b'Promotions of Judge Advocates General Under\nSection 543 of the National Defense\nAuthorization Act for Fiscal Year 2008\nSection 543 of the National Defense Authorization Act for Fiscal Year 2008 does not automatically\nadvance incumbent Judge Advocates General to a three star general officer grade, but rather such\npromotion requires a separate appointment by the President, by and with the advice and consent of\nthe Senate.\nThe incumbent Judge Advocates General may continue to serve out their full terms in their present two\nstar grades, though the President may nominate them for promotion to the higher grade at any time,\nif he so chooses.\n\nApril 14, 2008\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nSection 543 of the National Defense Authorization Act for Fiscal Year 2008,\nPub. L. No. 110-181, 122 Stat. 3, 114 (2008) (\xe2\x80\x9cNDAA\xe2\x80\x9d), amended sections\n3037(a), 5148(b), and 8037(a) of title 10 of the United States Code to provide that\neach of the Judge Advocates General (\xe2\x80\x9cTJAGs\xe2\x80\x9d) of the Army, Navy, and Air\nForce has the grade of lieutenant general or vice admiral, depending on the service\n(in each case, a three star general officer grade), while serving as TJAG. 1 Before\nenactment of the NDAA, the TJAGs were required to hold officer grades of \xe2\x80\x9cnot\nlower than\xe2\x80\x9d two stars while so serving, 10 U.S.C. \xc2\xa7\xc2\xa7 3037(a), 5148(b), 8037(a)\n(2006), and each of the incumbent TJAGs is currently a two star officer. Your\noffice has asked for our opinion whether section 543 automatically advances the\nincumbent TJAGs to the three star grade or whether such promotion requires\nseparate appointment by the President, by and with the advice and consent of the\nSenate. 2\n\n1\n\nFor example, with respect to the Navy TJAG, section 5148(b) of title 10, as amended by section\n543 of the NDAA, now provides:\nThere is in the executive part of the Department of the Navy the Office of the Judge\nAdvocate General of the Navy. The Judge Advocate General shall be appointed by the\nPresident, by and with the advice and consent of the Senate, for a term of four years.\nHe shall be appointed from judge advocates of the Navy or the Marine Corps who are\nmembers of the bar of a Federal court or the highest court of a State and who have had\nat least eight years of experience in legal duties as commissioned officers. The Judge\nAdvocate General, while so serving, has the grade of vice admiral or lieutenant general, as appropriate.\n10 U.S.C. \xc2\xa7 5148(b) (as amended by the NDAA) (emphasized language added by section 543).\n2\nLetter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal\nCounsel, from William J. Haynes II, General Counsel, Department of Defense (Jan. 20, 2008).\n\n70\n\n\x0cPromotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008\n\nThe new language added by section 543 speaks in the present tense: \xe2\x80\x9cThe Judge\nAdvocate General, while so serving, has the grade of\xe2\x80\x9d a three star general officer\n(emphasis added). It might be suggested that this language\xe2\x80\x94by specifying that\neach TJAG \xe2\x80\x9chas\xe2\x80\x9d the three star grade \xe2\x80\x9cwhile so serving\xe2\x80\x9d as TJAG\xe2\x80\x94has the effect\nof automatically promoting the incumbent TJAGs to the higher, three star officer\ngrade without any separate appointment. We believe, however, that this is not the\nbetter interpretation of the statute (and would raise significant constitutional\nissues). Rather, we believe that section 543 is best read to preserve the traditional\nunderstanding, consistent with similar provisions throughout title 10 and the\nsettled treatment of grade promotions as appointments to constitutional offices,\nthat TJAG promotions to the higher specified officer grade will occur through\nseparate appointments by the President, by and with the advice and consent of the\nSenate. Under this reading, the effect of section 543 is to provide that, whereas\nunder the prior statute the President had discretion to appoint TJAGs to an officer\ngrade of two stars or higher, now when the President nominates and appoints\nofficers to TJAG positions, he must also nominate and appoint them to the\nspecified three star grade. We do not believe that section 543 can reasonably be\nread to terminate the current terms of the incumbent two star TJAGs or (what\nwould be similarly problematic) to require that the President nominate the\nincumbent TJAGs for promotion to three star grade before the end of their current\nterms\xe2\x80\x94though the President, of course, may choose to do so.\nCommissioned military officers are \xe2\x80\x9cOfficers of the United States\xe2\x80\x9d for purposes\nof the Appointments Clause of the Constitution, see Weiss v. United States, 510\nU.S. 163, 170 (1994); Shoemaker v. United States, 147 U.S. 282, 301 (1893), and\neach promotion of a military officer from one grade level to the next is considered\na separate appointment to a new office, see Dysart v. United States, 369 F.3d\n1303, 1306 (Fed. Cir. 2004) (permanent grade promotion); D\xe2\x80\x99Arco v. United\nStates, 441 F.2d 1173 (Ct. Cl. 1971) (en banc) (temporary grade promotion).\n\xe2\x80\x9cPromotion . . . is as much or as little within the President\xe2\x80\x99s constitutional power\nof appointment as an original appointment, and is subject . . . to the same considerations.\xe2\x80\x9d Issuance of Commission in Name of Deceased Army Officer, 29 Op.\nAtt\xe2\x80\x99y Gen. 254, 256 (1911); accord Promotion of Marine Officer, 41 Op. Att\xe2\x80\x99y\nGen. 291, 292 (1956) (considering the constitutionality of restrictions on the\nPresident\xe2\x80\x99s authority temporarily to promote a commissioned officer by recess\nappointment).\nAccordingly, the promotion of a military officer to a higher grade (like any\nappointment to a new office in the Executive Branch) requires appointment by the\nPresident, by and with the advice and consent of the Senate, unless Congress, with\nrespect to \xe2\x80\x9cinferior Officers,\xe2\x80\x9d has vested the appointment power in \xe2\x80\x9cthe President\nalone, in the Courts of Law, or in the Heads of Departments,\xe2\x80\x9d U.S. Const. art. II,\n\xc2\xa7 2, cl. 2, or unless the President appoints an officer pursuant to the requirements\nof the Recess Appointments Clause, id. art. II, \xc2\xa7 2, cl. 3. Traditionally, each\npromotion of a senior military officer has been done by such a procedure\xe2\x80\x94\n\n71\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\npresidential appointment with Senate confirmation (or, on occasion, recess\nappointment pursuant to the Constitution)\xe2\x80\x94whether or not the promotion is\ncarried out pursuant to specific statutory authority. See Promotion of Marine\nOfficer, 41 Op. Att\xe2\x80\x99y Gen. at 291\xe2\x80\x9392; see also Promotion of Army Officers, 30 Op.\nAtt\xe2\x80\x99y Gen. 177, 179 (1913) (\xe2\x80\x9cThe provisions of the Constitution, therefore, operate\ndirectly upon this [grade promotion], and, without the intervention of Congress,\nobliges the President to nominate, and by and with the advice and consent of the\nSenate, to appoint thereto.\xe2\x80\x9d); Issuance of Commission in Name of Deceased Army\nOfficer, 29 Op. Att\xe2\x80\x99y Gen. at 256 (\xe2\x80\x9cPromotion in the Army is . . . an appointment\nto a higher office therein; and this fact is illustrated and confirmed by the long\nestablished practice of submitting nominations for promotion in the Army to the\nSenate for confirmation and of thereafter issuing a commission for the higher\noffice.\xe2\x80\x9d).\nThis traditional approach to the appointment of military officers and their promotion to higher officer grades is reflected throughout title 10. Section 601, for\nexample, authorizes the President to designate particular positions of importance\nand responsibility within the services to carry senior officer grades of three or four\nstars (lieutenant general/vice admiral or general/admiral, respectively), and\nprovides that \xe2\x80\x9c[a]n officer assigned to any such position has the grade specified for\nthat position if he is appointed to that grade by the President, by and with the\nadvice and consent of the Senate.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 601(a) (2000). The express\ndistinction in section 601 between the \xe2\x80\x9cassign[ment]\xe2\x80\x9d to the \xe2\x80\x9cposition\xe2\x80\x9d in question\nand the \xe2\x80\x9cappoint[ment]\xe2\x80\x9d to the specified officer \xe2\x80\x9cgrade\xe2\x80\x9d associated with that\nposition reflects the traditional understanding that the officer\xe2\x80\x99s assignment or\nappointment to a specific military position is distinct from his appointment to the\nhigher grade associated with that position. See, e.g., 152 Cong. Rec. 4640 (2006)\n(reporting nominations received March 30, 2006) (nomination of Lt. Gen. Michael\nD. Rochelle \xe2\x80\x9cfor appointment in the United States Army to the grade indicated\nwhile assigned to a position of importance and responsibility under title 10,\nU.S.C., section 601\xe2\x80\x9d). Similarly, section 624, which provides for the promotion of\nofficers recommended for promotion by selection boards convened under section\n611, makes it clear that such promotions are \xe2\x80\x9c[a]ppointments\xe2\x80\x9d and specifies that\n\xe2\x80\x9c[a]ppointments under this section shall be made by the President, by and with the\nadvice and consent of the Senate, except that appointments under this section in\nthe grade of first lieutenant or captain, in the case of officers of the Army, Air\nForce, or Marine Corps, or lieutenant (junior grade) or lieutenant, in the case of\nofficers of the Navy, shall be made by the President alone.\xe2\x80\x9d Id. \xc2\xa7 624(c).\nSeveral provisions of title 10 that establish particular positions for military\nofficers have for decades specified the officer grade associated with the position\nusing language essentially identical to section 543\xe2\x80\x99s, and the promotions to these\nofficer grades have long been made through separate appointments by the\nPresident, by and with the advice and consent of the Senate. For example, section\n152, establishing the position of Chairman of the Joint Chiefs of Staff, provides\n\n72\n\n\x0cPromotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008\n\nthat \xe2\x80\x9c[t]he Chairman, while so serving, holds the grade of general or, in the case of\nan officer of the Navy, admiral.\xe2\x80\x9d Id. \xc2\xa7 152(c) (emphasis added). Although section\n152 specifically provides for appointment to the position of Chairman of the Joint\nChiefs (by the President with Senate confirmation), id. \xc2\xa7 152(a), nominations for\nappointment to this position have also traditionally included separate nominations\nfor the officer grade associated with the position. See, e.g., 153 Cong. Rec. 17,916\n(2007) (reporting nominations received June 28, 2007) (nomination of Adm.\nMichael G. Mullen \xe2\x80\x9cfor appointment as the Chairman of the Joint Chiefs of Staff\nand appointment to the grade indicated [admiral] while assigned to a position of\nimportance and responsibility under title 10, U.S.C., sections 152 and 601\n[Chairman of the Joint Chiefs]\xe2\x80\x9d) (emphasis added). The same is true for the\nposition of Vice Chairman of the Joint Chiefs. See 10 U.S.C. \xc2\xa7\xc2\xa7 154(a) (appointment to position of Vice Chairman by the President with Senate confirmation),\n154(f) (Vice Chairman, \xe2\x80\x9cwhile so serving, holds the grade of general,\xe2\x80\x9d etc.); see,\ne.g., 153 Cong. Rec. 17,916, 17,916\xe2\x80\x9317 (2007) (reporting nominations received\nJune 28, 2007) (nomination of Gen. James E. Cartwright \xe2\x80\x9cfor appointment as the\nVice Chairman of the Joint Chiefs of Staff and appointment to the grade indicated\nwhile assigned to a position of importance and responsibility under title 10,\nU.S.C., sections 601 and 154\xe2\x80\x9d) (emphasis added). It is also true for a number of\nother positions in the military service. See, e.g., 10 U.S.C. \xc2\xa7\xc2\xa7 3036(b) (2000)\n(providing for appointment of several officers, including Surgeon General of the\nArmy, by the President with Senate confirmation), 3036(b)(2) (specifying that the\nSurgeon General, \xe2\x80\x9cwhile so serving, has the grade of lieutenant general\xe2\x80\x9d)\n(emphasis added); 153 Cong. Rec. 27,258, 27,260 (2007) (reporting nominations\nreceived on Oct. 16, 2007) (nomination of Maj. Gen. Eric Schoomaker \xe2\x80\x9cfor\nappointment as the Surgeon General, United States Army, and appointment to the\ngrade indicated while assigned to a position of importance and responsibility\nunder title 10, U.S.C., sections 601 and 3036\xe2\x80\x9d) (emphasis added).