b'Issues Raised by Foreign Relations Authorization Bill\nP ro v isio n in foreign relations authorization bill conditioning an authorization fo r ap p ro p ria\xc2\xad\ntions on th e requirem ent that an entity controlled by the legislative branch be included at\nC onference on Security and C ooperation in E urope negotiations would u n constitutionally\ninfringe on the P resident\xe2\x80\x99s exclusive authority to conduct negotiations on beh alf o f the\nU nited S tates abroad and unconstitutionally deprive the President o f his co n stitutionallym andated control over the disclosure o f the content o f negotiations.\nT h e unconstitutional condition may be severed from the rem ainder o f the provision authorizing\nappropriations and the rest o f the bill.\nA t least in the context o f legislation that infringes on the separation o f pow ers, the P resident has\nthe constitutional authority to refuse to enforce a statutory provision that he believes is\nu nconstitutional. B ecause this unconstitutional requirem ent is severable, the P resident m ay\nenforce the rem ainder o f th e provision, while refusing to enforce the unconstitutional portion.\n\nFebruary 16, 1990\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nC\n\no u n sel to the\n\nP r e s id e n t\n\nThis memorandum is in response to your request for this Office\xe2\x80\x99s opinion\non several issues raised by section 102(c) of H.R. 3792*, the foreign rela\xc2\xad\ntions authorization bill for fiscal years 1990 and 1991. Specifically, you\nasked whether section 102(c)(2) is unconstitutional; whether it is severable\nfrom the rest of H.R. 3792; and whether the President may decline to en\xc2\xad\nforce it. As set forth in greater detail below, we believe that section 102(c)(2)\nis plainly unconstitutional. We further believe that it is severable from sec\xc2\xad\ntion 102(c)(1) and the rest of H.R. 3792. Under the circumstances, we\nbelieve that if the President chooses to sign H.R. 3792, he would be consti\xc2\xad\ntutionally authorized to decline to enforce section 102(c)(2).\n\nAnalysis\n1.\n\nSection 102(c)(2) Unconstitutionally Infringes on the P resid en t\xe2\x80\x99s\nE xclusive A u thority to C onduct N egotiations on B e h a lf o f the\nUnited States\n\n37\n\n\x0cSection 102(c) provides:\n(c) INTERNATIONAL CONFERENCES AND CONTIN\xc2\xad\nGENCIES. \xe2\x80\x94 (1) There are authorized to be appropriated for\n\xe2\x80\x9cInternational Conferences and Contingencies\xe2\x80\x9d, $6,340,000 for\nthe fiscal year 1990 and $7,300,000 for the fiscal year 1991\nfor the Department of State to carry out the authorities, func\xc2\xad\ntions, duties, and responsibilities in the conduct of the foreign\naffairs of the United States with respect to international con\xc2\xad\nferences and contingencies and for other purposes authorized\nby law.\n(2)\nNone of the funds authorized to be appropriated under\nparagraph (1), may be obligated or expended for any United\nStates delegation to any meeting of the Conference on Secu\xc2\xad\nrity and Cooperation in Europe (CSCE) or meetings within\nthe framework of the CSCE unless the United States delega\xc2\xad\ntion to any such meeting includes individuals representing the\nCommission on Security and Cooperation in Europe.\nThe Commission on Security and Cooperation in Europe (the \xe2\x80\x9cCommis\xc2\xad\nsion\xe2\x80\x9d) is an entity controlled by the legislative branch. The Commission\nconsists of twenty-one members, eighteen of whom are drawn from the houses\no f Congress, three of whom are appointed by the President. 22 U.S.C. \xc2\xa7\n3003(a). The Commission is deemed to be a standing committee of Con\xc2\xad\ngress for the purpose of receiving disbursements of foreign currencies, see\nid. \xc2\xa7 3007(b), and Commission employees are considered congressional em\xc2\xad\nployees, id. \xc2\xa7 3008(d).\nIt is abundantly clear that section 102(c)(2), by purporting to require the\nPresident to include \xe2\x80\x9cindividuals representing the Commission\xe2\x80\x9d as part of a\ndelegation charged with conducting international negotiations, is unconstitutional.\nThe President possesses broad authority over the Nation\xe2\x80\x99s diplomatic af\xc2\xad\nfairs. That authority flows from his position as head o f the unitary Executive\nand as Commander in Chief. E.g., U.S. Const, art. II, \xc2\xa7\xc2\xa7 1, 2 & 3; Haig v.\nAgee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369 U.S. 186, 212, 213\n(1962); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20\n(1936). Article II, Section 2 o f the Constitution also gives the President the\nspecific authority to \xe2\x80\x9cappoint Ambassadors, other public Ministers and Con\xc2\xad\nsuls.\xe2\x80\x9d These constitutional provisions authorize the President to determine\nthe form and manner in which the United States will maintain relations with\nforeign nations, and further to determine the individuals who will conduct\nthose relations. Section 102(c)(2) of the bill is thus clearly unconstitutional,\non two specific and distinct grounds.\n\n38\n\n\x0cFirst, the courts, the Executive and Congress have all concurred that the\nPresident\xe2\x80\x99s constitutional authority specifically includes the exclusive author\xc2\xad\nity to represent the United States abroad. A\'s the Supreme Court held in\nCurtiss-Wright, speaking of the \xe2\x80\x9cfederal power over external affairs\xe2\x80\x9d:\nIn this vast external realm, with its important, complicated,\ndelicate and manifold problems, the President alone has the\npower to speak or listen as a representative of the nation. He\nmakes treaties with the advice and consent of the Senate; but\nhe alone negotiates. Into the field of negotiation the Senate\ncannot intrude; and Congress itself is powerless to invade it.\n299 U.S. at 319 (emphasis omitted). The Court\xe2\x80\x99s opinion is directly appli\xc2\xad\ncable here: \xe2\x80\x9cthe President alone has the power to speak or listen as a\nrepresentative of the nation. . . . [H]e alone negotiates.\xe2\x80\x9d Id. (emphases\nadded). The Court went on to describe the President\xe2\x80\x99s authority in the realm\nof foreign affairs as\nthe very delicate, plenary and exclusive power of the Presi\xc2\xad\ndent as the sole organ of the federal government in the field\nof international relations\xe2\x80\x94a power which does not require as a\nbasis for it\xe2\x80\x99s exercise an act of Congress . . . .\nId. at 320.\nSuch authority \xe2\x80\x9cin the field of international relations\xe2\x80\x9d must self-evidently\ninclude the President\xe2\x80\x99s power to select his subordinates, who will speak as\nthe President\xe2\x80\x99s assistants or agents in the realm of foreign affairs. James\nMadison observed in the First Congress that: \xe2\x80\x9cNo person can be forced\nupon [the President] as an assistant by any other branch of the Government.\xe2\x80\x9d\nThe First Congress 190 (Robert P. Williams ed. 1970).\nJustice Nelson relied upon the President\xe2\x80\x99s primacy in foreign affairs in\ndismissing a civil action for damages brought against the commander of an\nAmerican gun ship that had bombarded a town in Nicaragua where a revolu\xc2\xad\ntionary government had engaged in violence against American citizens and\ntheir property:\nAs the executive head of the nation, the president is made\nthe only legitimate organ of the general government, to open\nand carry on correspondence or negotiations with foreign na\xc2\xad\ntions, in matters concerning the interests of the country or of\nits citizens.