State is permissible. Even if the\nCalifornia standards were to impose requirements going beyond Coast\nGuard regulations and entailing substantial expense {e.g., additional\nequipment or changes in the vessels), California could assert that the\nseriousness of its air pollution problem justifies the measures it has\nadopted.\nThe next matter to be discussed is the possible impairment of the\nforeign relations of the United States, resulting from the application of\nthe California standards to foreign ships. In this regard, the decision in\nZschernig v. Miller, 389 U.S. 429 (1968) should not be given much\nweight. That case involved an Oregon statute relating to the ability of\n\xe2\x80\xa2T h e decision o f the D istrict C ourt, No. C -75-648-M (W .D . W ash. Sept. 23, 1976), is\nnot reported.\n7 A num ber o f o ther statutes deal w ith aspect o f oil tanker operations. See, e.g., the Oil\nPollution A ct, 33 U.S.C. 1002. T h ere are also international conventions relating to the\nsubject, e.g.. the International C onvention for the Safety o f Life at Sea, 16 U.S.T. 185.\n\n145\n\n\x0cnonresident aliens to inherit Oregon property; its provisions were such\nthat the State courts passed judgment upon the laws and practices of\nthe foreign country and the credibility of foreign officials. It was this\nkind of inquiry that caused the Supreme Court to find an unconsitutional intrusion by the State into the realm of foreign affairs. Here, in\ncontrast, the question would be one of applying to foreign ships State\nregulations o f general applicability. No question of discrimination\nagainst foreign ships would be presented.\nIn general, the police power of a State extends to foreign persons\nwithin its jurisdiction.8 See concurring opinion of Mr. Justice Harlan in\nZschernig, 389 U.S. at 459. An added factor here is that the California\nrequirements might have the imprimatur of EPA. Thus, we question\nw hether the Zschernig issue indicates the need for exemption or special\ntreatm ent of foreign ships.\nc.\n\nOperations Outside the 3-Mile Limit\n\nIt is our opinion that with respect to tankers using the proposed\nterminal, California has authority to regulate operations taking place\nbeyond the 3-mile limit. T his assumes, of course, that there is a proper\nnexus between those operatiofts and the quality of the air over the\nState\xe2\x80\x99s territory.\nIt is significant that the proposed conditions are limited to ships using\nthe terminal; the State does not seek to regulate all vessels coming\nwithin the contiguous zone.\nIt seems clear that Congress has the power to reach conduct occur\xc2\xad\nring in the contiguous zone, but one issue is whether the Clean Air Act\nwas intended to have that effect. A general rule of statutory construc\xc2\xad\ntion is that \xe2\x80\x9cthe legislation of Congress will not extend beyond the\nboundaries o f the United States unless a contrary legislative intent\nappears.\xe2\x80\x9d Steele v. Bulova Watch Co., 344 U.S. 280, 285 (1952).\nThe view that the Clean Air Act has extraterritorial effect (at least to\nthe extent involved here) rests upon the purpose of the statute, rather\nthan any specific provision or legislative history. Your Office and EPA\nhave concluded that the A c t does have that effect. We are in accord\nwith your view. Because the purpose of the State\xe2\x80\x99s requirements con\xc2\xad\ncerning operations in the 12-mile zone would be to protect the air over\nthe State\xe2\x80\x99s territory, not the air over the high seas. This would seem to\nbe a reasonable means of implementing the A ct.9\nIn addition, as pointed o u t above, the States retain the authority to\nexercise independent police power to deal with air pollution. If the\nrequisite nexus exists, that authority could be used to reach conduct in\n8 A n o th e r p ertinent consideration may be w hether a foreign-flag ship is ow ned or\ncon tro lled by U nited States persons. C f, Lauritzen v. Larsen, 345 U.S. 571 (1953).\n9 C learly, the present situation differs from one in w hich State A sought to regulate, on\nthe basis o f the C lean A ir Act, activities in S tate B. But see, Illinois.v. City o f Milwaukee,\n406 U.S. 91, 103-108 (1972) (w a te r pollution suit based on F ederal com m on law of\nnuisance).\n\n146\n\n\x0cthe contiguous zone. C f, Skiriotes v. Florida, 313 U.S. 69, 77 (1941).\nThis is another area where the issue of jurisdiction over foreign ships is\nraised. In our opinion, California possesses some regulatory authority\nover such ships.\nThe Federal Government may impose reasonable conditions upon\nforeign ships using its ports. C f, Cunard Steamship Co. v. Mellon, 262\nU.S. 100, 124 (1923) (application of prohibition law). Such conditions\nmay relate to conduct beyond the 3-mile limit.\nFor purposes of international law, the authority to impose such\nconditions may be exercised not only by the Federal Government, but\nalso by a State government. Therefore, assuming there is no conflict\nwith an applicable treaty (or Federal statute or regulation), California\nwould have authority to regulate foreign ships, as well as United States\nships, using the proposed terminal.\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n147\n\n\x0c'


b'(Slip Opinion)\n\nStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\nThe Anti-Terrorism Act of 1987 may not constitutionally bar the Palestine Liberation\nOrganization from maintaining its Washington, D.C. office and undertaking diplomatic\nactivities the Secretary of State wishes to authorize.\nSeptember 11, 2018\n\nMEMORANDUM OPINION FOR THE LEGAL ADVISER\nDEPARTMENT OF STATE\nEarlier this year, you asked whether the State Department could authorize the Palestine Liberation Organization (\xe2\x80\x9cPLO\xe2\x80\x9d) to engage in certain\ndiplomatic activities out of its Washington, D.C. office. At the time, the\nState Department had concluded that these activities, which included\ncommunications with the U.S. government, would advance U.S. efforts to\npromote peace between Israel and the Palestinians, and that barring the\nPLO from engaging in these activities would interfere with U.S. diplomacy.1 Your formal request followed an informal inquiry in November 2017.\nThese requests arose because the Secretary of State had determined that\nhe could no longer make the required certification under the federal\nappropriations law that would permit the waiver of section 1003 of the\nAnti-Terrorism Act of 1987 (\xe2\x80\x9cATA\xe2\x80\x9d), Pub. L. No. 100-204, tit. X, \xc2\xa7 1003,\n101 Stat. 1331, 1406, 1407 (1987). Section 1003 bars the PLO from\nmaintaining its Washington office or from expending funds in the United\nStates to promote the PLO\xe2\x80\x99s interests, including the diplomatic activities\nthat the State Department wished to authorize. 22 U.S.C. \xc2\xa7 5202(2), (3). If\nsection 1003 were constitutional, then the PLO was obliged to close its\nWashington office immediately and to cease funding its activities in the\nUnited States.\nWhen the question first arose, we informally advised, consistent with\nthis Office\xe2\x80\x99s prior position, that such restrictions would encroach upon\n1 See Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel,\nfrom Jennifer G. Newstead, Legal Adviser, Dep\xe2\x80\x99t of State at 1 (Apr. 23, 2018) (\xe2\x80\x9cState\nOpinion Request\xe2\x80\x9d); E-mail for Sarah Harris, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Mary Mitchell, Assistant Legal Adviser, Dep\xe2\x80\x99t of State, Re: PLO\nOffice Opinion Request \xe2\x80\x93 Responses to Questions att. at 4\xe2\x80\x936 (May 31, 2018, 10:54 PM)\n(\xe2\x80\x9cMay 31, 2018 E-mail\xe2\x80\x9d).\n\n1\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nthe President\xe2\x80\x99s exclusive constitutional authority to conduct diplomatic\nrelations. On April 23, 2018, you requested a formal opinion on the subject. Before we completed that opinion, however, the State Department\nconcluded that the PLO had failed to use its Washington office to engage\nin direct and meaningful negotiations on achieving a comprehensive peace\nsettlement and, therefore, that closing the PLO\xe2\x80\x99s Washington office would\nserve the foreign policy interests of the United States.\nThis memorandum explains the basis for the informal advice that the\nState Department relied upon in authorizing the PLO\xe2\x80\x99s Washington office\nto remain open between November 2017 and September 2018. Under the\nConstitution, the President has the exclusive authority to receive foreign\ndiplomatic agents in the United States and to determine the conditions\nunder which they may operate. Since the enactment of the ATA in 1987,\nPresidents have consistently recognized the statute\xe2\x80\x99s potential constitutional infirmity, and this Office has twice concluded that Congress may\nnot prohibit the President from authorizing the PLO to conduct diplomatic\nactivities in the United States. In keeping with that established position,\nwe advised that the ATA may not constitutionally bar the PLO from\nmaintaining its Washington office and undertaking diplomatic activities\nthe Secretary of State wishes to authorize. The Executive Branch may also\nclose the PLO\xe2\x80\x99s Washington office, consistent with the ATA\xe2\x80\x99s restrictions. But the Constitution requires that the President retain the flexibility\nto calibrate the United States\xe2\x80\x99 diplomatic contacts as circumstances warrant.\nI.