\nIndeed, with respect to the appointment of the incumbent Air Force TJAG,\nessentially the same practice was followed under the previous TJAG appointment\nprovision, which, before enactment of section 543, provided that \xe2\x80\x9c[t]he Judge\nAdvocate General, while so serving, shall hold a grade not lower than [a two star\ngrade].\xe2\x80\x9d E.g., 10 U.S.C. \xc2\xa7 8037(a) (2006) (Air Force TJAG) (emphasis added).\nSee, e.g., 152 Cong. Rec. 2064, 2065 (2006) (reporting nominations confirmed on\nFeb. 16, 2006) (nomination of Maj. Gen. Jack L. Rives \xe2\x80\x9cfor appointment in the\nregular Air Force of the United States to the position and grade indicated under\ntitle 10, U.S.C., section 8037\xe2\x80\x9d) (emphasis added). 3 Although the phrase \xe2\x80\x9cshall\nhold\xe2\x80\x9d might in some sense be even more imperative than the current \xe2\x80\x9chas\xe2\x80\x9d with\nrespect to the grade specification for TJAG positions, still a distinction was made,\n\n3\nMajor General Rives held the permanent grade of major general at the time of his appointment to\nthe office of TJAG and to the grade of major general while serving in that office.\n\n73\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nfor appointment purposes, between the TJAG position itself and the associated\ngrade.\nWe recognize that TJAG positions might not be designated as positions \xe2\x80\x9cof\nimportance and responsibility\xe2\x80\x9d under section 601 and that TJAGs might not\nalways be selected for promotion by selection boards convened under section 611,\nsee, e.g., 10 U.S.C. \xc2\xa7 3037(d) (2000) (providing that in selecting an officer for\nrecommendation as Army TJAG, the Secretary of the Army is to propose an\nofficer recommended for promotion by a board of officers that, \xe2\x80\x9cinsofar as\npracticable,\xe2\x80\x9d is subject to the procedures applicable to selection boards under\nsection 611). Therefore, the appointment of TJAGs to a higher officer grade will\nnot necessarily rest on the separate statutory authority of section 601 (as do grade\npromotions of officers serving in positions designated as positions of importance\nand responsibility) or section 624 (as do grade promotions of officers recommended for promotion by selection boards). To the extent TJAGs are selected for\npromotion by selection boards convened under section 611, section 624 would\ngovern their promotions to the three star grade, and it, like section 601, provides\nfor grade promotion by appointment of the President, by and with the advice and\nconsent of the Senate. Id. \xc2\xa7 624(c). If, however, there is no applicable statute\nspecifically providing for the appointment to the separate office of the higher\nofficer grade, the Appointments Clause of the Constitution supplies all needed\nauthority, and its default rule specifies appointment by the President, by and with\nthe advice and consent of the Senate. Promotion of Army Officers, 30 Op. Att\xe2\x80\x99y\nGen. at 179; see U.S. Const. art. II, \xc2\xa7 2, cl. 2.\nWe assume that Congress was aware when it enacted section 543 of the NDAA\nof the established understanding that grade promotions require distinct appointments and the traditional appointment practice under similar provisions of title 10.\nSee Comm\xe2\x80\x99r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993); Lorillard\nv. Pons, 434 U.S. 575, 580\xe2\x80\x9381 (1978). Because the amended TJAG grade specification provisions track closely the corresponding language used for a number of\nthe other military positions discussed above, we believe that section 543 is best\nread, consistent with the related provisions of title 10, to preserve the traditional\nunderstanding and settled practice with respect to such promotions for TJAGs.\nNothing in the legislative history of the NDAA suggests Congress\xe2\x80\x99s intent to do\notherwise. Moreover, interpreting section 543 to dispense with the appointment\nprocess and provide for grade promotions by operation of law would raise\nsignificant constitutional concerns because Congress may not appoint an officer to\na constitutional office. See Shoemaker, 147 U.S. at 300\xe2\x80\x9301 (\xe2\x80\x9c[W]hile Congress\nmay create an office, it cannot appoint the officer.\xe2\x80\x9d); Dysart, 369 F.3d at 1314\n(construing section 624 of title 10 not to provide for promotions by operation of\nlaw because such a reading would conflict with the Constitution). Accordingly, we\n\n74\n\n\x0cPromotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008\n\nconclude that the TJAG grade promotion provisions, as amended by section 543,\ncontemplate separate appointment of TJAGs to the higher specified officer grade. 4\nWe believe the incumbent TJAGs may continue to serve out their full terms in\nthe two star grade, though the President may, of course, nominate them for\npromotion to the higher grade at any time, if he so chooses. Applying the new\ngrade specification to the incumbents could be deemed to remove them from\noffice before the end of their current terms because they do not hold the three star\ngrade now specified for their positions. That result is certainly not demanded by\nthe language of section 543, finds no support in its legislative history, and should\nbe avoided because it is well established that Congress may not remove an\nexecutive officer from office other than by impeachment (unless the office itself is\nlegitimately abolished). See Myers v. United States, 272 U.S. 52, 122 (1926);\nBowsher v. Synar, 478 U.S. 714, 723 (1986). Similarly, we believe the amended\nstatutes are not reasonably read to require the President to submit nominations for\ngrade increases for the current TJAGs in mid-term. Again, neither the statute\xe2\x80\x99s text\nnor its legislative history requires that result. Usually, we construe appointment\nstatutes to apply prospectively (here to any new appointment of an officer to a\nterm as TJAG made after enactment of the statute). See, e.g., Applicability of\nAppointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent\nOfficeholders, 12 Op. O.L.C. 286, 288 (1988). In any event, as noted, if the statute\nwere read to require the President to nominate particular individuals for appointment to particular military offices, like the specified higher officer grade, such an\ninterpretation would raise significant constitutional concerns, as the President must\nretain sufficient discretion in selecting nominees for Executive Branch offices. See\nIssuance of Commission in Name of Deceased Officer, 29 Op. Att\xe2\x80\x99y Gen. at 256\n(\xe2\x80\x9cCongress may point out the general class of individuals from which an appointment must be made, if made at all, but it cannot control the President\xe2\x80\x99s discretion\nto the extent of compelling him to commission a designated individual.\xe2\x80\x9d); Pub.\nCitizen v. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring)\n(the Appointments Clause gives \xe2\x80\x9c[n]o role whatsoever . . . either to the Senate or\nto Congress as a whole in the process of choosing the person who will be nominated for appointment\xe2\x80\x9d).\nIn sum, we conclude that sections 3037(a), 5148(b), and 8037(a) of title 10, as\namended by section 543 of the NDAA, continue to contemplate separate appointment by the President, by and with the advice and consent of the Senate, for TJAG\npromotions to the higher officer grade. This interpretation is consistent with the\n4\n\nThat Congress has sometimes used more explicit language to require separate appointment to a\nspecified grade, such as for the appointment of the Assistant TJAG of the Army to a permanent two star\ngrade, see 10 U.S.C. \xc2\xa7 3037(a) (2000) (\xe2\x80\x9cAn officer appointed as Assistant Judge Advocate General [of\nthe Army] who holds a lower regular grade shall be appointed in the regular grade of major general.\xe2\x80\x9d),\ndoes not negate the settled understanding of the \xe2\x80\x9cwhile so serving\xe2\x80\x9d grade provisions that apply to the\nTJAGs and various other officer positions in title 10.\n\n75\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ntraditional understanding that each military officer grade is a separate office and\neach promotion of a senior military officer to a higher officer grade is made by\npresidential appointment, by and with the advice and consent of the Senate. It is\nalso consistent with prior TJAG appointment procedures and with related provisions of title 10 providing for the appointment and promotion of military officers\nin various grades and positions. The nomination and appointment of a TJAG to the\nhigher three star officer grade may be done simultaneously with the nomination\nand appointment of the officer to the TJAG position itself. The President is not\nrequired by section 543 to nominate the incumbent TJAGs to the three star grade\nbefore their current terms end but is free to do so at any time.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n76\n\n\x0c'


b'Sequestration Exemption for the\nResolution Funding Corporation\n\xe2\x80\x9cBackup\xe2\x80\x9d payments made by the Department o f the Treasury to cover interest obligations\no f the Resolution Funding Corporation are not subject to sequestration under the\nBalanced Budget and Em ergency Deficit Control Act o f 1985.\n\nOctober 3, 1989\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD epartm en t o f th e T reasury\nan d th e\n\nA c t in g G e n e r a l C o u n s e l\n\nO f f ic e o f M a n a g e m e n t a n d B u d g e t\n\nThis responds to your request of September 29, 1989, for the opinion of\nthis Office on whether the Department of the Treasury (\xe2\x80\x9cTreasury\xe2\x80\x9d) and\nthe Office o f Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d) are correct in their deter\xc2\xad\nmination that \xe2\x80\x9cbackup\xe2\x80\x9d payments made by Treasury to cover interest\nobligations o f the Resolution Funding Corporation (\xe2\x80\x9cRefcorp\xe2\x80\x9d) would not\nbe subject to sequestration under the Balanced Budget and Emergency\nDeficit Control Act o f 1985, as amended, 2 U.S.C. \xc2\xa7\xc2\xa7 901-922 (\xe2\x80\x9cBalanced\nBudget Act\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d). The Financial Institutions Reform, Recovery, and\nEnforcement Act o f 1989, Pub. L. No. 101-73, 103 Stat. 183 (\xe2\x80\x9cFIRREA\xe2\x80\x9d),\nexempts Refcorp from any sequestration order under the Balanced\nBudget Act. We conclude that Treasury and OMB are correct that this\nexemption extends to Treasury\xe2\x80\x99s backup payments.\nRefcorp is a privately capitalized corporation organized solely to pro\xc2\xad\nvide funds to the Resolution Trust Corporation to resolve the financial\nproblems o f the thrift industry. Federal Home Loan Bank Act (\xe2\x80\x9cFHLB\nAct\xe2\x80\x9d), \xc2\xa7 21B(a), as added by FIRREA, \xc2\xa7 511(a), 103 Stat. at 394. In addi\xc2\xad\ntion to receiving private funding from the thrift industry, Refcorp may\nissue \xe2\x80\x9cbonds, notes, debentures, and similar obligations in an aggregate\namount not to exceed $30,000,000,000.