\n\n39\n\n\x0cD urand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. .1860) (No. 4186). In\nGoldwater v. Carter, 617 F.2d 697 (D.C. Cir.), rev\xe2\x80\x99d on other grounds, 444\nU.S. 996 (1979), the Court o f Appeals for the District of Columbia Circuit\nstated that: \xe2\x80\x9cThe subtleties involved in maintaining amorphous relationships\nare often the very stuff of diplomacy \xe2\x80\x94 a field in which the President, not\nCongress, has responsibility under our Constitution.\xe2\x80\x9d Id. at 708. Section\n102(c)(2) plainly conflicts with that fundamental constitutional command.\nFrom the earliest days o f the Republic the executive branch has made\nclear that it controls the representation of the foreign policy of the United States.\nIn 1790, Secretary of State Thomas Jefferson made the point emphatically:\nThe transaction of business with foreign nations is Executive\naltogether. It belongs then to the head of that department,\nexcept as to such portions of it as are specially submitted to\nthe Senate. Exceptions are to be construed strictly.\nOpinion on the Powers of the Senate Respecting Diplomatic Appointments,\nApril 24, 1790, reprinted in 16 Papers o f Thomas Jefferson 378, 379 (Julian\nP. Boyd ed\xe2\x80\x9e 1961).\nJefferson made this point with even greater specificity in rebuking Citi\xc2\xad\nzen Genet for attempting to present a consul whose commission was addressed\nto the Congress of the United States. Jefferson emphatically declared that\nthe President is\nthe only channel of communication between this country and\nforeign nations, it is from him alone that foreign nations or their\nagents are to learn what is or has been the will of the nation,\nand whatever he communicates as such, they have a right and\nare bound to consider as the expression of the nation.\nJefferson to Edmond C. Genet, November 22, 1793, reprinted in 9 The Writ\xc2\xad\nings o f Thomas Jefferson 256 (Albert E. Bergh ed. 1903).\nIn modem times Presidents have also asserted their authority to control\nnegotiations. President Bush based his 1989 veto of the FS-X legislation in\npart upon his constitutional authority to control foreign negotiations:\nIn the conduct of negotiations with foreign governments, it is\nimperative that the United States speak with one voice. The\nConstitution provides that that one voice is the President\xe2\x80\x99s.\nII Pub. Papers George Bush 1042, 1043 (July 31, 1989). Other recent Presi\xc2\xad\ndents have taken the same view. E.g., President Reagan\xe2\x80\x99s Statement on\nSigning H.R. 1777 into law, II Pub. Papers Ronald Reagan 1541, 1542 (Dec.\n\n40\n\n\x0c22, 1987) (invoking the President\xe2\x80\x99s \xe2\x80\x9cexclusive authority to determine the\ntime, scope, and objectives\xe2\x80\x9d on any international negotiations); President\nCarter\xe2\x80\x99s Statement on Signing H.R. 3363 into law, II Pub. Papers Jimmy\nCarter 1434 (Aug. 15, 1979) (\xe2\x80\x9cdecisions associated with the appointment of\nAmbassadors are acknowledged to be a constitutional prerogative of the\nPresident\xe2\x80\x9d).\nCongress has also repeatedly endorsed this understanding of the Constitu\xc2\xad\ntion. John Marshall, when serving in Congress, described the President\xe2\x80\x99s\nprimacy in the conduct of foreign negotiations by referring to the President\nas \xe2\x80\x9cthe sole organ of the nation in its external relations, and its sole representa\xc2\xad\ntive with foreign nations.\xe2\x80\x9d 10 Annals of Cong. 613 (1800).\' The Senate Committee\non Foreign Relations reported to the Senate in 1816 in similar words:\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 must necessarily be m ost\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[s] this responsibility the surest pledge\nfor the faithful discharge of his duty. They think the interfer\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.\nReports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt.\n8, 56th Cong., 2d Sess. 24 (1901).2\nThese examples and authorities by no means exhaust the list of what\ncould be cited in support of our conclusion. Nonetheless, they are clearly\nsufficient to demonstrate that the President has the constitutional responsi\xc2\xad\nbility to represent the United States abroad and thus to choose the individuals\nthrough whom the Nation\xe2\x80\x99s foreign affairs are conducted. That responsibil\xc2\xad\nity cannot be circumscribed by statute.3 By requiring the President to conduct\nnegotiations by means of certain individuals, section 102(c)(2) would imper\xc2\xad\nmissibly interfere with that specific authority over foreign negotiations and\ndiplomatic appointments. Accordingly, the section is unconstitutional.\n\n1Other congressm en contemporaneously recognized that communications with foreign governments\nwas an exclusive presidential prerogative. For example. Representative James A. Bayard o f Delaware\nnoted that \xe2\x80\x9cthe Constitution has placed the power of negotiation in the hands o f the Executive only.\xe2\x80\x9d 9\nAnnals o f Cong. 2588 (1799); see also id. at 2677 (remarks o f Rep. Isaac Parker); id. at 2494 (remarks\no f Rep. Roger Griswold).\n2 Both M arshall\xe2\x80\x99s and the Com m ittee\xe2\x80\x99s statements were cited by the Supreme Court with approval in\nCurtiss- Wright, 299 U.S. at 319.\n\n41\n\n\x0cSecond, section 102(c)(2) is also constitutionally offensive on the ground\nthat the individuals illegitimately \xe2\x80\x9cappointed\xe2\x80\x9d by the section are to \xe2\x80\x9crep\xc2\xad\nresent\xe2\x80\x9d a legislative entity. Section 102(c)(2) thus seeks to inject legislative\nagents directly into the Executive\xe2\x80\x99s foreign relations negotiations, giving\nC ongress regular and unsupervised access to privileged information. The\nrole section 102(c)(2) thus envisions for the legislative branch\xe2\x80\x94 which\nw ould be \xe2\x80\x9crepresented\xe2\x80\x9d on a negotiating delegation and presumably would\nreceive reports on the conduct of negotiations from their \xe2\x80\x9crepresentative\xe2\x80\x9d\xe2\x80\x94\nw ould deprive the President o f his constitutionally-m andated control over\nthe disclosure o f the content of negotiations.4 That control\xe2\x80\x94 a necessary\nand recognized element o f executive authority\xe2\x80\x94 would be impaired by\nsection 102(c)(2).\nThat the Constitution mandates Presidential control over the disclosure of\nnegotiations was an essential element of the Founders\xe2\x80\x99 vision. As John Jay\nwrote in The Federalist:\nIt seldom happens in the negotiation of treaties, of whatever\nnature, but that perfect secrecy and immediate dispatch are\nsometimes requisite. There are cases where the most useful\nintelligence may be obtained, if the persons possessing it can\nbe relieved from apprehensions of discovery. Those appre\xc2\xad\nhensions will operate on those persons whether they are actuated\nby mercenary or friendly motives; and there doubtless are many\nof both descriptions who would rely on the secrecy of the\nPresident, but who would not confide in that of the Senate,\nand still less in that o f a large popular assembly. The conven\xc2\xad\ntion [has] done well, therefore, in so disposing of the power of\nmaking treaties that although the President must, in forming\nthem, act by the advice and consent of the Senate, yet he will\nbe able to manage the business of intelligence in such manner\nas prudence may suggest. . . . So often and so essentially have\nwe heretofore suffered from the want of secrecy and dispatch\n\xe2\x80\x99 N or can section 102(c)(2) be viewed as a legitimate exercise o f congressional power over the appro\xc2\xad\npriation o f public funds. Congress may not use that power\nto attach conditions to executive branch appropriations requiring the President to relin\xc2\xad\nquish his constitutional discretion in foreign affa irs.. . . [T]he President cannot be com\xc2\xad\npelled to give up the authority of his Office as a condition o f receiving the funds neces\xc2\xad\nsary to carrying out the duties of his Office.