\nThe PLO was established in 1964 for the purpose of working on behalf\nof \xe2\x80\x9cthe Palestinian Arab people\xe2\x80\x9d to \xe2\x80\x9cliberate its homeland\xe2\x80\x9d through armed\nconflict with the State of Israel. See Palestinian National Charter intro. &\nart. 25 (1964). For several decades, the PLO pursued those aims through\nacts of violence, often directed against civilians in Israel and the rest of\nthe world. During that period, the United States refused to maintain any\nrelations with the PLO. See State Opinion Request, supra note 1, at 1 n.4.\nIn 1974, the United Nations General Assembly granted the PLO the\nstatus of an observer in its proceedings as the representative of the Palestinian people. See G.A. Res. 3210 (XXIX) (Oct. 14, 1974); G.A. Res.\n2\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\n3237 (XXIX) (Nov. 22, 1974). In 1978, the PLO opened a Washington\ninformation office to act as \xe2\x80\x9cthe \xe2\x80\x98voice\xe2\x80\x99 of the PLO in the United States.\xe2\x80\x9d\nConstitutionality of Closing the Palestine Information Office, an Affiliate\nof the Palestine Liberation Organization, 11 Op. O.L.C. 104, 105 (1987)\n(\xe2\x80\x9cPalestine Information Office\xe2\x80\x9d). The State Department closed that office\nin 1987 because individuals and organizations affiliated with the PLO\ncommitted and supported acts of terrorism. See Determination and Designation of Benefits Concerning Palestine Information Office, 52 Fed. Reg.\n37,035 (Oct. 2, 1987).\nShortly thereafter, on December 22, 1987, Congress enacted the ATA,\na statute \xe2\x80\x9cunique\xe2\x80\x9d in \xe2\x80\x9cthe long history of Congressional enactments.\xe2\x80\x9d\nUnited States v. Palestine Liberation Org., 695 F. Supp. 1456, 1460\n(S.D.N.Y. 1988). In section 1002 of the ATA, Congress \xe2\x80\x9cdetermine[d]\nthat the PLO and its affiliates are a terrorist organization and a threat to\nthe interests of the United States, its allies, and to international law and\nshould not benefit from operating in the United States.\xe2\x80\x9d 22 U.S.C.\n\xc2\xa7 5201(b). Section 1003 of the Act provides in full:\nIt shall be unlawful, if the purpose be to further the interests of the\n[PLO] or any of its constituent groups, any successor to any of those,\nor any agents thereof, on or after the effective date of this chapter\xe2\x80\x94\n(1) to receive anything of value except informational material\nfrom the PLO or any of its constituent groups, any successor\nthereto, or any agents thereof;\n(2) to expend funds from the PLO or any of its constituent\ngroups, any successor thereto, or any agents thereof; or\n(3) notwithstanding any provision of law to the contrary, to establish or maintain an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United\nStates at the behest or direction of, or with funds provided by the\n[PLO] or any of its constituent groups, any successor to any of\nthose, or any agents thereof.\n22 U.S.C. \xc2\xa7 5202. Section 1004 provides that the Attorney General \xe2\x80\x9cshall\ntake the necessary steps and institute the necessary legal action to effectuate the policies and provisions of\xe2\x80\x9d the ATA. Id. \xc2\xa7 5203(a). Section\n1005(b) states that the ATA\xe2\x80\x99s provisions \xe2\x80\x9cshall cease to have effect if the\n3\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nPresident certifies . . . that the [PLO], its agents, or constituent groups\nthereof no longer practice or support terrorist actions anywhere in the\nworld.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 5201 note.\nAt the time of the ATA\xe2\x80\x99s passage, the United States did not maintain\nany relations with the PLO, and the Executive Branch had already shut\ndown the PLO\xe2\x80\x99s Washington office. Nonetheless, in signing the ATA into\nlaw, President Reagan expressed concern that its provisions would infringe upon the President\xe2\x80\x99s exclusive authority to conduct the Nation\xe2\x80\x99s\ndiplomatic affairs. As he explained in his signing statement:\nSection 1003 of the Act prohibits the establishment anywhere\nwithin the jurisdiction of the United States of an office \xe2\x80\x9cto further\nthe interests of\xe2\x80\x9d the Palestine Liberation Organization. The effect of\nthis provision is to prohibit diplomatic contact with the PLO. I have\nno intention of establishing diplomatic relations with the PLO. However, the right to decide the kind of foreign relations, if any, the\nUnited States will maintain is encompassed by the President\xe2\x80\x99s authority under the Constitution, including the express grant of authority in Article II, Section 3, to receive ambassadors. I am signing the\nAct, therefore, only because I have no intention of establishing diplomatic relations with the PLO, as a consequence of which no actual\nconstitutional conflict is created by this provision.\nStatement on Signing the Foreign Relations Authorization Act, Fiscal\nYears 1988 and 1989 (Dec. 22, 1987), 2 Pub. Papers of Pres. Ronald\nReagan 1541, 1542 (1987).2\nIn 1993, in connection with the Oslo Accords, the PLO renounced terrorism and recognized Israel\xe2\x80\x99s right to exist, and Israel recognized the\nPLO as the representative of the Palestinian people for purposes of negotiations for permanent status and peace. State Opinion Request, supra\nnote 1, att. at 3 & n.8. In June 1994, the State Department authorized the\n2 The PLO has also maintained a United Nations observer mission in New York since\n1974. In 1988, a district court held that section 1003(3) did not require closing that\nmission because the ATA should not be read to abrogate the United States\xe2\x80\x99 treaty obligations under the United Nations Headquarters Agreement, which applies to U.N. missions.\nPLO, 695 F. Supp. at 1468\xe2\x80\x9371. The United States did not appeal this ruling. Accordingly,\nthe PLO has maintained that U.N. mission for several decades notwithstanding sect ion\n1003.\n\n4\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nPLO to open a foreign mission in Washington. See Letter for Hasan Abdel\nRahman, Palestine Affairs Office, from Eric J. Boswell, Director, Office\nof Foreign Missions, Dep\xe2\x80\x99t of State (June 22, 1994) (\xe2\x80\x9cBoswell Letter\xe2\x80\x9d).\nCongress, in the Middle East Peace Facilitation Act of 1993, also authorized President Clinton to suspend section 1003 of the ATA, and later\nauthorized that suspension in annual appropriations riders. 3 In authorizing\nthe opening of a foreign mission, the State Department advised the PLO\nthat its members would lack diplomatic status and that they must continue\nto meet the requirements of the suspension. Boswell Letter at 1\xe2\x80\x932.\nSince 1994, Presidents have routinely exercised their authority to waive\nsection 1003\xe2\x80\x99s requirements. In signing appropriations bills, however,\nPresidents on several occasions have reiterated President Reagan\xe2\x80\x99s concern and advised that the conditions of certification could unconstitutionally restrict the President\xe2\x80\x99s authorities over foreign affairs.4 Despite those\n3\n\nSee, e.g., Middle East Peace Facilitation Act of 1993, Pub. L. No. 103-125, \xc2\xa7 3(b)(2),\n(d)(2), 107 Stat. 1309, 1310 (authorizing temporary waiver if the President certified that it\nadvanced the national interest and that the PLO was abiding by its O slo Accords commitments); Middle East Peace Facilitation Act of 1994, Pub. L. No. 103-236, tit. V, pt. E,\n\xc2\xa7 583(a), (b)(2), 108 Stat. 382, 488, 488\xe2\x80\x9389 (same); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998, Pub. L. No. 105-118, \xc2\xa7 539(d), 111\nStat. 2386, 2417\xe2\x80\x9318 (authorizing six-month waiver if President certified it was \xe2\x80\x9cimportant\nto the national security interests of the United States\xe2\x80\x9d); Department of State, Foreign\nOperations, and Related Programs Appropriations Act, 2012, Pub. L. No. 112-74, div. I,\n\xc2\xa7 7086(b), 125 Stat. 786, 1164, 1265 (authorizing six-month waiver if the President\ncertified that Palestinians had not obtained member state standing in the United Nations).\n4 See, e.g., Statement on Signing the Consolidated Appropriations Act, 2017, 2017\nDaily Comp. Pres. Doc. No. 312, at 1 (May 5, 2017) (Pres. Trump) (\xe2\x80\x9cNumerous provisions could, in certain circumstances, interfere with the exercise of my constitutional\nauthorities . . . to receive ambassadors . . . and to recognize foreign governments[.]\xe2\x80\x9d);\nStatement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23, 2011), 2 Pub.\nPapers of Pres. Barack Obama 1568, 1569 (2011) (\xe2\x80\x9cCertain provisions in Division I . . . ,\nincluding section[] 7086, hinder my ability to receive diplomatic representatives of\nforeign governments.\xe2\x80\x9d); Statement on Signing the Consolidated Appropriations Legislation for Fiscal Year 2000 (Nov. 29, 1999), 2 Pub. Papers of Pres. William J. Clinton 2156,\n2160 (1999) (\xe2\x80\x9cThis legislation includes a number of provisions . . . regarding the conduct\nof foreign affairs that raise serious constitutional concerns. . . . [S]ome provisions would\nconstrain . . . the exercise of my exclusive authority to receive ambassadors and to\nconduct diplomacy.\xe2\x80\x9d); see also, e.g., Statement on Signing the Palestinian Anti-Terrorism\nAct of 2006 (Dec. 21, 2006), 2 Pub. Papers of Pres. George W. Bush 2221, 2221 (2006)\n(objecting to a provision purporting to prevent the Palestinian Authority from establishing\na U.S. office); Statement on Signing the Foreign Relations Authorization Act, Fiscal Year\n\n5\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nconcerns, each year, the President or the Secretary of State (to whom the\nPresident later delegated the waiver authority) issued the required certification and waived the restrictions of section 1003. 