\xe2\x80\x9d \xc2\xa7 21B(f)(l) o f the FHLB Act, 103\nStat. at 400. Interest on these obligations is to be paid by Refcorp from\nfour specified sources. Id. \xc2\xa7 21B(f)(2). To cover shortfalls from these\nsources, Congress established a \xe2\x80\x9cTreasury [b]ackup,\xe2\x80\x9d directing the\nSecretary o f the Treasury to \xe2\x80\x9cpay to [Refcorp] the additional amount due,\nwhich shall be used by the [Refcorp] to pay such interest.\xe2\x80\x9d See \xc2\xa7\n21B(f)(2)(E)(i) o f the FHLB Act, 103 Stat. at 401-02. The FIRREA \xe2\x80\x9cappro\xc2\xad\n309\n\n\x0cpriate[s] to the Secretary [of the Treasury] for fiscal year 1989 and each\nfiscal year thereafter, such sums as may be necessary to [fund]\xe2\x80\x9d\nTreasury\xe2\x80\x99s backup payments. Id. \xc2\xa7 21B(f)(2)(E)(iii).\nTreasury and OMB have concluded that Treasury\xe2\x80\x99s backup payments to\nRefcorp are not subject to sequestration under the Balanced Budget Act.\nThat Act directs the President under certain circumstances to sequester\nappropriated funds to meet targeted budget reductions. 2 U.S.C. \xc2\xa7\xc2\xa7 901902. The Act defines \xe2\x80\x9csequesterable resource\xe2\x80\x9d as\nnew budget authority; unobligated balances; new loan guar\xc2\xad\nantee commitments o r limitations; new direct loan obliga\xc2\xad\ntions, commitments, or limitations; spending authority as\ndefined in section 651(c)(2) o f [title 2]; and obligation limi\xc2\xad\ntations for budget accounts, programs, projects, and activi\xc2\xad\nties that are not exempt from reduction or sequestration\nunder this subchapter.\nId. \xc2\xa7 907(9). Congress has exempted from sequestration a number of\n\xe2\x80\x9cbudget accounts and activities.\xe2\x80\x9d Id. \xc2\xa7 905(g). On August 9, 1989,\n\nCongress amended the Balanced Budget Act to add Refcorp to the list of\n\xe2\x80\x9cbudget accounts and activities\xe2\x80\x9d that \xe2\x80\x9cshall be exempt from reduction\nunder any order\xe2\x80\x9d issued under the Balanced Budget Act. FIRREA, \xc2\xa7\n743(a)(4), 103 Stat. at 437. The simple question posed is whether\nCongress intended by this amendment to exempt from sequestration\nTreasury payments to Refcorp made pursuant to \xc2\xa7 21B(f)(2)(E) of the\nFHLB Act.\nRefcorp is a \xe2\x80\x9cmixed-ownership Government corporation,\xe2\x80\x9d see FIRREA,\n\xc2\xa7 511(b)(1), 103 Stat. at 406 (amending 31 U.S.C. \xc2\xa7 9101(2)(M) to include\nRefcorp), which, apart from the proceeds o f obligations issued pursuant\nto \xc2\xa7 511(a) o f FIRREA, is funded only through investments by and assess\xc2\xad\nments against the Federal Home Loan Banks, id. 103 Stat. at 396-97, 401;\nassessments against Savings Association Insurance Fund members, id.\n103 Stat. at 400; and FSLIC Resolution Fund receivership proceeds. Id.\nOMB has advised us that for budget purposes Refcorp is a private corpo\xc2\xad\nration entirely outside the budget process. Thus Refcorp is not included\nin the calculation o f the budget \xe2\x80\x9cdeficit,\xe2\x80\x9d 2 U.S.C. \xc2\xa7 622(6), which forms\nthe basis for sequestration under the Balanced Budget Act, 2 U.S.C. \xc2\xa7\n901(a)(1), and is not subject to the Balanced Budget Act. Consequently,\nthere would have been no need to exempt Refcorp itself from reductions\nunder the Balanced Budget Act. The only conceivable purpose of the\nexemption for Refcorp therefore must have been to ensure that payments\nto Refcorp such as the Treasury\xe2\x80\x99s backup payments would be exempt\nfrom reduction. Accordingly, we believe that the exemption must be\nunderstood as extending to these payments.\nWe recognize that Congress expressly exempted payments to other\n310\n\n\x0cfunds and entities, see 2 U.S.C. \xc2\xa7 905(g)(1)(A). We do not believe that\nCongress\xe2\x80\x99 failure to exempt the Treasury payments expressly, however,\nreflects an intent that they be sequesterable. If the amendment adding\nRefcorp were construed not to extend to the Treasury backup payments,\nit would be meaningless.\nThe legislative history provides no guidance as to Congress\xe2\x80\x99 intent in\nadding the exemption for Refcorp. H.R. Conf. Rep. No. 222, 101st Cong.,\n1st Sess. 436 (1989). However, construing the exemption to encompass\nTreasury\xe2\x80\x99s backup payments furthers the indisputable congressional pur\xc2\xad\npose o f saving the thrift industry at the least cost to the government.\nInterpreting the exemption not to extend to the Treasury\xe2\x80\x99s payments\ncould frustrate, if not defeat, the objectives of FIRREA by seriously\nundermining the marketability o f the obligations issued by Refcorp,\nand/or forcing purchasers to demand a higher rate o f return to offset the\nrisk o f sequestration.\nFor the reasons stated, we conclude that Treasury and OMB are cor\xc2\xad\nrect in their determination that backup payments made by Treasury to\ncover interest payment obligations of Refcorp are not sequesterable\nunder the Balanced Budget Act.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n311\n\n\x0c'


b'Issues Raised by Provisions Directing Issuance of\nOfficial or Diplomatic Passports\n\nS ectio n 129(e) o f Pub. L. No. 102-138 an d section 503 o f Pub. L . No. 102-140 are unconstitu\xc2\xad\ntio n al to th e ex ten t th at they purport to lim it the P resident\xe2\x80\x99s ability to issue m ore than one\no fficial o r d ip lo m atic passport to U n ited S tates governm ent personnel.\nT h e sin g le-p assp o rt requirem ents set fo rth in section 129(e) and section 503 are severable from\nth e re m a in d e r o f the statutes in w hich they appear.\nT h e P re sid en t is co n stitutionally authorized to decline to enforce the portions o f section 129(e)\nan d sectio n 503 th at purport to lim it the issuance o f official and diplom atic passports.\n\nJanuary 17, 1992\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nC ou n sel\n\nto the\n\nP r e s id e n t\n\nThis memorandum responds to your request for our opinion on several\nissues raised by the nearly identical provisions of section 129(e) of the For\xc2\xad\neign Relations Authorization A ct for Fiscal Years 1992 and 1993, Pub. L.\nNo. 102-138, 105 Stat. 647, 662 (1991), and section 503 of Departments of\nCommerce, Justice and State, the Judiciary, and Related Agencies Appro\xc2\xad\npriations Act, 1992, Pub. L. No. 102-140, 105 Stat. 782, 820 (1991), an act\nmaking appropriations for the State Department and other agencies. Spe\xc2\xad\ncifically, you asked whether these provisions are unconstitutional to the extent\nthat they purport to prohibit the issuance of more than one official or diplo\xc2\xad\nm atic passport to United States government officials, whether they are\nseverable from the remainder o f the two bills, and whether the President\nmay decline to enforce them.1 For the reasons explained below, we con\xc2\xad\nclude that the relevant portions of section 129(e) and section 503 are\nunconstitutional to the extent that they limit the issuance o f official and\ndiplomatic passports and that those sections are severable from the remainder of\nthe two statutes. Under the circumstances, we further conclude that the Presi\xc2\xad\ndent is constitutionally authorized to decline to enforce these provisions.\n\n\'M em orandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel,\nfrom C. Boyden Gray, Counsel to the President (Oct. 23, 1991) (\xe2\x80\x9cOpinion Request\xe2\x80\x9d ).\n\n18\n\n\x0cI.\nSection 129 of Pub. L. No. 102-138 provides in part:\n(e)(1) REQUIREMENT OF SINGLE PASSPORT. \xe2\x80\x94 The\nSecretary of State shall not issue more than one official or\ndiplomatic passport to any official of the United States Gov\xc2\xad\nernment for the purpose of enabling that official to acquiesce\nin or comply with the policy of the majority of [the] Arab\nLeague nations of rejecting passports of, or denying entrance\nvisas to, persons whose passport or other documents reflects\nthat the person has visited Israel.\n(2) IMPLEMENTATION OF POLICY OF NONCOMPLI\xc2\xad\nANCE.\xe2\x80\x94 The Secretary of State shall promulgate such rules\nand regulations as are necessary to ensure that officials of the\nUnited States Government do not comply with, or acquiesce\nin, the policy of the majority of Arab League nations o f re\xc2\xad\njecting passports of, or denying entrance visas to, persons\nwhose passport or other documents reflect that the person has\nvisited Israel.2\nThe relevant portion of section 503 of Pub. L. No. 102-140 is nearly\nidentical:\n[Ninety] days after the enactment of this Act, none of the\nfunds provided in this Act shall be used by the Department of\nState to issue more than one official or diplomatic passport to\nany United States Government employee for the purpose of\nenabling that employee to acquiesce in or comply with the\npolicy of the majority of Arab league nations of rejecting pass\xc2\xad\nports of, or denying entrance visas to, persons whose passports\nor other documents reflect that that person has visited Israel.3\n2 105 Stat. at 662. By virtue of section 129(e)(3)(A), section 129(e) is effective January 26, 1992.\nBecause you have requested our opinion only as to those provisions that \xe2\x80\x9cpurport to forbid the issu\xc2\xad\nance o f more than one official or diplomatic passport to U.S. officials for the purpose o f enabling those\nofficials to acquiesce in\xe2\x80\x9d the Arab League policy described in section 129, we have so lim ited our review\nand will for ease o f reference refer to the operative portion of section 129, section 129(e). See Opinion\nRequest.\nWe note, however, that section 129 also prohibits issuance o f \xe2\x80\x9cany passport that is designated for\ntravel only to Israel.\xe2\x80\x9d Pub. L. No. 102-138, \xc2\xa7 129(d)(1), 105 Stat. at 661. To the extent that this\nprohibition applies to official and diplomatic passports, it suffers from the same constitutional defects\nas the prohibition on multiple passports.\n1 105 Stat. at 820. Like section 129 of Pub. L. No. 102-138, section 503 also prohibits the issuance of\nIsrael-only passports: \xe2\x80\x9cNone of the funds provided in this Act shall be used by the Departm ent o f State\nto issue any passport that is designated for travel only to Isra e l. . . . \xe2\x80\x9d Id. O ur discussion of section 503\nis limited to the provision that forbids the issuance of more than one official or diplomatic passport to\nU nited States government officials. See supra note 2. References to section 503 in this m emorandum\nshould be understood to be so limited.\n\n19\n\n\x0cThese provisions purport to effect a change in the State Department\xe2\x80\x99s\ncurrent practice in issuing official and diplomatic passports to government\npersonnel sent to the Middle East, which is described in the conference\nreport on Pub. L. No. 102-138: \xe2\x80\x9cOfficials o f the U.S. Government traveling\nin the Middle East are, as a general practice, issued two passports so that\nthey can travel to Israel and to Arab countries in compliance with the pass\xc2\xad\nport and visa policy of the majority of Arab League nations.\xe2\x80\x9d H.R. Conf. Rep.\nNo. 238, 102d Cong., 1st Sess. 107 (1991). You have asked our opinion whether\nlegislation banning continuation o f this practice is unconstitutional.\nThe State Department has concluded that section 129(e) and section 503\nwould unconstitutionally intrude on the President\xe2\x80\x99s authority to conduct di\xc2\xad\nplomacy on behalf o f the United States.4 In the State Department\xe2\x80\x99s view,\nthese provisions would \xe2\x80\x9cdirectly interfere with the President\xe2\x80\x99s ability to send\nhis diplomats abroad to negotiate with foreign governments,\xe2\x80\x9d id. at 7, and\n\xe2\x80\x9cinterfere with the discretion and flexibility needed by the President to carry\nout the exclusively executive function of foreign diplomacy,\xe2\x80\x9d id. at 12.5 Ac\xc2\xad\nco rd in g ly , the State D epartm ent concludes that these provisions are\nunconstitutional. Id. at 14.