\nC onstitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification fo r Cer\xc2\xad\ntain CIA Covert Actions, 13 Op. O.L.C. 258, 261-62 (1989) (footnote omitted).\n4T hat participatory role in ongoing negotiations is also completely divorced from the Fram ers\xe2\x80\x99 inten\xc2\xad\ntions with respect to the activities and authority of the legislative branch. As Alexander Hamilton\nexplained:\nThe essence o f the legislative authority is to enact laws, or, in other words, to prescribe\nrules for the regulation of the society; while the execution of the laws and the em ploy\xc2\xad\nm ent o f the com m on strength, either for this purpose or for the common defense, seem to\ncom prise all the functions of the executive magistrate.\nThe Federalist No. 75, at 450 (Alexander Hamilton) (Clinton R ossitered., 1961).\n\n42\n\n\x0cthat the Constitution would have been inexcusably defective if\nno attention had been paid to those objects.\nThe Federalist No. 64, at 392-93 (John Jay) (Clinton Rossiter ed., 1961).\nSimilarly, James Madison, while serving in Congress, observed that \xe2\x80\x9cthe\nExecutive had a right, under a due responsibility, also, to withhold informa\xc2\xad\ntion, when of a nature that did not permit a disclosure of it at the time.\xe2\x80\x9d 5\nAnnals of Cong. 773 (1796).\nMoreover, the executive branch has repeatedly objected to requirements\nfor mandatory disclosure of information to Congress about international ne\xc2\xad\ngotiations. At the same time, where possible, all Presidents have provided\nbroad information to Congress about international negotiations.5 The con\xc2\xad\nduct of international negotiations is a function committed to the President\nby the Constitution, see supra, and he must have the authority to determine\nwhat information about such international negotiations may, in the public\ninterest, be made available to Congress and when such disclosure should\noccur. As the Supreme Court observed in Curtiss-Wright:\n[C ongressional legislation which is to be made effective\nthrough negotiation and inquiry within the international field\nmust often accord to the President a degree of discretion and\nfreedom from statutory restriction which would not be adm is\xc2\xad\nsible were domestic affairs alone involved. Moreover, he, not\nCongress, has the better opportunity of knowing the condi\xc2\xad\ntions which prevail in foreign countries . . . .\nHe has his\nconfidential sources of information. He has his agents in the\nform of diplomatic, consular and other officials. Secrecy in\n\n\xe2\x80\x99 This balanced view of the President\xe2\x80\x99s responsibilities with respect to the disclosure o f negotiations\nhas been the consistent position of the executive branch since 1792, when President Washington re\xc2\xad\nceived a request from the Congress for all \xe2\x80\x9cpersons, papers, and records\xe2\x80\x9d relating to the failure of M ajor\nGeneral St. C lair\xe2\x80\x99s military expedition against the Indians. 2 Annals of Cong 493(1792). Secretary of\nState Jefferson\xe2\x80\x99s notes reflect that President Washington thereafter convened the Cabinet to determ ine\nthe proper response. 1 The Writings o f Thomas Jefferson 303 (Andrew A. Lipscomb ed., 1903). The\nPresident and the Cabinet concluded that \xe2\x80\x9cthe Executive ought to com municate such papers as the\npublic good would permit, and ought to refuse those, the disclosure of which would injure the public.\xe2\x80\x9d\nId. at 304. The President ultimately decided to produce the requested documents. He directed Secretary\nJefferson to negotiate an agreement with Congress that acknowledged the President\xe2\x80\x99s right to protect\nstate secrets, the public disclosure of which he determined could adversely affect national security.\nJefferson\xe2\x80\x99s efforts were successful, and on April 4, 1792, the House resolved\n[t]hat the President of the United States be requested to cause the proper officers to lay\nbefore this House such papers o f a public nature, in the Executive Department, as may be\nnecessary to the investigation of the causes of the failure of the late expedition under\nMajor General St. Clair.\n3 Annals of Cong. 536 (1792) (emphasis added).\nSimilarly, in 1794, the Senate requested correspondence between the U. S. M inister to France and\nthe Republic of France, and between the Minister and the State Department. Senate Journal, 3d Cong.,\n1st Sess. 42 (1794). President Washington submitted certain o f the correspondence requested, but w ith\xc2\xad\nheld \xe2\x80\x9cthose particulars which, in my judgment, for public considerations, ought not to be com m uni\xc2\xad\ncated.\xe2\x80\x9d 1 James D. Richardson, Messages and Papers o f the Presidents 152 (1896).\n\n43\n\n\x0crespect o f information gathered by them may be highly neces\xc2\xad\nsary, and the premature disclosure of it productive of harmful\nresults. Indeed, so clearly is this true that the first President\nrefused to accede to a request to lay before the House of Rep\xc2\xad\nresentatives the instructions, correspondence and documents\nrelating to the negotiation of the Jay Treaty \xe2\x80\x94 a refusal the\nwisdom of which was recognized by the House itself and has\nnever since been doubted.\n299 U.S. at 320.6 Curtiss-Wright thus clearly establishes that the President\nhas the authority to determine what information about international negotia\xc2\xad\ntions may, in the public interest, be made available to Congress and when, if\nat all, such disclosure should occur. Section 102(c)(2), however, would\nsubvert the President\xe2\x80\x99s control over the disclosure o f negotiations by insert\xc2\xad\ning a \xe2\x80\x9crepresentative\xe2\x80\x9d of the legislative branch into diplomatic negotiations.7\nAgain, the examples and authorities offered do not exhaust those that\ncould be invoked in support o f our conclusion. Nonetheless, we believe that\nthe historical record is clear that the President has the constitutional author\xc2\xad\nity to control disclosure of the content of negotiations to Congress. It follows,\nequally clearly, that a provision that purports to place a \xe2\x80\x9crepresentative\xe2\x80\x9d of a\nlegislative entity upon an executive negotiating team is inconsistent with\nthat authority, and is unconstitutional.\n2. Section 102(c)(2) is Severable\nThe unconstitutional requirement that representatives of the Commission\nbe included at the CSCE negotiations may be severed from the authorization\nfor appropriations. Because the condition is severable, the President may\nenforce the remainder of the provision, disregarding the condition contained\nin section 102(c)(2).\nA presumption in favor of the severability of unconstitutional provisions\nexists so long as what remains of the statute is capable of functioning inde\xc2\xad\npendently. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality\nopinion); Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir.\n1985), a j f \xe2\x80\x99d sub nom. Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987).\nAs the Supreme Court has explained on many occasions, \xe2\x80\x9c[ujnless it is\nevident that the Legislature would not have enacted those provisions which\n\n\xe2\x80\x98 The Court in Curtiss-W right specifically endorsed President Washington\xe2\x80\x99s refusal to provide the House\nw ith inform ation it requested about treaty negotiations, even after the negotiations had been concluded.\n299 U.S. at 320-21. A fortiori, the President has constitutional authority to withhold such information\nduring the negotiations.\n7 The effect o f this provision would also be to vitiate the President\xe2\x80\x99s authority to determine not to\ndisclose particular inform ation because such disclosure would jeopardize national security. See United\nStates v. N ixon, 418 U.S. 683, 710-11 (1974); Assertion o f State Secrets Privilege in Civil Litigation, 3\nOp. O .L.C. 91 (1979).\n\n44\n\n\x0care within its power, independently of that which is not, the invalid part may\nbe dropped if what is left is fully operative as a law.\xe2\x80\x9d Champlin Ref. Co. v.\nCorporation Comm\'n, 286 U.S. 210, 234 (1932), quoted in Alaska Airlines,\n480 U.S. at 684. This presumption may be overcome by evidence that,\nabsent the unconstitutional provision, the statute will not function \xe2\x80\x9cin a m an\xc2\xad\nner consistent with the intent of Congress.\xe2\x80\x9d Alaska Airlines, Inc. v. Brock,\n480 U.S. at 685.\nThe authorization contained in section 102(c)(1) functions independently\nof the provision in section 102(c)(2). Accordingly, the unconstitutional con\xc2\xad\ndition in section 102(c)(2) may be severed from the remainder of the provision\nunless there is evidence that Congress would not have enacted the authoriza\xc2\xad\ntion absent the condition.8\nThere is no such evidence. Nothing in the debates concerning the condi\xc2\xad\ntion suggests that Congress would not have enacted the authorization if the\nrequirement of Commission representation was invalidated. The condition\nwas added in the House as an amendment to the existing authorization pro\xc2\xad\nvision. See 135 Cong. Rec. 6265 (1989). Its purpose was to enable members\nof the Commission to continue their previous participation in the CSCE\nnegotiations. See 135 Cong. Rec. 14,787 (1989) (statement of Sen. Fowler);\nid. (statement of Sen. D \xe2\x80\x99Amato); id. (statement of Sen. DeConcini). No\none, however, indicated that they would disapprove funding for the negotia\xc2\xad\ntions if the Commission access requirement were deleted. The chairman of\nthe House subcommittee said only that \xe2\x80\x9c[i]t is an okay amendment.\xe2\x80\x9d 135\nCong. Rec. 6265 (1989) (statement of Rep. Dymally).\nThat Congress early desired to impose the condition on the authorization\ndoes not mean that Congress would not have authorized the funds without\nthe condition. The Supreme Court declined to make this assumption in FCC\nv. League o f Women Voters, 468 U.S. 364 (1984), where the court held that\nan appropriations law\xe2\x80\x99s prohibition on editorializing by public broadcasting\nstations violated the First Amendment, but did not even consider whether\nthe invalidity of the condition should result in the invalidity of the entire\n\n\' We reject any argum ent that the conditional clause \xe2\x80\x9cunless the United States delegation to any such\nmeeting includes individuals representing the Commission on Security and Cooperation in Europe\xe2\x80\x9d is\nthe relevant language to be severed from the provision. It is merely an accident of gram m ar that this\nclause can be deleted without making nonsense of section 102(c)(2) as a whole Moreover, with this\nclause deleted section 102(c)(2) would deny the President funding for a particular type o f negotiations.\nFor the reasons discussed above, this would in itself raise serious constitutional questions as an interfer\xc2\xad\nence with the President\xe2\x80\x99s authority to conduct diplomacy as he sees fit. There is obviously no reason to\nprefer a severability analysis that presents the same constitutional questions that gave rise to the analy\xc2\xad\nsis in the first place. Cf. Edward J. DeBarlolo Corp v. Florida G ulf Coast Bldg. & Constr. Trades\nCouncil, 485 U.S. 568, 575 (1988) (statutes should be construed to avoid constitutional questions).\nSection 102(c)(2) in its entirety is naturally understood as the condition regarding the CSCE negotia\xc2\xad\ntions, and the proper question is whether that whole section is severable.\n\n45\n\n\x0cappropriation.9 Indeed, we are aware of no instance in which the Supreme\nCourt has ever invalidated an appropriation because a condition on the use of\nthe appropriation was held unconstitutional.\nWe are also reluctant to attribute to Congress an intent to preclude the\nU nited States from engaging in the CSCE negotiations. Congress was keenly\naware of the significance of the negotiations concerning conventional mili\xc2\xad\ntary forces in Europe. The care with which Congress considered the\nnegotiations illustrates their importance to Congress. We cannot believe that\nCongress would have preferred no participation by the United States in the\nCSCE negotiations to participation by a delegation that does not include\nrepresentatives of the Commission.\n3. The President M ay Refuse to Enforce Section 102(c)(2)\nThe final issue we address is whether the President may refuse to enforce\nan unconstitutional provision such as section 102(c)(2).10 The Department\no f Justice has consistently advised that the Constitution provides the Presi\xc2\xad\ndent with such authority. Both the President\xe2\x80\x99s obligation to \xe2\x80\x9ctake Care that the\nLaws be faithfully executed\xe2\x80\x9d and the President\xe2\x80\x99s oath to \xe2\x80\x9cpreserve, protect and\ndefend the Constitution of the United States\xe2\x80\x9d vest that conflict with the highest\nlaw, the Constitution. We emphasize, however, that there is little judicial au\xc2\xad\nthority concerning this question, and the position remains controversial.\nThe President\xe2\x80\x99s authority to refuse to enforce a law that he believes is\nunconstitutional derives from his duty to \xe2\x80\x9ctake Care that the Laws be faith\xc2\xad\nfully executed,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3 and the obligation to \xe2\x80\x9cpreserve,\nprotect and defend the Constitution of the United States\xe2\x80\x9d contained in the\nPresident\xe2\x80\x99s oath of office. U.S. Const, art. II, \xc2\xa7 1. The Constitution is the\nsuprem e law that the President has a duty to take care to faithfully ex\xc2\xad\necute.11 W here a statute enacted by Congress conflicts with the Constitution,\nthe President is placed in the position o f having the duty to execute two\nconflicting \xe2\x80\x9claw s\xe2\x80\x9d : a constitutional provision and a contrary statutory\n\n9Justice Stevens, dissenting alone, said that there was a \xe2\x80\x9cserious question . . . whether the entire public\nfunding schem e is severable from the prohibition on editorializing and political endorsements." FCC v.\nLeague o f Women Voters, 468 U.S. at 411 n.3 (Stevens, J., dissenting).\n\'\xe2\x80\x9cT he analysis o f this question does not depend on w hether the President signed the bill or not. As the\nSuprem e Court has observed, \xe2\x80\x9cit is not uncomm on for Presidents to approve legislation containing parts\nw hich are objectionable on constitutional grounds." IN S v. Chadha, 462 U.S. 919, 942 n.13 (1983)\nT hat the President has signed the bill in no way estops his ability to assert the bill\xe2\x80\x99s unconstitutionality,\nin court or otherwise. See id.