5\nThat changed in the fall of 2017. The 2017 waiver provision authorized\nthe President to suspend the ATA only if he were able to certify both that\nthe Palestinians had not attained formal status within the United Nations\nand that they had not taken any actions to prompt the International Criminal Court (\xe2\x80\x9cICC\xe2\x80\x9d) to investigate alleged crimes committed by Israeli\nnationals against Palestinians. See Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017, Pub. L. No. 11531, div. J, \xc2\xa7 7041(l)(2)(B), 131 Stat. 135, 589, 667\xe2\x80\x9368. On November 15,\n2017, the Secretary of State concluded that he could not make this required certification. State Opinion Request, supra note 1, att. at 2.\nOn November 17, the State Department informed the PLO that the\nwaiver of statutory restrictions had lapsed, instructed the PLO to cease\noperations at its Washington office, and promised further guidance after\nadditional review. Letter for Husam Zomlot, Chief Representative, General Delegation of the PLO, from Cliff Seagroves, Acting Director, Office\nof Foreign Missions, Dep\xe2\x80\x99t of State (Nov. 17, 2017). Ten days later, State\nadvised that the Washington office could continue to engage in activities\n\xe2\x80\x9cthat support the objective of achieving a lasting, comprehensive peace\nbetween the Israelis and Palestinians.\xe2\x80\x9d Letter for Husam Zomlot, Chief\nRepresentative, General Delegation of the PLO, from Cliff Seagroves,\nActing Deputy Director, Office of Foreign Missions, Dep\xe2\x80\x99t of State (Nov.\n2003 (Sept. 30, 2002), 2 Pub. Papers of Pres. George W. Bush 1697, 1698 (2002) (objecting to a provision requiring the President to rescind any section 1003 waiver upon certain\ntriggering events, and advising that the Executive Branch would comply with that requirement only to the extent the President deemed it consistent with his foreign -affairs\nresponsibilities).\n5 See, e.g., Waiver and Certification of Statutory Provisions Regarding the Palestine\nLiberation Organization Office (Apr. 10, 2013), 78 Fed. Reg. 25,780 (May 2, 2013);\nWaiver and Certification of Statutory Provisions Regarding the Palestine Liberation\nOrganization, Pres. Determination No. 01-13 (Apr. 17, 2001), 66 Fed. Reg. 20,585 (Apr.\n24, 2001); Lifting Restrictions on U.S. Relations with the Palestine Liberation Organization, Pres. Determination No. 94-13 (Jan. 14, 1994), 59 Fed. Reg. 4777 (Feb. 1, 1994). In\n2010, the President delegated his certification authority to the Secretary of State. See\nDelegation of Certain Functions and Authorities (July 21, 2010), 75 Fed. Reg. 43,795\n(July 26, 2010); see also 3 U.S.C. \xc2\xa7 301.\n\n6\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\n27, 2017). State further advised that, under the FY 2017 waiver provision,\na secondary waiver might be available if the Secretary \xe2\x80\x9cdetermine[d] that\nthe Palestinians ha[d] entered into direct and meaningful negotiations with\nIsrael.\xe2\x80\x9d Id. State informs us that the PLO still has not returned to meaningful negotiations. See State Opinion Request, supra note 1, att. at 3.\nAlthough the FY 2017 waiver provision has expired, the FY 2018\nwaiver provision, which was enacted on March 23, 2018, is materially\nsimilar, and the Secretary of State cannot make the required certification.6\nThe Secretary also cannot recommend that the President certify that the\nPLO, its agents, or its constituent groups no longer practice or support\nterrorism, so as to invoke the termination provision in section 1005(b) of\nthe ATA.7 By its terms, then, section 1003 bars the PLO from maintaining\nits Washington office or expending any funds to support the PLO\xe2\x80\x99s activities in the United States.\nIn your April 23, 2018 opinion request, you advised that section 1003\nwould prevent the President from conducting diplomacy with the PLO and\ntherefore would unconstitutionally encroach upon the President\xe2\x80\x99s exclusive authority to receive ambassadors and to conduct foreign affairs. See\nState Opinion Request, supra note 1, att. at 9\xe2\x80\x9311. The State Department\nbelieves that it may authorize the PLO to engage in diplomatic activities\nif, in the judgment of the Executive Branch, those activities would support\nthe United States\xe2\x80\x99 foreign policy objective of fostering a lasting peace\nbetween Israelis and Palestinians. The State Department believes that this\nauthority would extend to authorizing the PLO to (1) maintain its Washington office; (2) maintain regular contact with U.S. officials and engage\nwith foreign government interlocutors in Washington on diplomatic\n\n6\n\nCongress kept the same general waiver criteria, but modified the ICC condition\nslightly, requiring certification that the PLO had not \xe2\x80\x9cinitiated or actively supported an\nICC investigation against Israeli nationals for alleged crimes against Palestinians.\xe2\x80\x9d\nDepartment of State, Foreign Operations, and Related Programs Appropriations Act,\n2018, Pub. L. No. 115-141, div. K, \xc2\xa7 7041(m)(2)(B)(i)(II), 132 Stat. 348, 833, 911\xe2\x80\x9312.\n7 The State Department informs us that certain groups (including the Popular Front for\nthe Liberation of Palestine, the Democratic Front for the Liberation of Palestine, and the\nPalestine Liberation Front) designated as terrorist organizations under Executive Order\n12947 (Jan. 23, 1995), 60 Fed. Reg. 5079, 5081 (Jan. 25, 1995), have not sufficiently\ndissociated from the PLO to allow this certification. State Opinion Request, supra note 1,\natt. at 1 n.1.\n\n7\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nmatters; (3) report to Palestinian leadership on relevant developments;\n(4) engage in public diplomacy; and (5) provide financial and administrative support for these activities. See May 31, 2018 E-mail, supra note 1,\natt. at 1, 4\xe2\x80\x938.\nOn September 10, 2018, the State Department ordered the PLO to close\nits Washington office. The State Department explained that \xe2\x80\x9cthe PLO\nOffice is not currently engaged in activities that support the U.S. objective\nof achieving a lasting, comprehensive peace\xe2\x80\x9d and thus that the United\nStates would no longer permit the office to operate. Letter for Husam\nZomlot, Chief Representative, General Delegation of the PLO, from Cliff\nSeagroves, Acting Director, Office of Foreign Missions, Dep\xe2\x80\x99t of State\n(Sept. 10, 2018).\nII.\nWe agree that Congress may not constitutionally require the PLO to\nclose its office and cease performing other diplomatic activities, should\nthe Executive Branch wish to authorize them. In so doing, section 1003 of\nthe ATA would intrude upon the diplomatic powers that \xe2\x80\x9cthe Constitution\ngrants to [the President] alone.\xe2\x80\x9d Zivotofsky v. Kerry, 135 S. Ct. 2076,\n2084 (2015) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.\n579, 638 (1952) (Jackson, J., concurring)). On several prior occasions,\nthis Office has reviewed section 1003 or similar restrictions and advised\nthat they could not constitutionally obstruct the Executive\xe2\x80\x99s ability to\nfacilitate relations with the PLO in the United States. We reach the same\nconclusion here.\nBefore the ATA\xe2\x80\x99s enactment in 1987, this Office had advised that two\nproposed bills similar to section 1003 would have been unconstitutional.\nPalestine Information Office, 11 Op. O.L.C. at 122. We explained that\n\xe2\x80\x9c[t]he right to decide whether to accord to the PLO diplomatic status and\nwhat that diplomatic status should be is encompassed within the right of\nthe President to receive ambassadors,\xe2\x80\x9d a power \xe2\x80\x9ctextually committed to\nthe Executive alone.\xe2\x80\x9d Id. The proposed provisions would be a \xe2\x80\x9cserious\ninfringement\xe2\x80\x9d on the President\xe2\x80\x99s foreign-affairs authorities because they\npurported to forbid the President, \xe2\x80\x9cas a practical matter,\xe2\x80\x9d from \xe2\x80\x9cestablish[ing] diplomatic relations with the PLO\xe2\x80\x9d unless he certified that the\nPLO had renounced terrorism. Id.\n8\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nFollowing the enactment of the ATA, we advised that Congress could\nrequire the closure of the PLO\xe2\x80\x99s U.N. observer mission in New York only\nbecause the President had not, to that point, engaged in any relations with\nthe PLO. See Memorandum for Edwin Meese III, Attorney General, from\nCharles J. Cooper, Assistant Attorney General, Office of Legal Counsel,\nRe: Intent and Constitutionality of Legislation Prohibiting the Maintenance of an Office of the Palestine Liberation Organization in the United\nStates at 23\xe2\x80\x9324 (Feb. 13, 1988) (\xe2\x80\x9c1988 Cooper Memorandum\xe2\x80\x9d). In upholding section 1003, we cautioned that \xe2\x80\x9cthis is a situation where Congress has power to act so long as the President has not.\xe2\x80\x9d Id. at 22. The\nPresident had not, \xe2\x80\x9cin the case of the PLO, chosen to invoke his constitutional authority either to receive ambassadors or to conduct foreign affairs\xe2\x80\x9d by \xe2\x80\x9crecogniz[ing] the PLO formally,\xe2\x80\x9d by \xe2\x80\x9cestablish[ing] an official\nrelationship with the PLO and with its representatives,\xe2\x80\x9d or by taking\nactions short of recognition whereby the President \xe2\x80\x9cpermits the alien\nrepresentatives to enter the United States or conduct negotiations with our\nrepresentatives.