\nAs part o f its analysis, the State Department \xe2\x80\x9cexamined a variety o f pos\xc2\xad\nsibilities for carrying out diplomatic functions without the issuance of more\nthan one official or diplomatic passport,\xe2\x80\x9d but it was \xe2\x80\x9cunable to identify a\nsatisfactory alternative in a significant number of cases that would be af\xc2\xad\nfected by this legislation.\xe2\x80\x9d Id. at 5. These alternatives included: (1) \xe2\x80\x9ctravelling\nto either Israel or Arab League nations without presenting a passport;\xe2\x80\x9d (2)\n\xe2\x80\x9cask[ing] Israel not to stamp the passports of U.S. officials;\xe2\x80\x9d (3) \xe2\x80\x9cseekfing]\nadvance permission from the receiving Arab country every time a U.S. offi\xc2\xad\ncial would be entering that country with a passport reflecting travel to Israel;\xe2\x80\x9d\n(4) \xe2\x80\x9ccancelling a diplomatic or official passport that reflected travel to Israel\nwhenever the holder needed to travel to an Arab League nation, and reissuing\na new passport;\xe2\x80\x9d and (5) \xe2\x80\x9carranging negotiations so that travel to Israel fol\xc2\xad\nlowed travel to the Arab countries.\xe2\x80\x9d Id. at 5-6. The State Department rejected\nall o f these alternatives.6 After reviewing these options, it concluded:\n4 Memorandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel, from\nJamison M. Selby, Deputy Legal Advisei, Department of State (Jan. 3,1992) ("Selby Memorandum").\n\xe2\x80\x99 T he S tate D epartm ent also disputes C ongress\xe2\x80\x99s view, expressed in the text o f section 129(e) and\nsection 503, that issuing m ultiple passports to accomm odate travel to the M iddle East constitutes a\npractice o f \xe2\x80\x9cacquiesc[ing] in\xe2\x80\x9d or \xe2\x80\x9ccomplyfing] with" the Arab League policy. Selby M em orandum at\n2. In S tate\xe2\x80\x99s view, the issuance o f multiple passports is \xe2\x80\x9crather a challenge to [that policy], because the\nru les o f the boycott forbid the use of second passports to evade the policy.\xe2\x80\x9d Id. Nevertheless, the State\nD epartm ent recognizes that \xe2\x80\x9cCongress considers the issuance o f second passports as com pliance with\nthe A rab L eague policy.\xe2\x80\x9d Id.\n6O ption (1) was rejected because travel w ithout a passport \xe2\x80\x9cwould probably not be permitted by receiv\xc2\xad\ning states, would adversely impact U.S. bilateral relations in the region, and, if permitted, would expose\nU.S. officials to unacceptable personal risk.\xe2\x80\x9d Selby M emorandum at 6. Option (2) was rejected because\n\xe2\x80\x9ceven to propose it could adversely affect our relations with Israel, and, in any event, any such request would\nlikely be rejected by Israel." Id. Option (3) w as unacceptable because it \xe2\x80\x9cwould put our diplomatic travel at\nContinued\n\n20\n\n\x0cThus, in order to carry out [the single-passport requirement] in\nall cases, the President would have to make the abolition of\nthe Arab League passport policy the first item on his negotiat\xc2\xad\ning agenda and succeed in having that policy abolished before\nproceeding with substantive negotiations of great importance\nto all parties concerned. . . . [W]e believe that such an effort\nwould not succeed at this time.\nId. We defer to the State Department\xe2\x80\x99s expertise with respect to the practi\xc2\xad\n\ncal effects of section 129(e) and 503 and concur in its legal conclusions.\n\nII.\nThe necessary background for our analysis of the particular issues pre\xc2\xad\nsented here is the well-settled recognition of the President\xe2\x80\x99s broad authority\nover the Nation\xe2\x80\x99s foreign affairs. That authority flows from his position as\nhead of the unitary Executive and as Commander-in-Chief. See, e.g., U.S.\nConst, art. II, \xc2\xa7\xc2\xa7 1-3; Haig v. Agee, 453 U.S. 280, 291-92 (1981); U nited\nStates v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936). In\naddition, Section 2 of Article II of the Constitution specifically grants the\nPresident the \xe2\x80\x9cPower . . . to make Treaties\xe2\x80\x9d and to \xe2\x80\x9cappoint Ambassadors,\nother public Ministers and Consuls.\xe2\x80\x9d These constitutional provisions autho\xc2\xad\nrize the President to determine the form and manner in which the United\nStates will maintain relations with foreign nations and to direct the negotiation\nof treaties and agreements with them. See Issues Raised by Foreign Relations\nAuthorization Bill, 14 Op. O.L.C. 37 (1990) (\xe2\x80\x9cBarr Memorandum\xe2\x80\x9d).\nIn exercising the \xe2\x80\x9cfederal power over external affairs,\xe2\x80\x9d the President is\nnot subject to the interference of Congress:\n[T]he President alone has the power to speak or listen as a\nrepresentative of the nation. He makes treaties with the ad\xc2\xad\nvice and consent of the Senate; but he alone negotiates. Into\nthe field of negotiation the Senate cannot intrude; and Congress\nitself is powerless to invade it. As [John] Marshall said in his\ngreat argument of March 7, 1800, in the House of Representa\xc2\xad\ntives, \xe2\x80\x9cThe President is the sole organ of the nation in its external\nrelations, and its sole representative with foreign nations.\xe2\x80\x9d\n\n\xe2\x80\x98 (....continued)\nthe pleasure o f Arab governments.\xe2\x80\x9d Id. The State Department concluded that option (4) would cause\n\xe2\x80\x9c logistical problems" and might be viewed as inconsistent with the legislation. Id. Finally, option (S)\nwas rejected because it would be \xe2\x80\x9cunacceptable to Israel" and because it would \xe2\x80\x9conly resolve the prob\xc2\xad\nlem for a single trip.\xe2\x80\x9d Id. More importantly, \xe2\x80\x9cit would be impossible in complex negotiations involving\nrapid, repeated travel between Israel and Arab countries.\xe2\x80\x9d Id.\n\n21\n\n\x0cCurtiss-W right, 299 U.S. at 319 (quoting 10 Annals of Cong. 613 (1800))\n\n(emphasis in original). In other words, the President possesses \xe2\x80\x9cvery deli\xc2\xad\ncate, plenary and exclusive power . . . as the sole organ of the federal\ngovernment in the field of international relations.\xe2\x80\x9d Id. at 320. See also Barr\nM emorandum, 14 Op. O.L.C. at 38-39.\nThe President himself emphasized these principles in his signing state\xc2\xad\nment on Pub. L. No. 102-138:\nArticle II o f the Constitution confers the Executive power\nof the United States on the President alone. Executive power\nincludes the authority to receive and appoint ambassadors and\nto conduct diplomacy. Thus, under our system of government,\nall decisions concerning the conduct of negotiations with for\xc2\xad\neign governments are within the exclusive control o f the\nPresident. . . .\nThe Constitution . . . vests exclusive authority in the Presi\xc2\xad\ndent to control the timing and substance of negotiations with\nforeign governments and to choose the officials who will ne\xc2\xad\ngotiate on behalf of the United States.\nStatement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992\nand 1993, II Pub. Papers 1344 (Oct. 28, 1991) (\xe2\x80\x9cPresidential Signing Statement\xe2\x80\x9d).\nFrom the Executive\xe2\x80\x99s plenary authority to conduct the Nation\xe2\x80\x99s foreign\naffairs flow a number of specific executive powers that are of particular\nrelevance to the issue at hand. These include control over the issuance of\npassports, power to determine the content of communications with foreign\ngovernments, authority to conduct diplomacy, and authority to define the\ncontent of foreign policy. As we explain in more detail below, we conclude\nthat the infringement on these powers worked by section 129(e) and section\n503 would be unconstitutional.\nFirst, these provisions conflict with the long-accepted principle that the\nPresident, through delegates o f his choosing, has authority over issuance of\npassports for reasons of foreign policy or national security. Prior to the enact\xc2\xad\nment o f the first passport legislation, it was generally understood that the\nissuance of a passport was committed to the sole discretion of\nthe Executive and that the Executive would exercise this power\nin the interests of the national security and foreign policy of\nthe United States. This derived from the generally accepted\nview that foreign policy was the province and responsibility of\nthe Executive.\nH aig, 453 U.S. at 293.\n\n22\n\n\x0cFrom the outset, \xe2\x80\x9cCongress endorsed not only the underlying premise o f\nExecutive authority in the areas of foreign policy and national security, but\nalso its specific application to the subject of passports.\xe2\x80\x9d Id. at 294. In the\nearliest passport statutes, Congress expressly recognized the Executive\xe2\x80\x99s au\xc2\xad\nthority in that regard. See, e.g.. Act of Feb. 4, 1815, ch. 31, \xc2\xa7 10, 3 Stat.\n195, 199 (prohibiting travel to enemy country without passport issued by\nofficer \xe2\x80\x9cauthorized by the President\xe2\x80\x9d). Passport legislation enacted in 1856,\nwhich authorized the Secretary of State to grant and issue passports \xe2\x80\x9cunder\nsuch rules as the President shall designate and prescribe,\xe2\x80\x9d reinforced the\nestablished power of the Executive in this area. See Haig, 453 U.S. at 294\n(citing Act of Aug. 18, 1856, ch. 127, \xc2\xa7 23, 11 Stat. 52, 60). As noted by the\n1960 Congress, the 1856 Act\nmerely confirmed an authority already possessed and exer\xc2\xad\ncised by the Secretary of State. . .. This authority was ancillary\nto his broader authority to protect American citizens in for\xc2\xad\neign countries and was necessarily incident to his general\nauthority to conduct the foreign affairs of the United States\nunder the Chief Executive.\nStaff of Senate Comm, on Government Operations, 86th Cong., 2d Sess.,\nReorganization o f the Passport Functions o f the Department o f State 13\n(Comm. Print 1960) (\xe2\x80\x9cPassport Reorganization"). The Passport Act of 1926,\n\nch. 772, 44 Stat. 887, adopted the pertinent language of the 1856 Act. The\nlegislative history of the 1926 Act indicates congressional recognition of\nExecutive authority with respect to passports. See Validity o f Passports:\nHearings on H.R. 11947 Before the House Comm, on Foreign Affairs, 69th\nCong., 1st Sess. 5, 10-11 (1926). As the 1960 Senate staff report concluded:\n\xe2\x80\x9c [T]he authority to issue or withhold passports has, by precedent and law,\nbeen vested in the Secretary of State as a part of his responsibility to protect\n. . . what he considered to be the best interests of the Nation.\xe2\x80\x9d Passport\nReorganization at 13.\nExecutive action to control the issuance of passports in connection with\nforeign affairs has never been seriously questioned. For example, in 1861,\nthe Secretary of State issued orders prohibiting persons from departing or\nentering the United States without passports, denying passports to individu\xc2\xad\nals who were subject to the military service unless they were bonded, and\ndenying passports to individuals who were engaged in activities that threat\xc2\xad\nened the Union. See 3 John Bassett Moore, A Digest o f International Law\n920 (1906). In 1903, President Theodore Roosevelt promulgated a rule au\xc2\xad\nthorizing the Secretary of State to refuse to issue passports to persons who\nthe Secretary believed desired a passport \xe2\x80\x9cto further an unlawful or improper\n\n23\n\n\x0cpurpose.\xe2\x80\x9d Exec. Order No. 235, \xc2\xa7 16 (1903), quoted in Moore at 902.7 On a\nnumber o f occasions the President, acting through the Secretary of State, has\nexercised his foreign affairs power by refusing to issue a passport or by\nrevoking one already issued. For example, in 1948, the Secretary of State,\npursuant to his \xe2\x80\x9cdiscretionary authority . . . to conduct and be responsible\nfor foreign policy,\xe2\x80\x9d refused to issue a passport to a congressman who sought\nto go abroad to attend a Paris conference to aid Greek guerrilla forces.\nP assports Again an Issue, N.Y. Times, Apr. 11, 1948, at E9, discussed in\nH aig, 453 U.S. at 302.