\n" It is generally agreed that the Constitution is a law w ithin the meaning of the Take Care Clause. See,\ne.g.. C onstitutionality o f GAO\'s Bid Protest Function: Hearings Before the Subcomm. o f the House\nComm, on G overnm ent Operations, 99th Cong., 1st Sess. 23 (1985) ("B id Protest Hearings") (state\xc2\xad\nm ent o f Professor Mark Tushnet) (\xe2\x80\x9cthe President is required faithfully to execute the laws o f the United\nStates, w hich surely include the Constitution as supreme law \xe2\x80\x9d); Letter for Secretary o f Education Shirley\nM . H ufstedler from Attorney General Benjam in R. Civiletti at 12 (June 5, 1980) (\xe2\x80\x9cthe Executive\xe2\x80\x99s duty\nfaithfully to execute the law embraces a duty to enforce the fundamental law set forth in the Constitution\nas w ell as a duty to enforce the law founded in the Acts o f Congress, and cases arise in which the duty\nto the one precludes the duty to the other\xe2\x80\x9d ).\n\n46\n\n\x0crequirement. The resolution of this conflict is clear: the President must\nheed the Constitution\xe2\x80\x94 the supreme law of our Nation.\nMoreover, the Take Care Clause does not compel the President to execute\nunconstitutional statutes. An unconstitutional statute is not a law. Alexander\nHamilton explained:\nThere is no position which depends on clearer principles\nthan that every act of a delegated authority, contrary to the\ntenor of the commission under which it is exercised, is void.\nNo legislative act, therefore, contrary to the Constitution, can\nbe valid. To deny this would be to affirm that the deputy is\ngreater than his principal; that the servant is above his master;\nthat the representatives of the people are superior to the people\nthemselves; that men acting by virtue of powers may do not\nonly what their powers do not authorize, but what they forbid.\nThe Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,\n1961). John Marshall stated the same position in Marbury v. Madison-.\nCertainly all those who have framed written constitutions\ncontemplate them as forming the fundamental and paramount\nlaw of the nation, and consequently the theory of every such\ngovernment must be, that an act o f the legislature, repugnant\nto the constitution, is void.\n5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).12\nThe President\xe2\x80\x99s oath of office is the other constitutional provision autho\xc2\xad\nrizing the President to refuse to enforce a law. The Constitution requires the\nPresident to take an oath in which he promises to \xe2\x80\x9cpreserve, protect and\ndefend the Constitution of the United States.\xe2\x80\x9d U.S. Const, art II, \xc2\xa7 1. As\nChief Justice Chase asked, \xe2\x80\x9cHow can the President fulfill his oath to pre\xc2\xad\nserve, protect, and defend the Constitution, if he has no right to defend it\nagainst an act of Congress sincerely believed by him to have been passed in\nviolation of it?\xe2\x80\x9d Letter from Chief Justice Chase to Gerrit Smith, Apr. 19,\n1868, quoted in J. W. Schuckers, The Life and Public Services o f Salmon\n,! Even though the Constitution provides that a measure enacted pursuant to the procedure described in\nU.S. Const, art. I, \xc2\xa7 7 \xe2\x80\x9cshall become a Law,\xe2\x80\x9d the fact that a law was adopted consistently with the consti\xc2\xad\ntutional process will not save it. Only laws \xe2\x80\x9cmade in Pursuance\xe2\x80\x9d of the Constitution \xe2\x80\x9cshall be the su \xc2\xad\npreme Law o f the Land." U.S. Const, art. VI; see also Marbury v. M adison. 5 U.S. (1 C ranch)at 180. A\nlaw that is not in pursuance o f the Constitution is not the supreme law of the land \xe2\x80\x94 indeed, it is not law.\nAnd if an unconstitutional law is void, then the President has no obligation to enforce it. See, e.g.. Letter\nfrom C hief Justice Chase to Gerrit Smith, Apr 19, 1868, quoted in J. W. Schuckers, The Life and Public\nServices o f Salmon Portland Chase 577 ( 1874) (\xe2\x80\x9cNothing is clearer to my mind than that acts of Congress\nnot warranted by the Constitution are not laws \xe2\x80\x9d); 11 Op. A tt\xe2\x80\x99y Gen. 209, 214 (1865) (\xe2\x80\x9c If any law be\nrepugnant to the Constitution, it is void; in other words, it is no law.\xe2\x80\x99\xe2\x80\x99).\n\n47\n\n\x0cPortland Chase 578 (1874) (\xe2\x80\x9cLetter from Chief Justice Chase\xe2\x80\x9d). Chief Jus\xc2\xad\n\ntice Chase concluded that the President\xe2\x80\x99s obligation to defend the Constitution\nof the United States authorizes him to decline to enforce statutes which he\nbelieves are unconstitutional.13 The President\xe2\x80\x99s obligation to defend the Con\xc2\xad\nstitution permits him to decline to enforce a statute which is unconstitutional.\nJust as the Take Care Clause requires the President to faithfully execute the\nlaws, including the Constitution as the supreme law, the oath to defend the\nConstitution allows the President to refuse to execute a law he believes is\ncontrary to the supreme law, the Constitution.\nIndeed, the Framers of the Constitution anticipated the question of the\nPresident\xe2\x80\x99s authority to refuse to enforce unconstitutional laws and indicated\nthat the Constitution affords the President the authority to refuse to enforce\nunconstitutional legislation. James Wilson, one of the key drafters and ad\xc2\xad\nvocates o f the Constitution, addressed this question before the Pennsylvania\nconvention that was debating whether to ratify the proposed Constitution.\nHe stated:\n[I]t is . . . proper to have efficient restraints upon the legisla\xc2\xad\ntive body. These restraints arise from different sources. I will\nmention some of them. . . . I had occasion, on a former day . . . to\nstate that the power o f the Constitution was paramount to the\npower o f the legislature, acting under that Constitution. For it\nis possible that the legislature, when acting in that capacity,\nmay transgress the bounds assigned to it, and an act may pass,\nin the usual mode, notwithstanding that transgression; but when\nit comes to be discussed before the judges \xe2\x80\x94 when they con\xc2\xad\nsider its principles and find it to be incompatible with the\nsuperior power of the Constitution, it is their duty to pronounce\nit void. . . . In the sam e manner, the President o f the United\nStates could shield him self and refuse to carry into effect an\na c t that violates the Constitution.\n2 The D ocum entary History o f the Ratification o f the Constitution 450 (Merrill\nJensen ed. 1976) (statement of James Wilson on Dec. 1, 1787) (second em \xc2\xad\nphasis added).\n13 C h ie f Ju stic e C h a se answ ered his q u e stio n by en d o rsin g P resident Jo hnson\xe2\x80\x99s decisio n to refuse to\ne n fo rc e th e law :\nTo m e, th e re fo re , it seems p e rfe c tly clear that th e P resident had a p erfect right, and\nin d e e d w as u n d e r the highest o b lig a tio n , to rem ove Mr. Stanton, if he m ade the rem oval\nn o t in w a n to n d isre g ard o f a c o n stitu tio n al law, b u t w ith a sincere be lie f that the T enureo f-O ffic e A ct w as u n constitutional an d fo r the p u rp o se o f b rin g in g the questio n before\nth e S u p rem e C o u rt. Plainly it w as a proper and peaceful, if not the only proper and peaceful\nm ode o f protecting an d defending th e Constitution.