\xe2\x80\x9d Id. at 20, 22\xe2\x80\x9323 & n.23. If the President chose to take\nany of these actions, thereby invoking his \xe2\x80\x9cexclusive constitutional powers in the area of foreign affairs,\xe2\x80\x9d such action would \xe2\x80\x9cserve to shield the\nPLO Mission from the operation of the Act.\xe2\x80\x9d Id. at 18, 24. Absent such\nactions, however, section 1003\xe2\x80\x99s restrictions on the PLO did not impair\nthe President\xe2\x80\x99s exclusive authority over diplomacy because those restrictions fell within Congress\xe2\x80\x99s Article I powers and did not interfere\nwith the decision of the Executive Branch not to engage with the PLO.\nWe agree with those conclusions. The Constitution vests the President\nwith the exclusive authority to conduct diplomacy on behalf of the United\nStates. That authority includes determining whether to recognize a foreign\nentity as a sovereign and, if not, the degree of relations the United States\nshould maintain with it. That authority also includes the power to receive\nand expel foreign representatives, and to determine the scope of their\ndiplomatic activities in the United States. If the President chooses to\nmaintain diplomatic contacts with the PLO and to permit the organization\nto maintain a foreign mission in the United States, then Congress may not\nintrude on that choice by ordering the closure of the PLO\xe2\x80\x99s Washington\noffice or by prohibiting the PLO from engaging in the diplomatic activities authorized by the Executive Branch.\n9\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nA.\nThe President has \xe2\x80\x9cunique responsibility\xe2\x80\x9d for the conduct of \xe2\x80\x9cforeign\n. . . affairs,\xe2\x80\x9d Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993),\nand \xe2\x80\x9cthe lead role . . . in foreign policy,\xe2\x80\x9d First Nat\xe2\x80\x99l City Bank v. Banco\nNacional de Cuba, 406 U.S. 759, 767 (1972). The Constitution grants the\nPresident a host of express powers concerning foreign affairs: to \xe2\x80\x9creceive\nAmbassadors and other public Ministers,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, to\n\xe2\x80\x9cmake Treaties\xe2\x80\x9d and \xe2\x80\x9cappoint Ambassadors\xe2\x80\x9d with the consent of the\nSenate, id. art. II, \xc2\xa7 2, cl. 2, and to exercise authority as Commander in\nChief, id. art. II, \xc2\xa7 2, cl. 1. Congress, too, has powers touching upon\nforeign affairs, such as the powers \xe2\x80\x9c[t]o regulate Commerce with foreign\nNations,\xe2\x80\x9d \xe2\x80\x9c[t]o establish an uniform Rule of Naturalization,\xe2\x80\x9d and \xe2\x80\x9c[t]o\ndeclare War.\xe2\x80\x9d Id. art. I, \xc2\xa7 8. But the Constitution vests in the President\n\xe2\x80\x9c[t]he Executive power,\xe2\x80\x9d id. art. II, \xc2\xa7 1, which includes the \xe2\x80\x9cvast share of\nresponsibility for the conduct of our foreign relations\xe2\x80\x9d and \xe2\x80\x9cindependent\nauthority in the areas of foreign policy and national security.\xe2\x80\x9d Am. Ins.\nAss\xe2\x80\x99n v. Garamendi, 539 U.S. 396, 414, 429 (2003) (internal quotation\nmarks omitted).8\nWithin this sphere of presidential power, it is \xe2\x80\x9cwell settled that the\nConstitution vests the President with the exclusive authority to conduct\nthe Nation\xe2\x80\x99s diplomatic relations with other States.\xe2\x80\x9d Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act of 1995, 20 Op. O.L.C. 253,\n267 (1996); see also id. at 267 n.41. Although the President and Congress\nhave overlapping authority in some areas, the President has \xe2\x80\x9ca unique role\nSee, e.g., Dep\xe2\x80\x99t of the Navy v. Egan, 484 U.S. 518, 529 (1988) (\xe2\x80\x9cThe Court also has\nrecognized the generally accepted view that foreign policy [is] the province and responsibility of the Executive.\xe2\x80\x9d); Haig v. Agee, 453 U.S. 280, 293\xe2\x80\x9394 (1981) (same); Zivotofsky\nv. Kerry, 135 S. Ct. 2076, 2097\xe2\x80\x932101 (2015) (Thomas, J., concurring in the judgment in\npart and dissenting in part); Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (the President\nis the country\xe2\x80\x99s \xe2\x80\x9cguiding organ in the conduct of our foreign affairs,\xe2\x80\x9d and possesses \xe2\x80\x9cvast\npowers in relation to the outside world\xe2\x80\x9d); Kumar v. Republic of Sudan, 880 F.3d 144, 157\n(4th Cir. 2018) (recognizing \xe2\x80\x9cthe Constitution\xe2\x80\x99s grant to the Executive Branch \xe2\x80\x94not the\nJudicial Branch\xe2\x80\x94of broad oversight over foreign affairs\xe2\x80\x9d); Nat\xe2\x80\x99l Petrochemical Co. of\nIran v. M/T Stolt Sheaf, 860 F.2d 551, 555 (2d Cir. 1988) (\xe2\x80\x9cThe President alone\xe2\x80\x9d is \xe2\x80\x9cthe\nconstitutional guardian of foreign policy[.]\xe2\x80\x9d); 10 Annals of Cong. 613 (Mar. 7, 1800)\n(statement of then-Rep. John Marshall) (\xe2\x80\x9cThe President is the sole organ of the nation in\nits external relations, and its sole representative with foreign nations.\xe2\x80\x9d).\n8\n\n10\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nin communicating with foreign governments,\xe2\x80\x9d and Congress may not\ncompel the President to contradict that message. Zivotofsky, 135 S. Ct. at\n2090\xe2\x80\x9391, 2095. Thus, in Zivotofsky, the Supreme Court held unconstitutional a statute requiring U.S. passports to acknowledge Israeli sovereignty over Jerusalem on the ground that the law intruded upon the President\xe2\x80\x99s\nexclusive authority to recognize foreign sovereigns. Id. at 2085\xe2\x80\x9386. The\nCourt reasoned that \xe2\x80\x9c[r]ecognition is a topic on which the Nation must\n\xe2\x80\x98speak . . . with one voice,\xe2\x80\x99\xe2\x80\x9d and \xe2\x80\x9c[t]hat voice must be the President\xe2\x80\x99s\xe2\x80\x9d\nbecause \xe2\x80\x9c[t]he President is capable, in ways Congress is not, of engaging\nin the delicate and often secret diplomatic contacts that may lead to a\ndecision on recognition.\xe2\x80\x9d Id. (quoting Garamendi, 539 U.S. at 424) (ellipsis in original). Whereas \xe2\x80\x9cthe President has the power to open diplomatic\nchannels simply by engaging in direct diplomacy with foreign heads of\nstate and their ministers,\xe2\x80\x9d the Court explained, Congress \xe2\x80\x9chas no constitutional power that would enable it to initiate diplomatic relations with a\nforeign nation.\xe2\x80\x9d Id.\nThe President\xe2\x80\x99s exclusive authority over diplomacy flows from the text\nof the Constitution and a long line of \xe2\x80\x9caccepted understandings and practice\xe2\x80\x9d by all three branches of government. Id. at 2091. The President alone\ndecides whether to recognize a foreign sovereign. Id. at 2084. The President can \xe2\x80\x9copen diplomatic channels\xe2\x80\x9d through direct diplomacy, or can\ninstead insist that those channels stay closed. Id. The President decides\nwhom to nominate as ambassador and unilaterally \xe2\x80\x9cdispatches other\ndiplomatic agents.\xe2\x80\x9d Id. at 2086. The President \xe2\x80\x9chas the sole power to\nnegotiate treaties,\xe2\x80\x9d id., and Congress may not require the President to\n\xe2\x80\x9cinitiate discussions with foreign nations\xe2\x80\x9d or prevent them from occurring, Earth Island Inst. v. Christopher, 6 F.3d 648, 652\xe2\x80\x9353 (9th Cir.\n1993).9 In sum, the President has the sole role in deciding \xe2\x80\x9cwhether, how,\n9 Accord, e.g., United States v. Louisiana, 363 U.S. 1, 35 (1960) (The President is \xe2\x80\x9cthe\nconstitutional representative of the United States in its dealings with foreign nations.\xe2\x80\x9d);\nProhibition of Spending for Engagement of the Office of Science and Technology Policy\nwith China, 35 Op. O.L.C. 116, 121 n.2 (2011) (\xe2\x80\x9cOSTP Engagement with China\xe2\x80\x9d) (\xe2\x80\x9c[T]he\ncourts, the Executive, and Congress have all concurred that the President\xe2\x80\x99s constitutional\nauthority specifically includes the exclusive authority to represent the United States\nabroad.\xe2\x80\x9d) (quotations omitted); Statement on Signing the Foreign Relations Authorization\nAct, Fiscal Years 1992 and 1993 (Oct. 28, 1991), 2 Pub. Papers of Pres. George Bush\n1344, 1344 (1991) (\xe2\x80\x9c[U]nder our system of government, all decisions concerning the\nconduct of negotiations with foreign governments are within the exclusive control of the\n\n11\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nwhen, and through whom to engage in foreign diplomacy.\xe2\x80\x9d Legislation\nProhibiting Spending for Delegations to U.N. Agencies Chaired by\nCountries That Support International Terrorism, 33 Op. O.L.C. 221, 230\n(2009) (\xe2\x80\x9cDelegations to U.N. Agencies\xe2\x80\x9d).\nSimilarly, the President alone determines which foreign agents may\ncome into the United States, how long they may stay, and what diplomatic\nactivities they may carry out while here. The Reception Clause empowers\nthe President alone to \xe2\x80\x9creceive Ambassadors and other public Ministers.\xe2\x80\x9d\nU.S. Const. art. II, \xc2\xa7 3. And this authority includes whether to accept the\nrequest by foreign sovereigns to send particular dignitaries and to assure\nthem of entry. See Presidential Power to Expel Diplomatic Personnel\nfrom the United States, 4A Op. O.L.C. 207, 208\xe2\x80\x9309, 215 (1980) (\xe2\x80\x9cPresidential Power to Expel Diplomatic Personnel \xe2\x80\x9d). As early as 1793, the\nWashington Administration considered it self-evident that the President\nalone would decide when to recognize the new French government and\nreceive its minister. See Zivotofsky, 135 S. Ct. at 2091\xe2\x80\x9392; Saikrishna\nPrakash & Michael Ramsey, The Executive Power over Foreign Affairs,\n111 Yale L.J. 231, 312\xe2\x80\x9313 (2001) (\xe2\x80\x9cPrakash & Ramsey\xe2\x80\x9d).