\nM ore recently, the Supreme Court upheld the authority of the Secretary\no f State to revoke a passport on grounds of national security pursuant to a\nregulation, 22 C.F.R. \xc2\xa7 51.70(b)(4) (1991), promulgated under section 1 of\nthe Passport Act of 1926, codified as amended at 22 U.S.C. \xc2\xa7 211a. See\nH aig, 453 U.S. at 289-310. Although Haig was decided on statutory grounds,\nid. at 289 n.17, the Supreme Court noted with approval the vesting of au\xc2\xad\nthority over passports in the Executive based on the Executive\xe2\x80\x99s constitutional\nauthority in the area of foreign affairs, id. at 294.8 By purporting to regulate\nthe issuance of official and diplomatic passports, section 129(e) and section\n503 infringe upon this constitutional authority.\nSecond, section 129(e) and section 503 would interfere with the President\xe2\x80\x99s\ncommunications to foreign governments in the conduct of the business of\nthe United States Government abroad. In interfering with the issuance of\nofficial and diplomatic passports, Congress infringes on the President\xe2\x80\x99s ple\xc2\xad\nnary authority \xe2\x80\x9cto speak o r listen as a representative of the nation.\xe2\x80\x9d\nC urtiss-W right, 299 U.S. at 319.\nIn general, passports are representations by the President to a foreign\ngovernment on behalf of the United States. See Haig, 453 U.S. at 292 (\xe2\x80\x9cA\npassport is . . . a letter of introduction in which the issuing sovereign vouches\nfor the bearer and requests other sovereigns to aid the bearer.\xe2\x80\x9d); id. (quoting\nUrtetiqui v. D\'Arcy, 34 U.S. (9 Pet.) 692, 698 (1835)) (\xe2\x80\x98\xe2\x80\x9c [A passport] is a\ndocument, which, from its nature and object, is addressed to foreign powers . . .\nand is to be considered rather in the character of a political docum ent. . . .\xe2\x80\x99\xe2\x80\x9d)\nMore particularly, official and diplomatic passports are documents addressed\nto foreign powers in which the President vouches for United States officials and\ndiplomats.9 They carry the Secretary of State\xe2\x80\x99s endorsement: \xe2\x80\x9cThe bearer is\nabroad on an official [or diplomatic] assignment for the Government of the\n\xe2\x80\x99 See also Exec. Order No. 654 (1907); Exec. Order No. 2119-A (1915); Exec. Order No. 2519-A (1917)\n\xe2\x80\xa2 H aig v. Agee provides two other examples of Executive authority over passports. In 1954, the Secre\xc2\xad\ntary revoked a passport held by an individual who was involved in supplying arms to foreign groups\nw hose interests were contrary to United States policy. Id. at 302. Similarly, in 1970, the Secretary\nrevoked passports held by two persons w ho sought to travel to the site of an international airplane\nhighjacking. Id.\n9State Department regulations describe the types o f passports issued by the United Stales Government:\n(a) Regular passport. A regular passport is issued to a national of the United States\nproceeding abroad for personal or business reasons.\n(b) Official passport. An official passport is issued to an official or employee of the\nContinued\n\n24\n\n\x0cUnited States of America.\xe2\x80\x9d According to the Passport Office of the State\nDepartment, such passports have at least two purposes:\n(1) to represent to the foreign government that the bearer is\nin fact an official or employee of the United States Govern\xc2\xad\nment proceeding abroad on [United States Government]\nbusiness; [and] (2) to facilitate the accomplishment of that\nbusiness (clothing diplomats with diplomatic immunity, by is\xc2\xad\nsuing a separate diplomatic passport falls within this category.)\nMemorandum for Harry L. Cobum, Deputy Assistant Secretary for Passport\nServices, from William B. Wharton, Director, Office of Citizenship Appeals\nand Legal Services at 4-5 (Sept. 21, 1984).\nBecause of the communicative nature of official and diplomatic pass\xc2\xad\nports, section 129(e) and section 503 may be read as an attempt to dictate to\nthe President the scope of permissible communications with foreign govern\xc2\xad\nments by means of passports. They would prevent him from issuing, in the\ncase of a United States official or diplomat who has visited Israel, \xe2\x80\x9ca letter\nof introduction,\xe2\x80\x9d Haig, 453 U.S. at 292, to Arab League nations that does\nnot also document the bearer\xe2\x80\x99s visit to Israel. Indeed, in certain cases, the\nsingle-passport requirement might positively compel the President to issue,\non behalf of government officials and diplomats, letters of introduction that\nwould offend the recipients and cause the bearers to be turned away or\nsubjected to retaliation and harassment. For example, the State Department\npredicts that \xe2\x80\x9cU.S. officials travelling to the Middle East could be expected\nto face obstacles to their entry to many Arab League countries if their pass\xc2\xad\nports reflect travel to Israel.\xe2\x80\x9d Selby Memorandum at 5 (footnote omitted).\nJust as Congress may not directly intrude upon the President\xe2\x80\x99s \xe2\x80\x9cpower to\nspeak . . . as a representative of the nation,\xe2\x80\x9d Curtiss-Wright, 299 U.S. at\n319, it cannot indirectly, by means of section 129(e) and section 503, effect\nthe same intrusion.\nThird, the single-passport requirement would impair the President\xe2\x80\x99s abil\xc2\xad\nity to conduct foreign affairs by denying his diplomats the documentation\nnecessary for entry into certain Arab League nations. It has long been\nrecognized that \xe2\x80\x9c[a]s \xe2\x80\x98sole organ\xe2\x80\x99 [of the federal government in the field of\ninternational relations], the President determines also how, when, where and\nby whom the United States should make or receive communications, and there\nis nothing to suggest that he is limited as to time, place, form, or forum.\xe2\x80\x9d Louis\n\n\xe2\x80\x99(....continued)\nUnited States Government proceeding abroad in the discharge o f official d u tie s.. . .\n(c)\nD iplomatic passport. A diplomatic passport is issued to a Foreign Service Officer,\n[to] a person in the diplomatic service or to a person having diplomatic status either because\no f the nature of his or her foreign mission or by reason of the office he or she h o ld s .. . .\n22 C.F.R. \xc2\xa7 51.3 (1991).\n\n25\n\n\x0cHenkin, Foreign Affairs and the Constitution 47 (1972). Section 129(e) and\nsection 503 impermissibly attempt to limit the President\xe2\x80\x99s authority to make\nsuch determinations.\nCongress itself has given heed to these principles since the founding of\nthe Republic. As the Supreme Court has noted, the Senate Committee on\nForeign Relations declared in 1816:\nThe President is the constitutional representative of the United\nStates with regard to foreign nations. He manages our con\xc2\xad\ncerns with foreign nations and m ust necessarily be most\ncompetent to determine when, how, and upon what subjects\nnegotiation may be urged with the greatest prospect of suc\xc2\xad\ncess. For his conduct he is responsible to the Constitution.\nThe Committee consider this responsibility the surest pledge\nfor the faithful discharge of his duty. They think the infer\xc2\xad\nence of the Senate in the direction of foreign negotiations\ncalculated to diminish that responsibility and thereby to im\xc2\xad\npair the best security for the national safety.\nC urtiss-W right, 299 U.S. at 319 (quoting 8 Reports of the Sen. Committee\non Foreign Relations 24 (1916)).\nIt is clear that the single-passport requirement would interfere with, and\nperhaps foreclose altogether, the President\xe2\x80\x99s ability to conduct diplomacy\ninvolving certain Arab League countries. The policy of these countries is to\ndeny entrance to those persons whose passports reflect previous travel to\nIsrael. See H.R. Conf. Rep. No. 238 at 107.\'\xc2\xb0 The State Department be\xc2\xad\nlieves that \xe2\x80\x9c [b]ased on prior experience and recent efforts to have the [Arab\nLeague policy] repealed, . . . at least in some instances the [policy] will be\nenforced against U.S. officials.\xe2\x80\x9d Selby Memorandum at 12. The State De\xc2\xad\npartm ent has avoided the application of this policy to United States official\nand diplomatic personnel by issuing dual official or diplomatic passports to\nUnited States government employees whose responsibilities require travel to\nboth Israel and Arab League nations. See id. at 4; The Anti-Boycott Passport\nA ct o f 1991: H earings Before the Subcomm. on International Operations o f\nthe House Comm, on Foreign Affairs, 102d Cong., 1st Sess. 48, 54, 67 (1991)\n\n(testimony o f Elizabeth M. Tamposi, Assistant Secretary of State, Bureau of\nC onsular Affairs). To date, \xe2\x80\x9c[t]his practice has been successful in keeping\nthe Arab travel boycott from interfering with the conduct of U.S. diplomacy\nin the region and from raising bilateral tensions.\xe2\x80\x9d Selby Memorandum at 4.\nIf official and diplomatic personnel were forced to carry only a single\n\n10 In addition, the State Department advises that certain non-Arab League countries with large Muslim\npopulations, such as Senegal, have occasionally refused to honor travel documents that reflect travel to\nIsrael. Selby M em orandum at 5 n.2.\n\n26\n\n\x0cpassport, they would face barriers to entering these Arab countries if they had\nvisited Israel anytime within the period of the passport\xe2\x80\x99s validity \xe2\x80\x94 a period\nas long as five years. See 22 C.F.R. \xc2\xa7 51.4(c), (d) (1991)." State Depart\xc2\xad\nment officials have predicted that \xe2\x80\x94 at the very least \xe2\x80\x94 the single-passport\nrequirement is likely to result in \xe2\x80\x9cincidents of reciprocation, retaliation and\nharassment of both officials and Congressmen, . . . either as a matter of\npolicy in certain countries or simply as a manifestation of anti-Israeli zeal\xc2\xad\nousness among airport officials.\xe2\x80\x9d U.S. Dep\xe2\x80\x99t of State, The O perational Impact\no f Anti-Boycott Passport Legislation 3 (June 17, 1991). In addition, \xe2\x80\x9c[q]uite\napart from the question of entry, difficulties might also arise when an indi\xc2\xad\nvidual bearing evidence of prior or future travel to Israel is stopped at one of\nthe many internal checkpoints in Lebanon and other Arab countries, and\nasked to produce a passport. At this juncture, evidence of travel to Israel\nmight spark other, more serious, problems than denial of any entry visa.\xe2\x80\x9d\nSelby Memorandum at 5. Such difficulties would clearly \xe2\x80\x9cinterfere with the\nability of United States officials to engage in diplomacy and could upset\ndelicate and complex negotiations\xe2\x80\x9d and \xe2\x80\x9cwould place our officials at personal\nrisk.\xe2\x80\x9d Id. As the President similarly declared in his signing statement on\nPub. L. No. 102-138:\nA purported blanket prohibition on the issuance of more than\none official or diplomatic passport to U.S. Government offi\xc2\xad\ncials could interfere with my ability to conduct diplomacy by\ndenying U.S. diplomats the documentation necessary for them\nto travel to all countries in the Middle East and could upset\ndelicate and complex negotiations.\nPresidential Signing Statement at 1344-45.12\nFinally, Congress declared in section 129 that it was \xe2\x80\x9cthe purpose of this\nsection . . . to prohibit United States Government acquiescence in\xe2\x80\x9d the Arab\n\n"T h e authority o f the President to grant exceptions for citizens to enter or depart the United States\nwithout a passport see 8 U.S.C. \xc2\xa7 1185(b), would not overcome these barriers imposed by the operation\no f section 129(e) and section 503. By its terms, section 1185(b) applies only to travel to and from the\nUnited States. It would have no effect on the ability of the President\xe2\x80\x99s representatives to gain entry into\na foreign country.