\nL e tte r fro m C h ie f J u stic e C hase at 578. Sim ilarly, this O ffice has o p ined that \xe2\x80\x9c the P resid e n t\xe2\x80\x99s du ty to\nu p h o ld th e C o n stitu tio n carrie s with it a prero g ativ e to d isreg ard unconstitutional statu tes.\xe2\x80\x9d M em o ran \xc2\xad\ndu m fo r R o b ert J. L ip sh u tz , Counsel to th e P resident, fro m John M . H arm on, A ssistant A ttorney G e n \xc2\xad\ne ra l, O ffice o f L e g a l C o u n se l at 16 (S ept. 17, 1977) (\xe2\x80\x9c H arm o n M em orandum \xe2\x80\x9d ).\n\n48\n\n\x0cThis understanding comports with the Framers\xe2\x80\x99 profound structural con\xc2\xad\ncern about the threat of legislative encroachments on the Executive and the\njudiciary. As Madison observed, \xe2\x80\x9cThe legislative department is everywhere\nextending the sphere of its activity and drawing all power into its impetuous\nvortex.\xe2\x80\x9d The Federalist No. 48, at 309 (James Madison) (Clinton Rossiter\ned., 1961). As Chief Justice Burger more recently admonished, \xe2\x80\x9c[t]he hy\xc2\xad\ndraulic pressure inherent within each of the separate Branches to exceed the\nouter limits of its power, even to accomplish desirable objectives, must be\nresisted.\xe2\x80\x9d INS v. Chadha, 462 U.S. at 951. In particular, presidential deci\xc2\xad\nsions not to enforce a statute which violates the separation of powers have\nbeen justified by the need to resist legislative encroachment. For example,\nin 1860 Attorney General Black advised President Buchanan that the Presi\xc2\xad\ndent could refuse to enforce an unconstitutional 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.\n9 Op. Att\xe2\x80\x99y Gen. 462, 469-70 (I860).14\nFor the reasons discussed above, the Department of Justice in modem\ntimes has also consistently advised that the Constitution authorizes the Presi\xc2\xad\ndent to refuse to enforce a law that he believes is unconstitutional. See, e.g.,\nLetter for Congressman Peter W. Rodino, Jr., from Attorney General W ill\xc2\xad\niam French Smith at 3 (Feb. 22, 1985) (\xe2\x80\x9cAttorney General Smith Letter\xe2\x80\x9d)\n(the decision not to enforce the Competition in Contracting Act was based\nupon \xe2\x80\x9cthe duty of the President to uphold the Constitution in the context of\nthe enforcement of Acts of Congress\xe2\x80\x9d and the President\xe2\x80\x99s \xe2\x80\x9coath to \xe2\x80\x98preserve,\nprotect and defend\xe2\x80\x99 the Constitution\xe2\x80\x9d); Letter for Congressman Thomas P.\nO \xe2\x80\x99Neill, Jr., from Attorney General Benjamin R. Civiletti (Jan. 13, 1981);\nHarmon Memorandum at 16 (\xe2\x80\x9cthe President\xe2\x80\x99s duty to uphold the Constitu\xc2\xad\ntion carries with it a prerogative to disregard unconstitutional statutes\xe2\x80\x9d).\nThe Department has given the same advice whether or not the President\nsigned the law which he intends not to enforce. See,, e.g., Attorney General\nSmith Letter; Harmon Memorandum.\n\n14 See also R aoul B erger, Executive Privilege: A Constitutional Myth 309 (1974) (\xe2\x80\x9c A greed that a v e to\ne xhausts p re sid en tial p o w er w hen the issue is the wisdom o f the legislation. B ut the o b ject o f the\nF ram ers w as to p rev en t \xe2\x80\x98encroachment \xe2\x80\x99; and they w ere too practical to lim it the P resid e n t\xe2\x80\x99s p o w e r to\n\xe2\x80\x98d e fe n d \xe2\x80\x99 the C o n stitu tio n a g ain st a breach o f its very essence: the separation o f pow ers. . . . I w ou ld\ntherefore h o ld th at the p resid en tial o ath to \xe2\x80\x98p ro tect and d efen d the C o n stitu tio n \' posits b oth a right a n d a\nduty to protect h is ow n con stitu tio n al functions from congressional im pairm ent.\xe2\x80\x9d ).\n\n49\n\n\x0cWe, too, conclude that at least in the context of legislation that infringes\nthe separation o f powers, the President has the constitutional authority to\nrefuse to enforce unconstitutional laws. The opinions of the Department of\nJustice have long recognized the President\xe2\x80\x99s authority to refuse to enforce a\nstatutory provision that interferes with the President\xe2\x80\x99s exercise of his consti\xc2\xad\ntutional powers. See, e.g.. Attorney General Smith Letter at 3 (the decision\nnot to enforce the Competition in Contracting Act was justified by the\nPresident\xe2\x80\x99s \xe2\x80\x9cconstitutional duty to protect the Presidency from encroach\xc2\xad\nment by the other branches\xe2\x80\x9d); Recommendation that the Department o f Justice\nnot D efend the Constitutionality o f Certain Provisions o f the Bankruptcy\nAm endm ents and Federal Judgeship A ct o f 1984, 8 Op. O.L.C. 183, 195\n\n(1984) (describing the historical practice of the President \xe2\x80\x9cunder which the\nPresident need not blindly execute or defend laws enacted by Congress if\nsuch laws trench on his constitutional power and responsibility\xe2\x80\x9d). James\nW ilson\xe2\x80\x99s statement, quoted above, provides further evidence of the constitu\xc2\xad\ntional authority of the President to shield him self from unconstitutional\nlegislation by refusing to enforce such laws. We therefore advise that the\nPresident has the constitutional power to refuse to enforce laws that violate\nthe separation of powers.\nWe recognize that opponents of presidential authority to refuse to enforce\nan unconstitutional statute attempt to draw support for their views in the\nsame constitutional texts cited by proponents of such authority. The Take\nCare Clause is often quoted as providing self-evident proof that the Presi\xc2\xad\ndent may not refuse to enforce a law which he believes is unconstitutional.15\nThis reading of the provision denies the President any discretion to refuse to\nenforce a law that is unconstitutional. See, e.g., B id Protest Hearings at 88\n(Letter from Professor Eugene Gressman).\nWe reject this reading of the Take Care Clause because it rests on two\nfaulty premises concerning the nature o f the \xe2\x80\x9claws\xe2\x80\x9d which the President\nmust enforce: first, that the President will never be faced with a conflict\nbetween a statute and the Constitution, and second, that an unconstitutional\nlaw is truly \xe2\x80\x9claw\xe2\x80\x9d for the purposes of the Take Care Clause. As explained\nabove, both o f these premises are invalid. Statutes do conflict with the\nConstitution, and unconstitutional statutes are not laws the President must\nfaithfully execute.\nWe are also aware that others have argued that the President may not\nrefuse to enforce a law because the executive branch is not the institution\nwithin the federal government that is authorized to determine whether a law\nis unconstitutional. We have ourselves testified that \xe2\x80\x9cuntil a law is adjudi\xc2\xad\n\n\'sSee, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1124 (9th Cir. 1988) ("To\nc o n stru e th is d u ty to fa ith fu lly execute th e law s as im p ly in g the p o w er to forbid th eir execution perverts\nthe c le a r la n g u a g e o f th e \xe2\x80\x98tak e care\xe2\x80\x99 c la u s e . . . . \xe2\x80\x9d), withdrawn in relevant part, 893 F.2d 205 (9th Cir.\n1989); A rth u r S. M iller, The President and Faithful Execution o f the Laws, 4 0 V and. L. Rev. 389, 396\n(1 9 8 7 ) ( \xe2\x80\x9cTo say th a t th e P resident\xe2\x80\x99s d u ty to faithfully e x ec u te the law s im plies a pow er to forbid their\ne x e c u tio n is to flo u t th e p la in language o f the C o n stitu tio n .\xe2\x80\x9d ).\n\n50\n\n\x0ccated to be unconstitutional, the issue of enforcing a statute of questionable\nconstitutionality raises sensitive problems under the separation of powers.