\nCongress, too, shared this understanding in the early Republic. As the\nSupreme Court discussed in Zivotofsky, in 1818, the House of Representatives took up the question of whether to recognize the new South American republics that had broken away from Spain. 135 S. Ct. at 2092.\nSpeaking in opposition, Representative Alexander Smyth explained, \xe2\x80\x9cit is\nthe President who receives all foreign Ministers, and determines what\nforeign Ministers shall or shall not be received. It is by the exercise of one\nof these powers, in neither of which has this House any participation, that\na foreign Power must be acknowledged.\xe2\x80\x9d 32 Annals of Cong. 1569\xe2\x80\x9370\n(Mar. 27, 1818). The House voted down the bill and deferred any efforts\ntoward recognition until after President Monroe made that decision, four\nyears later. This episode reflected the early congressional understanding\nPresident.\xe2\x80\x9d); Authority to Participate in International Negotiations, 2 Op. O.L.C. 227,\n228 (1978) (\xe2\x80\x9cNegotiation is a necessary part of the process by which foreign relations are\nconducted, and the power to conduct foreign relations is given to the President by the\nConstitution.\xe2\x80\x9d); Louis Henkin, Foreign Affairs and the United States Constitution 42 (2d\ned. 1996) (\xe2\x80\x9cAs \xe2\x80\x98sole organ,\xe2\x80\x99 the President determines also how, when, where, and by\nwhom the United States should make or receive [diplomatic] communications\xe2\x80\x9d and cannot\nbe \xe2\x80\x9climited as to time, place, form, or forum.\xe2\x80\x9d).\n\n12\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nthat \xe2\x80\x9cthe recognition power rested solely with the President.\xe2\x80\x9d Zivotofsky,\n135 S. Ct. at 2092.\nLikewise, it has been \xe2\x80\x9cbeyond serious question\xe2\x80\x9d that the President\xe2\x80\x99s\npower to engage with foreign emissaries encompasses the power to expel\nthem from the United States. Presidential Power to Expel Diplomatic\nPersonnel, 4A Op. O.L.C. at 209; accord 3 Joseph Story, Commentaries\non the Constitution \xc2\xa7 1562, at 418 (1833) (\xe2\x80\x9cStory\xe2\x80\x9d) (the President\xe2\x80\x99s reception authority includes \xe2\x80\x9cthe power to refuse [foreign dignitaries], and to\ndismiss those who, having been received, become obnoxious to censure,\nor unfit to be allowed the privilege\xe2\x80\x9d). Most famously, in 1793, President\nWashington demanded the recall of the French minister, Edmond Charles\nGenet, after Genet embarked on a public campaign to oppose the President\xe2\x80\x99s neutrality policy and win American support for France\xe2\x80\x99s war\nagainst Great Britain. Prakash & Ramsey, 111 Yale L.J. at 314\xe2\x80\x9315; Stanley Elkins & Eric McKitrick, The Age of Federalism 341\xe2\x80\x9353, 363\xe2\x80\x9365\n(1993) (\xe2\x80\x9cElkins & McKitrick\xe2\x80\x9d). Genet contended that only Congress\ncould recall diplomats\xe2\x80\x94but the Washington Administration disagreed,\nand Congress acquiesced in the administration\xe2\x80\x99s position. Prakash &\nRamsey, 111 Yale L.J. at 314\xe2\x80\x9315; Elkins & McKitrick at 365. Since then,\nthe Executive has unilaterally decided when to expel foreign representatives. See generally 5 John Bassett Moore, A Digest of International Law,\nH.R. Doc. No. 56-551, \xc2\xa7\xc2\xa7 700\xe2\x80\x9301, at 19\xe2\x80\x9332 (1906) (\xe2\x80\x9cMoore\xe2\x80\x9d) (citing over\na dozen examples). Accordingly, in 1980, this Office concluded that the\nPresident had the authority to expel Iranian diplomats and could do so for\nany reason. See Memorandum for the Attorney General, from Larry A.\nHammond, Acting Assistant Attorney General, Office of Legal Counsel,\nThe President\xe2\x80\x99s Power to Declare Iranian Diplomats Persona Non Grata\nBecause of Their Public Statements at 1\xe2\x80\x932 (Mar. 20, 1980).\nCongress has accepted the President\xe2\x80\x99s authority over the entry and expulsion of foreign diplomats. For instance, the Immigration and Nationality Act, 8 U.S.C. \xc2\xa7 1101 et seq., has long exempted diplomatic personnel\nfrom its provisions. Congress added this general exemption in recognition\nof \xe2\x80\x9cthe constitutional limitations on its ability to control or regulate the\nPresident\xe2\x80\x99s constitutional power to receive (and expel) the foreign representatives of countries with whom we have diplomatic relations.\xe2\x80\x9d Presidential Power to Expel Diplomatic Personnel, 4A Op. O.L.C. at 215; see\nalso H.R. Rep. No. 82-1365, at 34 (1952) (explaining that various foreign\n13\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\ndiplomats who have been \xe2\x80\x9caccepted by the President or the Secretary of\nState\xe2\x80\x9d are generally exempted from provisions relating to admission or\nremoval \xe2\x80\x9c[i]n view of constitutional limitations\xe2\x80\x9d). On the rare occasions\nwhen Congress sought to bar the entry of foreign representatives, Presidents have regularly objected.10 And for good reason: just as the President\xe2\x80\x99s recognition authority will not tolerate a contradictory message from\nCongress, Zivotofsky, 135 S. Ct. at 2095, the President\xe2\x80\x99s reception authority similarly prohibits Congress from barring the emissaries whom the\nPresident wishes to receive.\nThe President\xe2\x80\x99s foreign-affairs authorities also give him exclusive control over the activities of foreign representatives in the United States. See,\ne.g., Tachiona v. United States, 386 F.3d 205, 213\xe2\x80\x9314 (2d Cir. 2004) (the\nPresident possesses the \xe2\x80\x9cauthority to set the terms upon which foreign\nambassadors are received\xe2\x80\x9d). Presidents have long set the conditions under\nwhich diplomats may operate. For instance, in 1793, Secretary of State\nJefferson cautioned Genet that the Executive Branch would \xe2\x80\x9cadmit the\ncontinuance of your functions so long as they shall be restrained within\nthe limits of the law as heretofore announced to you, or shall be of the\ntenor usually observed towards independent nations by the representative\nof a friendly power residing with them.\xe2\x80\x9d Thomas Jefferson to Edmond\nCharles Genet (Sept. 7, 1793), 27 The Papers of Thomas Jefferson 52\xe2\x80\x9353\n(John Catanzariti ed., 1997) (\xe2\x80\x9cJefferson Papers\xe2\x80\x9d). After the French consuls sought to exercise admiralty jurisdiction in the United States to \xe2\x80\x9ctry\nthe validity of prizes\xe2\x80\x9d seized by privateers, Jefferson directed them to stop\n10 OSTP Engagement with China, 35 Op. O.L.C. at 123 (\xe2\x80\x9cPresidents . . . have regularly\nobjected to legislation purporting to bar their interaction with particular foreign officials.\xe2\x80\x9d); Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1990\nand 1991 (Feb. 16, 1990), 1 Pub. Papers of Pres. George Bush 239, 240 (1990) (declaring\nprovision restricting the President\xe2\x80\x99s ability to receive spies as ambassadors to be unconstitutional); Statement on Signing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Mar. 12, 1996), 1 Pub. Papers of Pres. William J. Clinton 433, 434\n(1996) (\xe2\x80\x9cA categorical prohibition on the entry of [individuals who confiscate or traffic in\nexpropriated property] could constrain the exercise of my exclusive authority under\nArticle II of the Constitution to receive ambassadors and to conduct diplomacy\xe2\x80\x9d); Statement on Signing the Countering America\xe2\x80\x99s Adversaries Through Sanctions Act, 2017\nDaily Comp. Pres. Doc. No. 559, at 1 (Aug. 2, 2017) (Pres. Trump) (deeming unconstitutional provisions that purported to require the President to \xe2\x80\x9cdeny certain individuals entry\ninto the United States, without an exception for the President\xe2\x80\x99s responsibility to receive\nambassadors\xe2\x80\x9d).\n\n14\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nand threatened to \xe2\x80\x9cimmediately revoke[]\xe2\x80\x9d the exequaturs that authorized\nthem to operate in the United States. Thomas Jefferson, Circular to French\nConsuls and Vice-Consuls (Sept. 7, 1793), 27 Jefferson Papers at 51. The\nWashington Administration similarly advised France that any limitations\nplaced on the jurisdiction of U.S. consuls abroad would result in reciprocal limitations on French consuls in the United States. Prakash & Ramsey,\n111 Yale L.J. at 313. Since then, Presidents have set the conditions under\nwhich foreign representatives must operate in the United States. 11 This\nlong practice confirms that the President has the sole authority to decide\nwhich foreign representatives to receive, what activities they may undertake, and when they must depart.\nCongress therefore could not impose restrictions like those in section\n1003 upon accredited foreign diplomats in the United States. \xe2\x80\x9c[W]hen a\nPresidential power is \xe2\x80\x98exclusive,\xe2\x80\x99 it \xe2\x80\x98disabl[es] the Congress from acting\nupon the subject.\xe2\x80\x99\xe2\x80\x9d Zivotofsky, 135 S. Ct. at 2095 (quoting Youngstown,\n343 U.S. at 637\xe2\x80\x9338 (Jackson, J., concurring)); see OSTP Engagement with\nChina, 35 Op. O.L.C. at 124\xe2\x80\x9329. Prohibiting representatives of a foreign\nsovereign from maintaining any office or mission in the United States\nwould be tantamount to prohibiting them from engaging in diplomacy,\nsince missions are \xe2\x80\x9cthe machinery through which States conduct diplomacy.