\nI! As the State Department has noted, the single-passport requirement, had it been in effect, might have\nupset the recent negotiations leading up to the long-sought Middle East Peace Conference. M em oran\xc2\xad\ndum for Brent Scowcroft, from Robert W. Pearson, Executive Secretary, Department o f State, Re: P ro\xc2\xad\nposed Legislation Prohibiting M ultiple Official or Diplomatic Passports at 2 (Oct. 29, 1991). In addition\nto the Secretary o f State himself, other State Department personnel were involved in shuttle diplomacy\nbetween Israel and the Arab League nations o f Jordan, Syria, Egypt, and Saudi Arabia, among others.\nThe single-passport requirement would have disrupted the intensified travel necessary to facilitate the\npeace conference process. Id. Similarly, the complex process of obtaining the release o f the Am erican\nhostages in Lebanon might have been imperiled if United States diplomats were unable to make respon\xc2\xad\nsive consultations with Israeli and Arab League diplomats because of a single-passport requirement. In\ngeneral, \xe2\x80\x9cto carry out [the requirement] in all cases, the President would have t o . . . [postpone] substantive\nnegotiations of great importance to all parties concerned.\xe2\x80\x9d Selby Memorandum at 6.\n\n27\n\n\x0cLeague passport and visa policy. Section 129(a)(2), 105 Stat. at 661. To the\nextent that the single-passport requirement is an attempt, by indirect means,\nto dictate the substance of United States policy toward Arab League govern\xc2\xad\nm ents, it suffers from an additional constitutional defect. As the \xe2\x80\x98\xe2\x80\x9c sole\norgan o f the nation in its external relations,\xe2\x80\x99\xe2\x80\x9d Curtiss-Wright, 299 U.S. at 319\n(quoting 10 Annals of Cong. 613 (statement of Rep. John Marshall)), it is for\nthe President alone to articulate the content of the Nation\xe2\x80\x99s response to the\nArab League passport policy. By interfering with the President\xe2\x80\x99s foreign\npolicy determinations, section 129(e) and section 503 attempt to intrude into\na sphere in which the Constitution gives Congress no role. See Barr Memo\xc2\xad\nrandum, 14 Op. O.L.C. at 41.\nIn sum, the single-passport requirement interferes with the \xe2\x80\x9cplenary and\nexclusive\xe2\x80\x9d power of the President to conduct foreign affairs. The current\npolicy o f issuing more than one passport to officials of the United States\nGovernment traveling to the Middle East is a proper exercise of that power.\nInto this field, \xe2\x80\x9cthe Senate cannot intrude; and Congress itself is powerless\nto invade it.\xe2\x80\x9d Id. Thus, to the extent that section 129(e) and section 503\nwould interfere with the President\xe2\x80\x99s ability to conduct diplomacy with cer\xc2\xad\ntain nations and lim it the content and nature of his speech to foreign\ngovernments as the representative of the United States by limiting issuance\nof official and diplomatic passports, they do not comport with the Constitution.13\nThat section 503 was enacted as a condition on the appropriation of money\nfor the State Department does not save it from constitutional infirmity. As\nwe have said on several prior occasions, Congress may not use its power\nover appropriation o f public funds \xe2\x80\x9cto attach conditions to Executive Branch\nappropriations requiring the President to relinquish his constitutional discre\xc2\xad\ntion in foreign affairs. . . . [T]he President cannot be compelled to give up\nl3T his analysis has proceeded from the President\'s broad authority over the N ation\xe2\x80\x99s foreign affairs\nan d has relied on specific applications o f that authority. The analysis applies self-evidently to the\nissuance o f diplom atic passports, which are furnished to Foreign Service Officers, persons in the dip\xc2\xad\nlom atic service, and persons having diplom atic status due to their m issions or offices. See 22 C.F.R. \xc2\xa7\n5 1.3(c) (1991), quoted supra note 9. T he Departm ent o f State has also asked for our views on the\nconstitutionality o f the single passport requirem ent \xe2\x80\x9cas applied to non-Executive branch officials, such\nas m em bers o f C ongress and the federal judiciary, who often carry diplom atic passports, and C ongres\xc2\xad\nsional staff, w ho frequently travel on official passports.\xe2\x80\x9d Selby M emorandum at 14. We have received\nthe inform al advice o f the State Department that it believes the provisions are also unconstitutional as\napplied to these non-executive branch officials. Telephone Conversation between Jam ison M. Selby,\nD eputy Legal Adviser, D epartm ent of State, and Timothy E. Flanigan, Acting A ssistant Attorney G en\xc2\xad\ne ral, O ffice o f Legal Counsel (Jan. 17, 1992).\nW ithout the benefit o f the State Department\xe2\x80\x99s formal views on this question, we offer the following\nview s. To the extent that members of the legislative and judicial branches travel on diplomatic pass\xc2\xad\nports o u r analysis, o f course, applies to such passports. In general, we also believe that the President\xe2\x80\x99s\nauthority over foreign affairs applies equally to the issuance o f official passports. To receive an official\npassport, a person m ust be \xe2\x80\x9can official or em ployee of the United States Government proceeding abroad\nin the discharge o f official duties.\xe2\x80\x9d 22 C.F.R. \xc2\xa7 51.3(b) (1991), quoted supra note 9. Such persons are\nnecessarily representing the U nited States in its dealings with foreign nations. Indeed, they travel with\nthe Secretary o f S tate\'s endorsem ent that they are \xe2\x80\x9cabroad on an official assignment for the Government\no f the U nited States o f Am erica.\xe2\x80\x9d Accordingly, we believe that our analysis would apply with equal\nforce to all officials passports, whether issued to members o f the executive branch or to members o f a\ncoordinate branch.\n\n28\n\n\x0cthe [constitutional] authority of his Office as a condition of receiving the\nfunds necessary to carrying out the duties of his Office.\xe2\x80\x99\xe2\x80\x9d Barr Memoran\xc2\xad\ndum, 14 Op. O.L.C. at 42 n.3 (quoting Constitutionality o f Proposed Statutory\nProvision Requiring Prior Congressional Notification fo r Certain CIA C o\xc2\xad\nvert Actions, 13 Op. O.L.C. 258, 261-62 (1989)).\n\nThe Supreme Court has recently endorsed this conclusion. In some\nspheres, it has said, \xe2\x80\x9cthe constitutional limitations on Congress when exer\xc2\xad\ncising its spending power are less exacting than those on its authority to\nregulate directly.\xe2\x80\x9d South Dakota v. Dole, 483 U.S. 203, 209 (1987); cf. U.S.\nConst, art. I, \xc2\xa7 8, cl. 1. But in Metropolitan Wash. A irports Auth. v. Citizens\nfo r the Abatem ent o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991), the\nSupreme Court found Dole \xe2\x80\x9cinapplicable\xe2\x80\x9d to issues (such as those raised by\nsection 129(e) and section 503) that \xe2\x80\x9cinvolve separation-of-powers principles.\xe2\x80\x9d\nIn accordance with this decision, therefore, our analysis is not affected by\nthe fact that the single-passport requirement of section 503 is in the form of\na condition on appropriation.14\nFor all these reasons, we conclude that section 129(e) and section 503 are\nunconstitutional to the extent that they purport to limit the President\xe2\x80\x99s abil\xc2\xad\nity to issue more than one official or diplomatic passport to United States\ngovernment personnel.\n\nIII.\nWe now turn to the question whether section 129(e) and section 503 may\nbe severed from the authorization act and the appropriations act.\nThe Supreme Court has explained the basic approach to severability ques\xc2\xad\ntions on many occasions: \xe2\x80\x9cUnless it is evident that the legislature would not\nhave enacted those provisions which are within its power, independently of\nthat which is not, the invalid part may be dropped if what is left is fully\noperative as a law.\xe2\x80\x9d Champlin Ref. Co. v. Corporation Com m \xe2\x80\x99n, 286 U.S.\n210, 234 (1932), quoted in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684\n(1987). Thus, absent evidence that the statute without the unconstitutional\nprovisions will not function \xe2\x80\x9cin a manner consistent with the intent of Con\xc2\xad\ngress,\xe2\x80\x9d Alaska Airlines, 480 U.S. at 685, the unconstitutional provision will\nbe found to be severable.\nThe single-passport requirement of section 129(e) operates independently\nof the remainder of Pub. L. No. 102-138, which contains 144 substantive\nsections related to one another only by the fact that they involve some as\xc2\xad\npect of foreign relations. See, e.g., \xc2\xa7 121 (\xe2\x80\x9cChildcare Facilities at Certain\nPosts Abroad\xe2\x80\x9d); \xc2\xa7 225 (\xe2\x80\x9cEastern Europe Student Exchange Endowment\nFund\xe2\x80\x9d); \xc2\xa7 301 (\xe2\x80\x9cPersian Gulf War Criminals\xe2\x80\x9d); \xc2\xa7 359 (\xe2\x80\x9cHuman Rights Abuses\n\nHThe Stale D epartm ent agrees that \xe2\x80\x9cif Congress cannot directly prohibit the issuance of m ultiple\ndiplom atic passports, it cannot do so indirectly through its appropriations power." Selby M em oran\xc2\xad\ndum at 13 (em phasis and capitalization omitted).\n\n29\n\n\x0cin East Timor\xe2\x80\x9d); \xc2\xa7 402 (\xe2\x80\x9cMultilateral Arms Transfer and Control Regime\xe2\x80\x9d); \xc2\xa7\n507 (\xe2\x80\x9cSanctions Against Use o f Chemical or Biological Weapons\xe2\x80\x9d). There is no\ntextual evidence that Congress would not have enacted this wide-ranging bill if\nthe isolated provision regarding issuance of multiple passports had not been\nincluded.15 Nothing in the legislative history undermines this conclusion.16\nThe absence of section 129(e), moreover, would in no way impair the execution\no f the remainder of the statute in a manner fully consistent with the intent of\nCongress. There is, in short, no reason to conclude that Congress would have\ndeclined to enact Pub. L. No. 102-218 had it known that section 129(e) would\nnot pass constitutional muster. We therefore conclude that the single-passport\nrequirement is severable from the remainder of Pub. L. No. 102-138.\nThe appropriations bill, Pub. L. No. 102-140, contains an express sever\xc2\xad\nability clause. Section 604 provides:\nIf any provision of this Act or the application of such provi\xc2\xad\nsion to any person or circumstances shall be held invalid, the\nremainder of the Act and the application of each provision to\npersons or circumstances other than those as to which it is\nheld invalid shall not be affected thereby.\n105 Stat. at 823. The Supreme Court has held that the inclusion of a sever\xc2\xad\nability clause \xe2\x80\x9ccreates a presumption that Congress did not intend the validity\nof the statute in question to depend on the validity of the constitutionally\noffensive provision. In such a case, unless there is strong evidence that\nCongress intended otherwise, the objectionable provision can be excised from\nthe remainder of the statute.\xe2\x80\x9d Alaska Airlines, 480 U.S. at 686 (citations\nomitted). In the case of Pub. L. No. 102-140, there is no strong evidence \xe2\x80\x94\nindeed, there is no evidence at all \xe2\x80\x94 that Congress intended the validity of\nthe statute to depend on the validity of section 503. The single-passport\nl5T he absence o f a severability provision is not dispositive, for \xe2\x80\x9c[i]n the absence of a severability\nclause . . . . C ongress\' silence is just th at \xe2\x80\x94 silence \xe2\x80\x94 and does not raise a presumption against\nseverability.\xe2\x80\x9d A laska A irlines, 480 U.S. a t 686.\n\'\xe2\x80\x98 The Senate Foreign Relations Committee gave this provision no special attention that would indicate\nits centrality to the legislation as a whole. The portion o f the Comm ittee\xe2\x80\x99s 134-page report devoted to\nw hat later becam e section 129 consumed only a single page, and was merely a synopsis o f the provision\'s\ntext. See S. Rep. No. 98, 102d Cong., 1st Sess. 55 (1991). The House bill did not even contain a single\xc2\xad\npassport requirem ent. See H.R. Rep. N o. 53, 102d Cong., 1st Sess. 62 (1991).