\xe2\x80\x9d\nB id Protest Hearings at 318-19 (statement of Acting Deputy Attorney Gen\xc2\xad\neral D. Lowell Jensen). We reject, however, the argument that the President\nmay not treat a law as invalid prior to a judicial determination but rather\nmust presume it to be constitutional. It affects a subtle, but fundamental\ntransformation from the position, established in Marbury, that in deciding a\ncase or controversy the judiciary ultimately decides whether a statute is\nconstitutional to the position that a law is unconstitutional only when the\ncourts say it conflicts with the Constitution. Professor Levinson has ex\xc2\xad\nplained why this cannot 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 is independent of judicial recognition. To\nargue otherwise is ultimately to adopt a theory that says that\nthe basis of law \xe2\x80\x94 including a declaration of unconstitution\xc2\xad\nality \xe2\x80\x94 is the court\xe2\x80\x99s decision itself. Among other problems\nwith this theory is the incoherence it leads to in trying to\ndetermine what it can mean for judges to be faithful to their\nconstitutional oaths.\nBid Protest Hearings at 67.\n\nStill others have argued that the veto power is the only tool available to\nthe President to oppose an unconstitutional law. We agree that the veto\npower is the primary tool available to the President. We disagree, however,\nwith the contention that the Framers intended it to be the only tool at the\nPresident\xe2\x80\x99s disposal. James Wilson\xe2\x80\x99s statement, quoted above, demonstrates\nthat the idea that the President has the authority to refuse to enforce a law\nwhich he believes is unconstitutional was familiar to the Framers. The\nConstitution qualifies the President\xe2\x80\x99s veto power in the legislative process,\nbut it does not impose a similar qualification on his authority to take care\nthat the laws are faithfully executed.\nFinally, we emphasize that this conclusion does not permit the President\nto determine as a matter of policy discretion which statutes to enforce. The\nonly conclusion here is that he may refuse to enforce a law which he be\xc2\xad\nlieves is unconstitutional. Obviously, the argument that the President\xe2\x80\x99s\nobligation to defend the Constitution authorizes him to refuse to enforce an\nunconstitutional statute does not authorize the President to refuse to enforce\na statute he opposes for policy reasons. Thus, instances in which courts\n\n51\n\n\x0chave rejected the claims of general presidential discretion to refuse to en\xc2\xad\nforce a statutory command are irrelevant to the question of whether the President\nmay refuse to enforce a law because he considers it unconstitutional.16\n\nConclusion\nFor the reasons given above, we conclude that section 102(c)(2) is uncon\xc2\xad\nstitutional. We also conclude that it is severable, and that the President may\nconstitutionally decline to enforce it.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c In K endall v. U nited States, 37 U .S . (12 Pet.) 524 (1 8 3 8 ), the P ostm aster G eneral refused to com ply\nw ith a s tatu te th at o rd e re d him to pay tw o c o n tracto rs fo r m ail carry in g services. T h e C ourt, alth o u g h\nd e n y in g th a t the P resid e n t was m aking su ch an arg u m en t, said, \xe2\x80\x9cTo contend that the o b ligation im posed\no n th e P resid e n t to see the laws faith fu lly executed, im p lie s a p o w er to forbid th e ir e xecution, is a novel\nc o n stru c tio n o f th e constitution, an d e n tire ly in a d m issib le .\xe2\x80\x9d Id. a t 613. Kendall, how ever, d id not\nin v o lv e a c la im by th e President that h e w as being o rd e re d to en fo rce an u n constitutional law, and thus\nth e C o u rt h a d n o o c ca sio n to exam ine th e u n ique co n sid eratio n s p resented by such a claim .\nP re s id e n t N ix o n \xe2\x80\x99s d e cisio n to im p o u n d funds ap p ro p riated by C ongress is a nother e x am p le o f an\ne x e c u tiv e re fu sa l to e n fo rc e a federal law, b u t th ere, to o . P resident N ixon did not contend that the law\nw as u n c o n stitu tio n a l. A ssistant A tto rn ey G eneral R eh n q u ist acknow ledged that \xe2\x80\x9c it seem s an a n o m a \xc2\xad\nlo u s p ro p o s itio n th a t b ecau se the E x e c u tiv e branch is b o u n d to ex ecu te the law s, it is free to d eclin e to\ne x e c u te th e m .\xe2\x80\x9d H e a d d ed , however, th a t \xe2\x80\x9c [o ]f co u rse, if a C ongressional d ire c tiv e to spend w ere to\nin te rfe re w ith th e P re s id e n t\xe2\x80\x99s authority in an are a c o n fid e d by the C onstitution to his su b stantive d ire c \xc2\xad\ntio n an d c o n tro l, su ch as h is authority as C o m m an d er-in -C h ief o f the A rm ed F orces and his auth o rity\no v e r fo re ig n affa irs, a situation w ould b e presented v ery d ifferent from the one before u s.\xe2\x80\x9d M em o ran \xc2\xad\nd u m Re: Presidential Authority to Im pound Funds Appropriated fo r Assistance to Federally Im pacted\nSchools at 11 (D ec. 1, 1969) (citation om itted).\n\n52\n\n\x0c'


b'Definition of \xe2\x80\x9c Candidate\xe2\x80\x9d Under 18 U.S.C. \xc2\xa7207(j)(7)\nF or p u rp o ses o f the \xe2\x80\x9c on b e h a lf of a can d id ate\xe2\x80\x9d exem ption contained in section 207(j)(7) o f title\n18, a successful candidate should be view ed as seeking office until the candidate assum es the\noffice to w hich he o r she has been elected.\n\nNovember 6, 2000\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nO f f ic e o f G o v e r n m e n t E t h i c s\n\nYou have asked for our opinion regarding the application of the exemption con\xc2\xad\ntained in 18 U.S.C. \xc2\xa7 207(j)(7) (Supp. IV 1998) to the activities of certain former\nexecutive branch employees who serve on a Presidential transition team. Specifi\xc2\xad\ncally, you have asked us when an individual ceases to be a candidate for purposes\nof this exemption.\nSubsection (c) of \xc2\xa7 207 prohibits certain former officers or employees of the\nexecutive branch from communicating on behalf of any person except the United\nStates, within one year of termination, with the department or agency in which\nthe officer or employee served. In the case o f certain \xe2\x80\x9c very senior personnel of\nthe executive branch,\xe2\x80\x9d including the Vice President, subsection (d) extends this\nban to communications to certain high level officials in other agencies. Subsection\n(j)(7)\' provides an exemption from this restriction for individuals who commu\xc2\xad\nnicate or appear solely on behalf of a candidate in his or her capacity as a can\xc2\xad\ndidate so long as, at the time o f the communication or appearance, the person\nis not employed by a person or entity other than the candidate (except for a person\nor entity who only represents or advises candidates). Subsection (7)(j)(C)(i)\ndefines the term \xe2\x80\x9c candidate\xe2\x80\x9d to mean:\n[A]ny person who seeks nomination for election, or election, to\nFederal or State office or who has authorized others to explore on\n1 Subsections (j)(7)(A), (B) provide\xe2\x80\x99\n(A) Except as provided in subparagraph (B ), the restrictions contained in subsections (c), (d), and (e) shall\nnot apply to a communication or appearance made solely on behalf o f a candidate m his or her capacity\nas a candidate, an authorized committee, a national committee, a national Federal campaign committee,\na State committee, or a political party\n(B) Subparagraph (A) shall not apply to \xe2\x80\x94\n(i) any communication to, or appearance before, the Federal Election Commission by a former officer\no r employee o f the Federal Election Commission; or\n(n) a communication or appearance made by a person who is subject to the restrictions contained in sub\xc2\xad\nsections (c), (d), o r (e) if, at the time o f the communication or appearance, the person is employed by\na person or entity other than \xe2\x80\x94\n(I) a candidate, an authorized committee, a national committee, a national Federal campaign committee,\na State committee, or a political party, or\n(II) a person or entity w ho represents, aids, or advises only persons or entities described in subclause\n\n(I)\n18 U.S C. \xc2\xa7 207(j)(7)(A), (B).