\xe2\x80\x9d Denza, supra note 11, at 1. So, too, prohibiting foreign diplomats\nfrom expending any funds in the United States for the purpose of furthering their sovereign\xe2\x80\x99s interests would effectively block those diplomats\nfrom discharging their duties. The President\xe2\x80\x99s decision to receive a diplomat entails an implicit authorization for the diplomat to perform the\n11 See, e.g., 5 Moore \xc2\xa7 700, at 20 (noting that in 1855, the Secretary of State threatened\nto revoke the exequatur of the Portuguese consul in New York if he refused to appear as a\nwitness in prosecuting persons charged with fitting vessels for use in the slave trade);\nEileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic\nRelations 64 (4th ed. 2016) (\xe2\x80\x9cDenza\xe2\x80\x9d) (noting that power to expel diplomats \xe2\x80\x9cenables the\nreceiving State to protect itself against numerous forms of unacceptable activity by\nmembers of diplomatic missions and forms an important counterweight to the immunities\nconferred elsewhere\xe2\x80\x9d); id. at 409 (describing State Department practices of \xe2\x80\x9ccutting of\ntelephone lines, refusal of customs clearance for diplomatic imports, and refusal of\npermission to purchase private residences\xe2\x80\x9d that were taken against the missions of the\nSoviet Union, China, Czechoslovakia, Iran, Vietnam, and Cambodia); id. at 410 (\xe2\x80\x9cThe\nDepartment of State systematically monitors tax exemptions granted to U.S. missions\nabroad and adjusts the privileges accorded to missions in the United States so as to ensure\na high level of reciprocity.\xe2\x80\x9d).\n\n15\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\ncustomary incidents of diplomatic office, unless the President chooses to\nmodify the scope of that authorization.\nB.\nThe President\xe2\x80\x99s exclusive authority over diplomatic affairs extends as\nwell to foreign political organizations, such as the PLO. Because the\nPresident\xe2\x80\x99s \xe2\x80\x9cexclusive and plenary\xe2\x80\x9d powers to \xe2\x80\x9creceive emissaries from a\nforeign entity\xe2\x80\x9d and to recognize foreign sovereigns \xe2\x80\x9cneed not be exercised\nconcurrently,\xe2\x80\x9d the \xe2\x80\x9cPresident\xe2\x80\x99s decision to engage in diplomatic activity\n. . . does not obligate him to recognize the state sending those representatives.\xe2\x80\x9d 1988 Cooper Memorandum at 22\xe2\x80\x9323 n. 23. Nor must the President\naccept emissaries as accredited diplomats to invoke his foreign-affairs\nauthorities. The President\xe2\x80\x99s reception power extends to \xe2\x80\x9call possible\ndiplomatic agents which any foreign power may accredit to the United\nStates.\xe2\x80\x9d Ambassadors and Other Public Ministers of the United States,\n7 Op. Atty. Gen. 186, 209 (1855). 12 So the President may authorize foreign emissaries to enter the United States and engage in diplomatic relations without affording them diplomatic status. The Supreme Court has\nrecognized the President\xe2\x80\x99s diplomatic authority includes such informal\ndiplomatic channels. United States v. Belmont, 301 U.S. 324, 330 (1937)\n(it \xe2\x80\x9cmay not be doubted\xe2\x80\x9d that it was \xe2\x80\x9cwithin the competence of the President\xe2\x80\x9d alone to engage in negotiations with the Soviet Union before its\nrecognition); see Zivotofsky, 135 S. Ct. at 2086 (\xe2\x80\x9cThe President is capable,\nin ways Congress is not, of engaging in the delicate and often secret\ndiplomatic contacts that may lead to a decision on recognition.\xe2\x80\x9d). This\nOffice thus previously concluded that the President has the sole authority\nto \xe2\x80\x9cdecide whether to accord to the PLO diplomatic status and what that\ndiplomatic status should be.\xe2\x80\x9d Palestine Information Office, 11 Op. O.L.C.\nat 122.13\n12 For instance, at the Founding, consuls were \xe2\x80\x9cnot diplomatic functionaries, or political representatives of a foreign nation,\xe2\x80\x9d but were \xe2\x80\x9ctreated in the character of mere commercial agents.\xe2\x80\x9d 3 Story \xc2\xa7 1559, at 415. Yet, Justice Story explained, the President\xe2\x80\x99s sole\nauthority to receive them \xe2\x80\x9chas constantly been exercised without objection; and foreign\nconsuls have never been allowed to discharge any functions of office, until they have\nreceived the exequatur of the president.\xe2\x80\x9d Id.\n13 See also Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C.\n189, 194 (1996) (\xe2\x80\x9cThe Executive\xe2\x80\x99s recognition power necessarily subsumes within itself\n\n16\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nSince the Founding, Presidents have received and negotiated with representatives from non-sovereign entities. From 1796 to 1800, following an\nuprising in the French colony of Saint-Domingue, President Adams accepted agents of the provisional government of Toussaint L\xe2\x80\x99Ouverture.\nThe Adams administration did not recognize L\xe2\x80\x99Ouverture\xe2\x80\x99s government\nor grant his agents diplomatic status, but negotiated with them over trade.\nSee Rayford W. Logan, The Diplomatic Relations of the United States\nwith Haiti 1776\xe2\x80\x931891, at 73\xe2\x80\x9376, 105 (1941). Likewise, as other Latin\nAmerican colonies edged towards independence in the nineteenth century,\nPresidents Madison, Monroe, and Quincy Adams authorized provisional\ngovernments to send agents and received them on an informal basis.\nSamuel Flagg Bemis, Early Diplomatic Missions from Buenos Aires to the\nUnited States 1811\xe2\x80\x931824, 49 Proc. of Am. Antiquarian Soc. 11, 12\xe2\x80\x9313, 55\n(Apr. 1939) (\xe2\x80\x9cBemis\xe2\x80\x9d); Julius Goebel, Jr., The Recognition Policy of the\nUnited States 121, 134, 138 (1915) (\xe2\x80\x9cGoebel\xe2\x80\x9d). Some of these agents\nremained in the United States for decades to lobby for recognition. Bemis,\n49 Proc. of Am. Antiquarian Soc. at 21, 93.\nLong before recognizing the Soviet Union, the Executive Branch allowed unofficial Soviet representatives into the United States. In 1921,\nduring the Russian Civil War, the State Department authorized the shortlived Far Eastern Republic\xe2\x80\x94an entity later subsumed within the Soviet\nUnion\xe2\x80\x94to send \xe2\x80\x9cresponsible persons of good record to whom the Department would extend informal assistance but no official recognition.\xe2\x80\x9d\nSvetlana Chervonnaya & Donald Evans, Left Behind: Boris E. Skvirsky\nand the Chita Delegation at the Washington Conference, 1921\xe2\x80\x9322, 29\nIntel. & Nat\xe2\x80\x99l Sec. 19, 26 (2014) (internal quotations omitted). That\ndelegation included Boris Skvirsky, who established the Soviet Union\nInformation Bureau, negotiated with U.S. officials, and engaged in public\ndiplomacy as the Soviet Union\xe2\x80\x99s unofficial diplomatic representative for\n\nthe power to withhold or deny recognition, to determine the conditions on which recognition will be accorded, and to define the nature and extent of diplomatic contacts with an\nas-yet unrecognized government.\xe2\x80\x9d); Nat\xe2\x80\x99l Petrochemical Co. of Iran, 860 F.2d at 554\xe2\x80\x9355\n(\xe2\x80\x9c[T]he power to deal with foreign nations outside the bounds of formal recognition is\nessential to a president\xe2\x80\x99s implied power to maintain international relations,\xe2\x80\x9d and \xe2\x80\x9cthe\npresident alone\xe2\x80\x94as the constitutional guardian of foreign policy\xe2\x80\x94knows what action is\nnecessary to effectuate American relations with foreign governments.\xe2\x80\x9d).\n\n17\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nmore than a decade, id. at 27, 51, while occupying the \xe2\x80\x9clegal status of a\nprivate citizen,\xe2\x80\x9d id. at 50 (internal quotations omitted).\nDuring World War II, President Roosevelt admitted Charles de Gaulle,\nthe leader of the French Committee of National Liberation, to the United\nStates for meetings while avoiding recognizing either de Gaulle or the\nVichy regime as the legitimate government of France. 2 Marjorie M.\nWhiteman, Digest of International Law \xc2\xa7 5, at 129 (1963). The Executive\nBranch likewise authorized the People\xe2\x80\x99s Republic of China to open an\nunofficial liaison office and granted its representatives certain diplomatic\nprivileges and immunities before recognizing the Communist Chinese\ngovernment. 2 Jerome Alan Cohen & Hungdah Chiu, People\xe2\x80\x99s China and\nInternational Law: A Documentary Study 1108 (1974). And the Executive\nBranch permitted breakaway entities like Katanga and Rhodesia, which\nnever attained recognition, to open unofficial U.S. offices and to take\nactions in the United States to advance their political interests. See Josiah\nBrownell, Diplomatic Lepers: The Katangan and Rhodesian Foreign\nMissions in the United States and the Politics of Nonrecognition, 47 Int\xe2\x80\x99l\nJ. of African Hist. Stud. 209, 213\xe2\x80\x9314, 226\xe2\x80\x9327, 230 (2014).\nCongress too has acknowledged the President\xe2\x80\x99s authority to engage in\ndiplomacy with non-sovereign entities. The Foreign Missions Act defines\na \xe2\x80\x9cforeign mission\xe2\x80\x9d on U.S. soil to include \xe2\x80\x9cany mission to or agency or\nentity in the United States which is involved in the diplomatic, consular,\nor other activities of \xe2\x80\x9d either (i) \xe2\x80\x9ca foreign government,\xe2\x80\x9d or (ii) \xe2\x80\x9can organization . . . representing a territory or political entity which has been\ngranted diplomatic or other official privileges and immunities under [U.S.