\nO n the Senate floor, the Chairman of the Foreign Relations Committee (Senator Pell) did not mention\nthe single-passport requirem ent as he sum marized the bill, see 137 Cong. Rec. S 11,121 (daily ed. July\n29, 1991) and only one speaker discussed the passport provision. See id. at SI 1,189-90 (statem ent of\nSen. Lautenberg).\nThe conference com m ittee adopted alm ost verbatim the language o f the Senate bill. See H R. Conf.\nRep. No. 238 at 107. The conferees devoted no m ore attention to section 129 than to many other\nprovisions. N or did the conferees give any indication that this provision of the bill was so central to its\nadoption that the bill would fail without it.\nW hen the bill cam e back from conference, the passport provision merited only a single sentence of\ndiscussion on the Senate floor. See 137 Cong. Rec. S14,438 (daily ed. Oct. 4, 1991) (statement o f Sen.\nKerry). In the House, the Democratic floor manager spoke about the provision at greater length, but\ngave no indication that it was in any sense the keystone o f the entire bill. See 137 Cong. Rec. H7638\n(daily ed. Oct. 8, 1991) (statement of Rep. Berman).\n\n30\n\n\x0crequirement did not even appear in the House bill, but was added by the\nSenate. See S. Rep. No. 106, 102d Cong., 1st Sess. 114 (1991). The Con\xc2\xad\nference Report did not discuss the provision at all. See H.R. Conf. Rep. No.\n233, 102d Cong., 1st Sess. 87 (1991) (noting only that the Senate\xe2\x80\x99s amend\xc2\xad\nment adding the single-passport requirement was \xe2\x80\x9c[r]eported in disagreement\xe2\x80\x9d).\nFinally, the respective committee reports gave no indication that the sever\xc2\xad\nability clause was to be given anything but its natural construction. See S.\nRep. No. 106, at 123; H.R. Rep. No. 106, 102d Cong., 1st Sess. 97 (1991).17\nThus, we conclude that the single-passport requirements of Pub. L. No. 102138 and Pub. L. No. 102-140 are severable from the remainder of those bills.\n\nIV.\nThe final issue we address is whether the President may refuse to enforce\nthe single-passport requirements.18 The Department of Justice has consis\xc2\xad\ntently advised that the Constitution provides the President with the authority\nto refuse to enforce unconstitutional provisions.19 Both the President\xe2\x80\x99s obli\xc2\xad\ngation to \xe2\x80\x9ctake Care that the Laws be faithfully executed,\xe2\x80\x9d U.S. Const, art.\nII, \xc2\xa7 3, and the President\xe2\x80\x99s oath to \xe2\x80\x9cpreserve, protect and defend the Consti\xc2\xad\ntution of the United States,\xe2\x80\x9d id. \xc2\xa7 1, vest the President with the responsibility\nto decline to enforce laws that conflict with the highest law, the Constitu\xc2\xad\ntion. We recognize, however, that the judicial authority addressing this issue\nis sparse and that our position may be controversial.\nAmong the laws that the President must \xe2\x80\x9ctake Care\xe2\x80\x9d to faithfully execute\nis the Constitution. This proposition seems obvious, since the Constitution\nis \xe2\x80\x9cthe supreme Law of the Land.\xe2\x80\x9d U.S. Const, art. VI, \xc2\xa7 2 (emphasis\nadded). As the Justice Department has stated previously,\nthe Executive\xe2\x80\x99s duty faithfully to execute the law embraces a\nduty to enforce the fundamental law set forth in the Constitu\xc2\xad\ntion as well as a duty to enforce the law founded in the Acts\n17Although the severability clause of Pub. L. No. 102-140 is couched in terms of provisions of the act\nbeing \xe2\x80\x9cheld to be invalid,\xe2\x80\x9d and thus arguably might be read to contemplate a court decision on validity\no f portions of the act, it remains an accurate indicator of whether Congress would have enacted the bill,\nand desired its other provisions to stand, if any particular section were not enforced.\n"T h e analysis of this question does not turn on the fact that the President has signed the two bills. As\nthe Supreme Court has observed, \xe2\x80\x9c it is not uncommon for Presidents to approve legislation containing\nparts which are objectionable on constitutional grounds." INS v. Chadha, 462 U.S. 919, 942 n.13\n(1983). That the President has signed a bill in no way estops him from later asserting the bill\'s uncon\xc2\xad\nstitutionality, in court or otherwise. See Letter for Peter W. Rodino, Jr., Chairman, House Com m ittee on\nthe Judiciary, from William French Smith, Attorney General at 3 (Feb. 22, 1985) (\xe2\x80\x9cAttorney General\nSmith Letter\xe2\x80\x9d) (\xe2\x80\x9c [T]he President\xe2\x80\x99s failure to veto a measure does not prevent him subsequently from\nchallenging the Act in court, nor does presidential approval of an enactment cure constitutional defects.\xe2\x80\x9d);\nMemorandum for Robert J. Lipshutz, Counsel to the President, from John M Harmon, Assistant A ttor\xc2\xad\nney General, Office of Legal Counsel at 1 (Sept 27, 1977) (\xe2\x80\x9cHarmon M emorandum\xe2\x80\x9d) (\xe2\x80\x9c [P]rior to a\ndefinitive judicial determination of the question of constitutionality a President may decline to enforce a\nportion o f a statute if he believes it to be unconstitutional, even if he or one of his predecessors signed the\nstatute into law.").\n15Our most recent consideration of this issue is set forth in the Barr Memorandum. The follow ing\ndiscussion is drawn in large part from that memorandum.\n\n31\n\n\x0cof Congress, and cases arise in which the duty to the one\nprecludes the duty to the other.\nC onstitutionality o f Congress\xe2\x80\x99 Disapproval o f Agency Regulations by Resolu\xc2\xad\ntions N ot P resented to the President, 4A Op. O.L.C. 21, 29 (1980) (Opinion\no f Attorney General Benjamin R. Civiletti). See also, e.g., Bid Protest H ear\xc2\xad\nings at 23 (statement of Professor Mark Tushnet) (\xe2\x80\x9c[T]he President is required\n\nfaithfully to execute the laws o f the United States, which surely include the\nConstitution as supreme law.\xe2\x80\x9d). Where an act of Congress conflicts with the\nConstitution, the President is faced with the duty to execute conflicting \xe2\x80\x9claws\xe2\x80\x9d\n\xe2\x80\x94 a constitutional provision and a contrary statutory requirement. The reso\xc2\xad\nlution o f this conflict is clear: the President must heed and execute the\nConstitution, the supreme law of our Nation.\nThus, the Take Care Clause does not compel the President to execute\nunconstitutional statutes. An unconstitutional statute, as C hief Justice\nM arshall explained in his archetypal decision, is simply not a law at all:\n\xe2\x80\x9cCertainly all those who have framed written constitutions contemplate them\nas forming the fundamental and paramount law of the nation, and conse\xc2\xad\nquently the theory of every such government must be, that an act o f the\nlegislature, repugnant to the constitution, is void.\xe2\x80\x9d Marbury v. Madison, 5\nU.S. (1 Cranch) 137, 177 (1803) (emphasis added). As Alexander Hamilton\nhad previously explained, \xe2\x80\x9c[t]here is no position which depends on clearer\nprinciples than that every act o f a delegated authority, contrary to the tenor\nof the commission under which it is exercised, is void. No legislative act,\ntherefore, contrary to the Constitution, can be valid.\xe2\x80\x9d The Federalist No. 78,\nat 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).20 Obviously, if a\nstatute is \xe2\x80\x9cvoid\xe2\x80\x9d or \xe2\x80\x9cno law,\xe2\x80\x9d it cannot be one of the \xe2\x80\x9cLaws\xe2\x80\x9d that the Presi\xc2\xad\ndent must faithfully execute.\nWe are aware that the Constitution provides that a bill enacted pursuant\nto the procedure described in article I, section 7 \xe2\x80\x9cshall become a Law.\xe2\x80\x9d\nOnly laws \xe2\x80\x9cmade in Pursuance\xe2\x80\x9d of the Constitution, however, \xe2\x80\x9cshall be the\nsupreme Law o f the Land.\xe2\x80\x9d U.S. Const, art. VI, \xc2\xa7 2; see also Marbury, 5\nU.S. (1 Cranch) at 180. In order to be a valid \xe2\x80\x9cLaw,\xe2\x80\x9d therefore, a statute\nmust comport with the substance of the Constitution, as well as with its\nprocedures. When confronted with a suggestion to the contrary, the Su\xc2\xad\npreme Court dismissed it in a footnote: \xe2\x80\x9cThe suggestion is made that [a\n\xe2\x80\x9c This proposition is hardly a novel one. See e.g., Frank H. Easterbrook, Presidential Review, 40 Case\nW. Res. L. Rev. 905, 920 (1990) (\xe2\x80\x9cThe Supreme Court has said more times than one can count that\nunconstitutional statutes are \xe2\x80\x98no law at a ll.\xe2\x80\x9d \') (citing Norton v. Shelby County, 118 U.S. 425, 442 (1886)\n(\xe2\x80\x9c An unconstitutional act is not a law; . . . it is, in legal contem plation, as inoperative as though it had\nnever been passed.\xe2\x80\x9d )); Letter for Gerrit Smith, from Salmon P. Chase, C hief Justice of the United States\n(Apr. 19, 1868) quoted in J.W. Schuckers, The Life and Public Services o f Salmon Portland Chase 577\n(1874) (\xe2\x80\x9cC hief Justice Chase Letter\xe2\x80\x9d) (\xe2\x80\x9c Nothing is clearer to my mind than that acts of Congress not\nw arranted by the Constitution are not law s.\xe2\x80\x9d); Appointment o f Assistant Assessors o f Internal Revenue,\n11 Op. A tt\xe2\x80\x99y Gen. 209, 214 (1865) (\xe2\x80\x9cIf any law be repugnant to the Constitution, it is void: in other\nw ords, it is no law \xe2\x80\x9d ).\n\n32\n\n\x0clegislative veto provision] is somehow immunized from constitutional scru\xc2\xad\ntiny because the Act containing [the provision] was passed by Congress and\napproved by the President. Marbury v. Madison resolved that question.\xe2\x80\x9d\nChadha, 462 U.S. at 942 n.13 (citation omitted).\nThe President\xe2\x80\x99s constitutional oath of office is further authority for the\nPresident to refuse to enforce an unconstitutional law. The Constitution\nrequires the President to take an oath in which he promises to \xe2\x80\x9cpreserve,\nprotect and defend the Constitution of the United States.\xe2\x80\x9d U.S. Const, art.\nII, \xc2\xa7 1. As Chief Justice Chase asked, \xe2\x80\x9cHow can the President fulfill his\noath to preserve, protect, and defend the Constitution, if he has no right to\ndefend it against an act of Congress sincerely believed by him to have been\npassed in violation of it?\xe2\x80\x9d Chief Justice Chase Letter at 578. He had\nalready answered the question: \xe2\x80\x9c[I]n the case where [an act of Congress]\ndirectly attacks and impairs the Executive power confided to him by the\nConstitution . . . it seems to me to be the clear duty of the President to\ndisregard the law . . . \xe2\x80\x9d Id. at 577. Just as the Take Care Clause requires\nthe President to faithfully execute the laws, including the Constitution as the\nsupreme law, the oath to defend the Constitution allows the President to\nrefuse to execute a law he believes is contrary to that document.\nAlthough the Supreme Court has not squarely addressed the issue, four\nJustices have recently endorsed the proposition that a President may decline\nto enforce unconstitutional laws. In Freytag v. Commissioner, 501 U.S. 868\n(1991), Justice Scalia, in an opinion joined by Justices O \xe2\x80\x99Connor, Kennedy,\nand Souter, observed that \xe2\x80\x9cthe means [available to a President] to resist\nlegislative encroachment\xe2\x80\x9d upon his power included \xe2\x80\x9cthe power to veto en\xc2\xad\ncroaching laws, or even to disregard them when they are unconstitutional.\xe2\x80\x9d\nId. at 906 (Scalia, J., concurring in part and concurring in the judgment)\n(citation omitted and emphasis added). The Court\xe2\x80\x99s opinion did not take\nissue with this observation.21\nJustice Scalia\xe2\x80\x99s opinion is the latest in a long line of authority dating\nback to the framing of the Constitution. For instance, James Wilson, a key\ndrafter and advocate for the ratification of the Constitution, addressed the\nPresident\xe2\x80\x99s authority to refuse to enforce unconstitutional laws in the Penn\xc2\xad\nsylvania ratifying convention. He equated Presidential review o f statutes\nwith judicial review:\nI had occasion, on a former day . . . to state that the power of\nthe Constitution was paramount to the power of the legisla\xc2\xad\nture, acting under that Constitution. For it is possible that the\n21 The Supreme Court has considered several controversies that arose because of a President\'s decision\nto ignore statutes that he believed were unconstitutional without suggesting that the President had acted\nillegitimately. For example, as Attorney General Benjamin R. Civiletti has observed, the Court in\nM yers v. United States, 272 U.S. 52 (1926), upheld the President\xe2\x80\x99s decision to fire a postmaster despite\na statute preventing him from doing so and did not question the propriety o f the President\xe2\x80\x99s action that\ngave rise to the case before it. See The Attorney General\'s Duty to Defend and Enforce Constitutionally\nObjectionable Legislation, 4A Op. O.L.C. 55, 59 (1980)\n\n33\n\n\x0clegislature . . . may transgress the bounds assigned to it, and\nan act may pass, in the usual mode, notwithstanding that trans\xc2\xad\ngression; but when it comes to be discussed before the judges\n\xe2\x80\x94 when they consider its principles and find it to be incom\xc2\xad\npatible with the superior power of the Constitution, it is their\nduty to pronounce it void. . . . In the same manner, the P resi\xc2\xad\ndent o f the United S tates could shield him self and refuse to\ncarry into effect an a c t that violates the Constitution.\n\nII The Documentary History o f the Ratification o f the Constitution 450-51 (Merrill\nJensen ed., 1976) (statement o f Dec. 1, 1787) (second emphasis added).\nW ilson\xe2\x80\x99s understanding illustrates the Framers\xe2\x80\x99 profound structural con\xc2\xad\ncern about the threat of legislative encroachments on the Executive and the\nJudiciary. James Madison observed that \xe2\x80\x9c[t]he legislative department is\neverywhere extending the sphere of its activity and drawing all power into\nits impetuous vortex.\xe2\x80\x9d The Federalist No. 48, at 309 (James Madison) (Clinton\nR ossiter ed\xe2\x80\x9e 1961). The Supreme Court has said that: \xe2\x80\x9cthe hydraulic pres\xc2\xad\nsure inherent within each of the separate Branches to exceed the outer limits\no f its power, even to accomplish desirable objectives, must be resisted.\xe2\x80\x9d\nChadha, 462 U.S. at 951. Presidential decisions not to enforce statutes that\nviolate the separation of powers have been justified by the need to resist\nlegislative encroachment. In 1860, for example, Attorney General Black\nadvised President Buchanan that he could refuse to enforce an unconstitu\xc2\xad\ntional condition in a law:\nCongress is vested with legislative power; the authority of the\nPresident is executive. Neither has a right to interfere with\nthe functions of the other. Every law is to be carried out so\nfar forth as is consistent with the Constitution. . . . You are\ntherefore entirely justified in treating this condition (if it be a\ncondition) as if the paper on which it is written were blank.\nM em orial o f Captain Meigs, 9 Op. Att\xe2\x80\x99y Gen. 462, 469-70 (I860).22\n\nM ore recently, the Department of Justice, under both Democratic and\nRepublican Administrations, has consistently advised that the Constitution\nauthorizes the President to refuse to enforce a law that he believes is uncon\xc2\xad\nstitutional. Thus, Attorney General Smith explained that the Department\xe2\x80\x99s\ndecision not to enforce or defend the Competition in Contracting Act was\n22 Cf. Raoul Berger, Executive Privilege: A Constitutional Myth 309 (1974) (\xe2\x80\x9cAgreed that a veto ex\xc2\xad\nhausts presidential power when the issue is the wisdom o f the legislation. But the object o f the Framers\nwas to prevent \xe2\x80\x98encroachm ent\xe2\x80\x99 . . . . I would therefore hold that the presidential oath to \'protect and\ndefend the C onstitution\xe2\x80\x99 posits both a right and a duty to protect his own constitutional functions from\ncongressional im pairm ent.\xe2\x80\x9d ).\n\n34\n\n\x0cbased upon the fact that in addition to the duty of the Presi\xc2\xad\ndent to uphold the C onstitution in the context o f the\nenforcement of Acts of Congress, the President also has a con\xc2\xad\nstitutional duty to protect the Presidency from encroachment\nby the other branches. . . . An obligation to take action to\nresist encroachments on his institutional authority by the legis\xc2\xad\nlature may be implied from [his oath to \xe2\x80\x9cpreserve, protect and\ndefend\xe2\x80\x9d the Constitution] . . . .\nAttorney General Smith Letter at 3; see also Letter for Thomas P. O \xe2\x80\x99Neill,\nJr., Speaker of the House, from Benjamin R. Civiletti, Attorney General at 3\n(Jan. 13, 1981) (\xe2\x80\x9c[T]he Executive\xe2\x80\x99s independent [constitutional] obligation\nto \xe2\x80\x98take care that the laws be faithfully executed\xe2\x80\x99, permits the Attorney\nGeneral not to initiate criminal prosecutions that will undoubtedly prove\nunsuccessful on constitutional grounds.\xe2\x80\x9d) (citation omitted); Harmon M emo\xc2\xad\nrandum at 16 (\xe2\x80\x9c[T]he President\xe2\x80\x99s duty to uphold the Constitution carries\nwith it a prerogative to disregard unconstitutional statutes.\xe2\x80\x9d).\nThis Office has given the same advice, particularly when the statutes in\nquestion would blur the separation of powers between the Congress and the\nPresident, as do section 129(e) and section 503. See, e.g., Harmon Memo\xc2\xad\nrandum at 13 (\xe2\x80\x9cWe have said that Myers [v. United States, 272 U.S. 52\n(1926)], by implication, stands for the proposition that the President may\nlawfully disregard a statute that trenches upon his constitutional powers. We\nwould be disposed to accept that proposition even in the absence of M yers.\xe2\x80\x9d)\',\nMemorandum for the Attorney General from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel at 17 (Aug. 27, 1984) (\xe2\x80\x9c[T]he\nPresident need not blindly execute or defend laws enacted by Congress if\nsuch laws trench on his constitutional power and responsibility.\xe2\x80\x9d). See also\nBarr Memorandum, 14 Op. O.L.C. at 49-50. The Department has consis\xc2\xad\ntently maintained that these principles apply whether or not the President\nsigned the law that he intends not to enforce. See supra note 18.\nWe recognize that opponents of the specific Presidential authority to refuse\nto enforce unconstitutional statutes draw support for their views from the\nsame constitutional texts we have cited, especially the Take Care Clause.\nSee, e.g., Arthur S. Miller, The President and Faithful Execution o f the Laws,\n40 Vand. L. Rev. 389, 396 (1987) (\xe2\x80\x9cTo say that the President\xe2\x80\x99s duty to\nfaithfully execute the laws implies a power to forbid their execution is to\nflout the plain language of the Constitution.\xe2\x80\x9d); Bid Protest Hearings at 89\n(letter of Professor Eugene Gressman) (\xe2\x80\x9c [I]t would be a novel and \xe2\x80\x98entirely\ninadmissible\xe2\x80\x99 construction of the Constitution to contend that the President\xe2\x80\x99s\nobligation to see the laws faithfully executed implies a power to forbid their\nexecution.\xe2\x80\x9d). These conclusions appear to rest on the argument that the ex\xc2\xad\necutive branch is not the institution within the federal government that is\nauthorized to determine whether a law is unconstitutional. Accordingly,\nProfessor Gressman has stated that \xe2\x80\x9cdespite a Presidential belief that a duly\n35\n\n\x0cenacted statute invades Executive powers, he must comply with and execute\nthat statute until it is definitively invalidated by the courts.\'\' Id. at 88 (em\xc2\xad\nphasis added). As the Justice Department has acknowledged, \xe2\x80\x9cuntil a law is\nadjudicated to be unconstitutional, the issue o f enforcing a statute of ques\xc2\xad\ntionable constitutionality raises sensitive problems under the separation of\npowers.\xe2\x80\x9d Id. at 318-19 (statement of Acting Deputy Attorney General D.\nLowell Jensen).\nWe reject, however, the argument that the President may not treat a stat\xc2\xad\nute as invalid prior to a judicial determination, but rather must presume it to\nbe constitutional. This would subtly transform the proposition established\nin M arbury v. M adison - in deciding a case or controversy, the Judiciary\nmust decide whether a statute is constitutional \xe2\x80\x94 to the fundamentally dif\xc2\xad\nferent proposition that a statute conflicts with the Constitution only when\nthe courts declare so. Professor Sanford Levinson explained why this can\xc2\xad\nnot be so:\nIf one believes that the judiciary \xe2\x80\x9cfinds\xe2\x80\x9d the [law] instead of\n\xe2\x80\x9ccreating\xe2\x80\x9d it, then the law is indeed \xe2\x80\x9cunconstitutional from\nthe start.\xe2\x80\x9d Indeed, the judicial authority under this view is\nderived from its ability to recognize the constitutionality or\nunconstitutionality of laws, but, at least theoretically, the con\xc2\xad\nstitutional status [of statutes] is independent of judicial\nrecognition. To argue otherwise is ultimately to adopt a theory\nthat says that the basis of law \xe2\x80\x94 including a declaration of\nunconstitutionality \xe2\x80\x94 is the court\xe2\x80\x99s decision itself. Among\nother problems with this theory is the incoherence it leads to\nin trying to determine what it can mean for judges to be faith\xc2\xad\nful to their constitutional oaths.\nB id P rotest H earings at 67.\n\nStill others have argued that the veto power is the only tool available to\nthe President to oppose an unconstitutional law. Although we recognize that\nthe veto power is the primary tool available to the President; we disagree\nwith the contention that the Framers intended it to be the only tool at the\nPresident\xe2\x80\x99s disposal. Janies Wilson\xe2\x80\x99s statement, quoted above, demonstrates\nthat the idea that the President has the authority to refuse to enforce a law he\nbelieves is unconstitutional was familiar to the Framers. The Constitution\nlimits the President\xe2\x80\x99s formal power in the legislative process to the exercise\no f a qualified veto, but it places no limit on his authority to take care that\nthe laws are faithfully executed.23\n23 We em phasize that this conclusion does not permit the President to determine as a matter of policy\ndiscretion which statutes to enforce. T he only conclusion here is that he may refuse to enforce a law that\nContinued\n\n36\n\n\x0cConclusion\nFor the reasons given above, we conclude that section 129(e) of Pub. L.\nNo. 102-138 and section 503 of Pub. L. No. 102-140 are unconstitutional to\nthe extent that they purport to prohibit the issuance of more than one official\nor diplomatic passport to United States government officials. We also con\xc2\xad\nclude that these provisions are severable, and that the P resident is\nconstitutionally authorized to decline to enforce them.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c (....continued)\nhe believes to be unconstitutional.\nGiven this distinction, the Supreme Court\'s decision in Kendall v. United States ex rel. Stokes, 37\nU.S. (12 Pet.) 524 (1838), has no relevance to the question whether the President may refuse to enforce\na law because he considers it unconstitutional. There, the Supreme Court states: \xe2\x80\x9cTo contend that the\nobligation imposed on the President to see the laws faithfully executed, im plies a power to forbid their\nexecution, is a novel construction o f the constitution, and entirely inadm issible.\xe2\x80\x9d Id. at 613. The Court,\nhowever, took pains to deny that the President had made such an argument, as the case involved the\nPostm aster G eneral\'s refusal, with no support from the President, to comply with a statute that ordered\nhim to pay two contractors for mail carrying services. Because the case did not involve a claim by the\nPresident that he would not enforce an unconstitutional law, the Court had no occasion to examine the\nunique considerations presented by such a claim.\n\n37\n\n\x0c'