\nlaw] or which engages in some aspect of the conduct of the international\naffairs of such territory or political entity.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 4302(a)(3). The\nstatute grants the Secretary of State the discretion to determine which\norganizations constitute a \xe2\x80\x9cforeign mission.\xe2\x80\x9d Id. \xc2\xa7 4302(b). Under the\nForeign Missions Act, Presidents have authorized the PLO and other\nforeign entities to open offices and engage in diplomatic activities in the\nUnited States.14\n14\n\nSee, e.g., National Coalition of Syrian Revolution and Opposition Forces, 79 Fed.\nReg. 27,675 (May 14, 2014) (determining that the offices of the National Coalition of\nSyrian Revolution and Opposition Forces constitute a foreign mission); Taipei Economic\nand Cultural Offices, 79 Fed. Reg. 16,090 (Mar. 24, 2014) (determining that the Taipei\nEconomic and Cultural Representative Office in Washington, D.C., and its subsidiary\n\n18\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nSimilarly, this Office has often concluded that the President\xe2\x80\x99s exclusive\nauthority over diplomatic affairs extends to representatives of non recognized foreign entities. For instance, in 1977, President Carter sought\nto close Rhodesia\xe2\x80\x99s unofficial U.S. office in view of his Administration\xe2\x80\x99s\nforeign policy and a recent U.S.-sponsored United Nations Security\nCouncil resolution. This Office advised that, notwithstanding the mission\xe2\x80\x99s lack of diplomatic status, its closure fell within the President\xe2\x80\x99s\nexclusive foreign-affairs powers, including \xe2\x80\x9cthe right to determine who is\nto be regarded here as representing a foreign state or regime.\xe2\x80\x9d Letter for\nthe President, from John M. Harmon, Assistant Attorney General, Office\nof Legal Counsel att. 2, at 7 (Dec. 13, 1977).\nThis Office also objected to a bill that would have required the Secretary of State to permit the entry of the President of Taiwan to the extent it\ncould be \xe2\x80\x9cconstrued to prevent the President from denying [him] permission to enter the United States.\xe2\x80\x9d Memorandum for the Files, from Richard\nShiffrin, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: H.R. 1460, at 2 (May 18, 1995). The United States did not recognize\nTaiwan as a foreign sovereign, the Clinton administration had not decided\nwhether to grant the Taiwanese President diplomatic status, and the Taiwanese President merely sought entry to speak at Cornell University. Id.\nat 1\xe2\x80\x932. Nonetheless, we concluded that Congress could not require the\nPresident to admit him, because doing so \xe2\x80\x9cwould undermine the President\xe2\x80\x99s recognition policy toward\xe2\x80\x9d the People\xe2\x80\x99s Republic of China. Id.\nat 2\xe2\x80\x933.\nThese precedents leave little doubt that Congress may not interfere with\nthe President\xe2\x80\x99s authority to engage in diplomatic contacts with non recognized entities. Foreign political entities that engage with the United\nStates are engaged in diplomacy even if they never attain recognition. If\nthe President did not have the exclusive authority to set the parameters of\nUnited States engagement, then Congress could thwart the President\xe2\x80\x99s\nauthority to recognize such entities or to calibrate the nature of relations\nwith them. The authority to engage with foreign entities in the United\nStates therefore falls well within the President\xe2\x80\x99s exclusive authority.\n\noffices throughout the United States constitute foreign missions); Amtorg Trading Corporation, 52 Fed. Reg. 5,373 (Feb. 20, 1987) (authorizing the de facto Soviet trade delegation to operate a mission).\n\n19\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nThis conclusion is consistent with the course of United States relations\nwith the PLO. Although the United States has never recognized the PLO\nas a foreign sovereign, the United States maintained relations with the\nPLO for over two decades, and Presidents have repeatedly objected to\nlegislative efforts to cabin such engagement.15 Since 1994, Presidents\nhave engaged with the PLO as the international representative of the\nPalestinian people. See State Opinion Request, supra note 1, att. at 1. The\nState Department authorized the PLO to maintain a foreign mission in\nWashington, D.C., in the expectation that PLO representatives should\n\xe2\x80\x9chave ready access to State Department officials on matters of mutual\nconcern\xe2\x80\x9d and be \xe2\x80\x9cinvited to official U.S. functions on a case by case\nbasis.\xe2\x80\x9d Boswell Letter at 2. If the Executive Branch wishes to authorize\nthe PLO to conduct such diplomatic activities, Congress may not constitutionally bar such engagement.\nC.\nThe President\xe2\x80\x99s exclusive authority over diplomatic affairs necessarily\nimplies the discretion to permit the PLO to maintain a mission within the\nUnited States. Since the early days of the Nation, the Executive Branch\nhas allowed non-recognized entities to send agents to the United States to\nreside on a long-term basis and establish diplomatic contacts. Forbidding\nthese entities from establishing an office from which to operate would cut\noff a critical conduit for such relations. Cf. Denza, supra note 11, at 1\n(missions are \xe2\x80\x9cthe machinery through which States conduct diplomacy\xe2\x80\x9d).\n\n15 See supra note 4; accord, e.g., Delegations to U.N. Agencies, 33 Op. O.L.C. at 232\n(\xe2\x80\x9c[T]he Executive Branch has objected numerous times on constitutional grounds to\nlegislative provisions purporting to preclude any U.S. government employee from negotiating with (or recognizing) the [PLO] or its representatives until the PLO had met certain\nconditions.\xe2\x80\x9d); Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23,\n2011), 2 Pub. Papers of Pres. Barack Obama 1568, 1569 (2011) (prohibition on establishing an office in Jerusalem for the purpose of conducting official business with the Palestinian Authority would \xe2\x80\x9chinder my ability to receive diplomatic representatives of foreign\ngovernments\xe2\x80\x9d); Statement on Signing the Foreign Relations Authorization Act, Fiscal\nYears 1990 and 1991 (Feb. 16, 1990), 1 Pub. Papers of Pres. George Bush 239, 240\n(1990) (objecting to a statute prohibiting the use of any funds to continue \xe2\x80\x9cthe current\ndialogue on the Middle East peace process\xe2\x80\x9d with any PLO representatives known to have\nbeen directly involved in terrorist activity because such a prohibition interferes with the\nPresident\xe2\x80\x99s \xe2\x80\x9cconstitutional authority to negotiate with foreign organizations\xe2\x80\x9d).\n\n20\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nTherefore, at a minimum, Congress may not prohibit the PLO from maintaining an office dedicated to conducting relations with the United States\nshould the Executive seek to facilitate such relations.\nThe question remains whether additional PLO activities fall within the\nPresident\xe2\x80\x99s exclusive authority over diplomacy. In light of the State\nDepartment\xe2\x80\x99s expertise in this area, we give great weight to its views\nregarding whether particular activities are diplomatic in nature. See Issues\nRaised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 21 (1992) (\xe2\x80\x9cdefer[ring] to the State Department\xe2\x80\x99s\nexpertise\xe2\x80\x9d concerning the foreign policy consequences of a proposed bill);\nOSTP Engagement with China, 35 Op. O.L.C. at 125 (relying on the State\nDepartment\xe2\x80\x99s judgments as to how integral particular activities are to the\nconduct of diplomacy); Delegations to U.N. Agencies, 33 Op. O.L.C. at\n235 (deferring to the State Department\xe2\x80\x99s conclusion that a legislative\nrestriction on its participation in negotiations would undermine U.S.\ndiplomacy); cf. United States v. Al-Hamdi, 356 F.3d 564, 571\xe2\x80\x9372 (4th Cir.\n2004) (treating the State Department\xe2\x80\x99s views as conclusive regarding\nwhether a foreign representative possesses diplomatic status in light of the\nPresident\xe2\x80\x99s foreign-affairs authorities). We also consider whether these\nactivities constitute a necessary incident of diplomacy by looking to the\nhistorical practices of the Executive Branch. See Zivotofsky, 135 S. Ct. at\n2091 (examining \xe2\x80\x9caccepted understandings and practice\xe2\x80\x9d).\nBased on these criteria, we believe that the specific activities that the\nState Department identified are necessary incidents of engaging the PLO\nin diplomatic contact with the United States. The State Department may\nauthorize the PLO to meet with U.S. and foreign officials in the United\nStates. Indeed, the whole point of allowing a foreign representative to\nenter the United States and establish an office is to foster such contacts,\nwhether they are with representatives of the U.S. government or with\nmembers of the foreign diplomatic corps. Cf. OSTP Engagement with\nChina, 35 Op. O.L.C. at 125 (Congress has no authority to limit meetings\nbetween U.S. and Chinese officials abroad because such contacts \xe2\x80\x9cfall\nsquarely within the scope of the President\xe2\x80\x99s constitutional authority to\nengage in discussions with foreign governments\xe2\x80\x9d).\nLikewise, the State Department may authorize the PLO\xe2\x80\x99s Washington\noffice to communicate with its leadership abroad. There would be few\nsurer ways of thwarting the President\xe2\x80\x99s diplomatic efforts than to bar\n21\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nforeign representatives from reporting on developments within the United\nStates. Cf. Denza, supra note 11, at 29 (\xe2\x80\x9cThe function of a diplomatic\nmission\xe2\x80\x9d includes \xe2\x80\x9creport[ing] to the sending government on all matters of\nimportance to it\xe2\x80\x9d); Vienna Convention on Diplomatic Relations art.\n3.1(d), Apr. 18, 1961, 500 U.N.T.S. 95, 98 (functions of diplomatic missions include \xe2\x80\x9c[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government\nof the sending State\xe2\x80\x9d); 2 Foreign Affairs Manual (\xe2\x80\x9cFAM\xe2\x80\x9d) 113.1.c.10\n(responsibilities of a U.S. Chief of Mission include \xe2\x80\x9creporting significant\npolitical, economic, and societal developments occurring abroad\xe2\x80\x9d).\nThe State Department also identified various forms of public diplomacy\xe2\x80\x94namely, \xe2\x80\x9coutreach to Palestinian-Americans, Palestinians in the\nUnited States, or interested Americans on matters relevant to the Palestinian community.\xe2\x80\x9d May 31, 2018 E-mail, supra note 1, att. at 7. That, too, is\na typical and accepted incident of diplomacy. See, e.g., Vienna Convention on Diplomatic Relations art. 3(b), (e) (the functions of a diplomatic\nmission include \xe2\x80\x9c[p]rotecting in the receiving State the interests of the\nsending State and of its nationals\xe2\x80\x9d and \xe2\x80\x9c[p]romoting friendly relations\nbetween the sending State and the receiving State, and developing their\neconomic, cultural and scientific relations.\xe2\x80\x9d); Richard T. Arndt, The First\nResort of Kings: American Cultural Diplomacy in the Twentieth Century\n12\xe2\x80\x9315 (2005) (upon their reception as the United States\xe2\x80\x99 earliest ambassadors to France, Benjamin Franklin and later Thomas Jefferson published\ninformation and engaged with influential French citizens in an effort to\ncorrect misimpressions about America); accord, e.g., 1 FAM 114.2 (describing functions of \xe2\x80\x9c[a] bureau\xe2\x80\x99s public diplomacy office\xe2\x80\x9d). Representatives of non-recognized entities have long been permitted to pursue such\nactivities in the United States. In 1835, for example, Texas declared\nindependence from Mexico and the provisional government sent three\ncommissioners here, in part to enlist \xe2\x80\x9cpublic sympathy\xe2\x80\x9d for their cause.\nGoebel at 145. In the twentieth century, representatives of the Soviet\nUnion, Rhodesia, and Katanga likewise engaged in extensive public\ndiplomatic efforts in the United States in support of their governments.\nSee supra p. 17.\nLogistical and financial services provided to support PLO representatives\xe2\x80\x99 official trips to meet with high-level U.S. officials are also necessary incidents of diplomacy. Cf. OSTP Engagement with China, 35 Op.\n22\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nO.L.C. at 127 (activities \xe2\x80\x9cnecessary to carry out meaningful diplomatic\ninitiatives\xe2\x80\x9d fall within the President\xe2\x80\x99s exclusive authority over diplomacy). Without such support, those diplomatic trips might not happen. Cf. id.\n(Congress could not restrict U.S. officials\xe2\x80\x99 preparation and logistical\nsupport for diplomatic meetings, including the arrangement of travel and\nlodging). For similar reasons, financial and administrative activities\nrelated to diplomatic efforts, such as maintaining bank accounts and\npaying bills, are necessary incidents of diplomacy. Just as the President\ncould not conduct diplomacy abroad without the ability to make \xe2\x80\x9cexpenditures [necessary] for preparation, support, and facilitation of diplomatic\ndiscussion,\xe2\x80\x9d id., depriving foreign representatives of the ability to perform\nthese basic functions would prevent them from operating in our country.\nWe therefore conclude that section 1003 may not prohibit such diplomatic\nactivities if the Executive Branch wishes to authorize them.\nIn reaching this conclusion, we are mindful that the Executive Branch\nhas at times acted consistently with section 1003\xe2\x80\x99s restrictions. For example, in authorizing the PLO\xe2\x80\x99s Washington mission in 1994, the State\nDepartment instructed the PLO that the mission could stay open only if\nthe President could continue complying with the ATA waiver provision.\nSee Boswell Letter at 1. And in 1997, State directed the PLO to suspend\nits Washington office because Congress had allowed the statutory waiver\nauthority to lapse. See Letter for Hasan Abdel Rahman, Chief Representative, Palestine Liberation Organization, from Eric J. Boswell, Assistant\nSecretary of State for Diplomatic Security (Aug. 8, 1997).\nAt the same time, we must judge those episodes against the broader executive practice. Those episodes may well reflect the Executive Branch\xe2\x80\x99s\ndetermination that compliance with section 1003 would support the President\xe2\x80\x99s diplomatic objectives or his efforts to win support for a renewed\nwaiver authority. See, e.g., Zivotofsky, 135 S. Ct. at 2107 (Thomas, J.,\nconcurring in part and dissenting in part) (\xe2\x80\x9c[T]he argument from Presidential acquiescence here is particularly weak\xe2\x80\x9d where the \xe2\x80\x9cstatute is consistent with the President\xe2\x80\x99s longstanding policy\xe2\x80\x9d); Haig v. Agee, 453 U.S.\n280, 302 (1981) (\xe2\x80\x9c[T]he continued validity of a power is not diluted\nsimply because there is no need to use it.\xe2\x80\x9d). Moreover, those episodes\nmust be considered against the Executive Branch\xe2\x80\x99s repeated objections to\nthe actual or potential burdens imposed by section 1003, including this\nOffice\xe2\x80\x99s two opinions on the subject, President Reagan\xe2\x80\x99s 1987 signing\n23\n\n\x0c42 Op. O.L.C. __ (Sept. 11, 2018)\n\nstatement, and statements of Presidents since objecting as a matter of\nconstitutional principle to the ATA and similar restrictions.\nWe also do not dispute that some of section 1003\xe2\x80\x99s prohibitions may\notherwise be justified as regulations of commerce within the United\nStates. Congress has the authority under Article I to regulate any nondiplomatic activities conducted by the PLO, but those measures may not\ninvade the President\xe2\x80\x99s exclusive authority over diplomacy.16 In addition,\nalthough Congress has reduced section 1003\xe2\x80\x99s potential for interference\nby permitting the President to waive section 1003\xe2\x80\x99s prohibitions, that\nwaiver provides no help if its conditions are not met and the Executive\nBranch wishes to authorize the PLO\xe2\x80\x99s Washington office to remain open\nand to engage in particular diplomatic activities. To the extent that the\nconditions for the waiver stand in the way, Congress may not \xe2\x80\x9cburden or\ninfringe the President\xe2\x80\x99s exercise of a core constitutional power by attaching conditions precedent to the exercise of that power.\xe2\x80\x9d Placing of United\nStates Armed Forces Under United Nations Operational or Tactical\nControl, 20 Op. O.L.C. 182, 186\xe2\x80\x9388 (1996) (concluding that a provision\nallowing the President to waive a restriction on national security grounds\nwith advance notice to Congress was insufficiently protective of his\nexclusive authority to control when and where to deploy U.S. forces).\nCongress has not granted the President the authority to waive section\n1003 for purely diplomatic reasons, and the provision therefore impermissibly constrains the President\xe2\x80\x99s exclusive authority over the conduct of\ndiplomacy.\nIn sum, if the President chooses to allow the PLO to pursue diplomatic\nendeavors in the United States, then Congress may not impede that decision. For that reason, we informally advised the State Department that the\nPLO\xe2\x80\x99s Washington office could remain open between November 2017\nand September 2018. By the same token, if the President determines that\nSee, e.g., OSTP Engagement with China, 35 Op. O.L.C. at 124 (although \xe2\x80\x9cCongress\nmay use its spending power to decline to appropriate money or place conditions on its\nappropriations,\xe2\x80\x9d it cannot use that power to circumvent the President\xe2\x80\x99s exclusive foreignaffairs authorities); Delegations to U.N. Agencies, 33 Op. O.L.C. at 237 (\xe2\x80\x9c[T]he Executive\nBranch has long adhered to the view that Congress cannot use the appropriations power to\ncontrol a Presidential power that is beyond its direct control.\xe2\x80\x9d (citations and quotation\nmarks omitted)); The President\xe2\x80\x99s Compliance with the \xe2\x80\x9cTimely Notification\xe2\x80\x9d Requirement\nof Section 501(b) of the National Security Act, 10 Op. O.L.C. 159, 169\xe2\x80\x9370 (1986) (similar).\n16\n\n24\n\n\x0cStatutory Restrictions on the PLO\xe2\x80\x99s Washington Office\n\nclosing the PLO office and enforcing section 1003\xe2\x80\x99s restrictions is in the\ninterest of United States foreign policy, that action too would fall within\nhis exclusive authority over the conduct of diplomacy. See 1988 Cooper\nMemorandum at 22; supra note 4. On September 10, 2018, the Executive\nBranch made that determination, and the PLO\xe2\x80\x99s Washington office must\nnow cease operating unless or until the President deems it within the\ninterest of the United States to reopen.\nIII.\nFor the foregoing reasons, we advised that Congress could not require\nthe Secretary of State to close the PLO\xe2\x80\x99s Washington office or to prohibit\nthe PLO from performing the diplomatic activities described in this opinion.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n25\n\n\x0c'