\n\n288\n\n\x0cDefinition o f \xe2\x80\x9cCandidate" Under 18 U.S.C. \xc2\xa7 207(j)(7)\n\nhis or her behalf the possibility of seeking nomination for election,\nor election, to Federal or State office.\n18 U.S.C. \xc2\xa7 207(j)(7)(C)(i).\nThe exemption provided for in \xc2\xa7207(j)(7) was added to the ethics statute in\nAugust of 1996 by the Office of Government Ethics Authorization Act o f 1996.\nSee 110 Stat. 1566, 1567 (1996). At a minimum, the definition of \xe2\x80\x9c candidate\xe2\x80\x9d\nset forth in subsection (j)(7)(C)(i) explicitly establishes that a person holds the\nstatus of a candidate so long as he \xe2\x80\x9c seeks . . . election\xe2\x80\x9d to office. Ordinarily,\na candidate would be thought to seek election to an office up to the point at\nwhich his or her election to that office is determined. In the case of the office\nof President and Vice President, the actual election of the candidate takes place\nthrough the electoral college. See U.S. Const, art. II, \xc2\xa7 1 & amend. XII. After\nthe state electors cast their votes, the outcome of the election is declared by the\nPresident of the Senate, who, in the presence of the entire Congress, counts the\nvotes. U.S. Const, amend. XII; see also 3 U.S.C. \xc2\xa7 15 (1994) (after President of\nthe Senate counts the vote, his announcement will be deemed a sufficient declara\xc2\xad\ntion of the persons elected to President and Vice President). You have informed\nus that the votes of the electors will likely be tallied on January 6, 2001. See\nalso 3 U.S.C. \xc2\xa7 15. Under the Constitution, until the votes of the electors have\nbeen tallied and certified, all candidates for President and Vice President retain\ntheir status as candidates. Neither the President nor the Vice President is\n\xe2\x80\x9c elected\xe2\x80\x9d until the conclusion of that procedure. See U.S. Const, art. II, \xc2\xa7 1 &\namend. XII.\nYou have noted, however, that \xe2\x80\x9c even if a candidate continues to be a candidate\nup to the day of the presentation of the electors\xe2\x80\x99 votes to the Congress, this would\nstill leave a significant period of time in which transition activities will continue\nprior to the day of the inauguration of the President.\xe2\x80\x9d Letter for Randolph D.\nMoss, Assistant Attorney General , Office of Legal Counsel, from F. Gary Davis,\nActing Director, Office of Government Ethics at 2 (Oct. 6, 2000). Implicit in\nyour letter is the question whether a candidate for President or Vice President\ncan be deemed a \xe2\x80\x9c candidate\xe2\x80\x9d up until the point of inauguration in order to permit\nan orderly and effective transition from one elected official to another.2 The gen\xc2\xad\neral understanding of a \xe2\x80\x9c candidate\xe2\x80\x9d is \xe2\x80\x9c one that presents himself or is presented\nby others . . . as suitable for and aspiring to an office.\xe2\x80\x9d Webster\xe2\x80\x99s Third New\nInternational Dictionary at 325 (1993). This is consistent with the statutory defini\xc2\xad\ntion, which refers to a person who \xe2\x80\x9c seeks nomination for election, or election.\xe2\x80\x9d\nTo \xe2\x80\x9c elect,\xe2\x80\x9d in the context of an election to office, is generally defined as \xe2\x80\x9c to\n2 We previously addressed the issue of whether the one year bar prohibiting certain former government employees\nfrom contacting their former agency, contained in 18 U S.C. \xc2\xa7 207(c), applied lo former government employees\nwho were working for the President-elect\xe2\x80\x99s transition team See Applicability o f 18 U S C \xc2\xa7 207(c) to PresidentElect\'s Transition Team, 12 Op. O.L.C 264 (1988) However, that advice predated the enactment of \xc2\xa7207(j)(7)\xe2\x80\x99s\nexemption.\n\n289\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nchoose (a person) for an office,\xe2\x80\x9d and when used as an adjective ordinarily means\n\xe2\x80\x9c chosen for office or position but not yet installed.\xe2\x80\x9d Id. at 731. This would appear\nto support a reading of the statute that would terminate a person\xe2\x80\x99s status as a\ncandidate once the final selection had taken place, even though he or she had\nnot yet been sworn into office. As previously discussed, for a presidential can\xc2\xad\ndidate, this would occur on January 6th.\nHowever, in light of the legislative history and purpose of this statutory amend\xc2\xad\nment, giving the term \xe2\x80\x9c candidate\xe2\x80\x9d its ordinary meaning in applying this exemp\xc2\xad\ntion creates an irrational distinction between those communications made by\nformer government officials and employees on behalf of a candidate prior to that\ncandidate\xe2\x80\x99s election and those communications that take place after the election,\nwhen the candidate has become the President-elect or Vice President-elect. When\nthe literal interpretation of a statute would produce an absurd result, the words\nat issue should be given alternative meaning to avoid such a consequence. Green\nv. Bock Laundry Machines Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring).\nSee also South D akota v. Yankton Sioux Tribe, 522 U.S. 329, 346 (1998). In this\ncase, not only do the legislative history and purpose of this statutory amendment\nsupport an application of the word \xe2\x80\x9c candidate\xe2\x80\x9d that is broader in scope than its\nordinary meaning, extending until the person in question assumes office, but they\nalso make clear that a narrower interpretation would yield a bizarre result.\nThe House Report to the ethics amendment explains that:\nThe purpose of the post-employment restrictions for former staff\nis to prevent pecuniary gain by individuals due to a prior relation\xc2\xad\nship within his or her former office. In the case of a leave of\nabsence or resignation to work on a campaign, however, the\n\xe2\x80\x98 \xe2\x80\x98cooling-off \xe2\x80\x99 period should not apply.\nH.R. Rep. No. 104-595, at 9 (1996), reprinted in 1996 U.S.C.C.A.N. 1356, 1364.\nAccordingly, communications or appearances \xe2\x80\x9c made solely on behalf of a can\xc2\xad\ndidate . . . are excepted from the post-employment restrictions.\xe2\x80\x9d Id. Congress\nenacted this exception to ensure that the ethics statute did not have an unintended,\nand wholly irrational, consequence. Without it, a person who worked for a member\nof Congress or the President or Vice President, and then joined that person\xe2\x80\x99s cam\xc2\xad\npaign team, would have committed a criminal offense if he or she communicated\nwith that person or his or her staff within a one year period. As Senator Levin\nexplained:\nWhat we overlooked at the time was the situation where congres\xc2\xad\nsional staff and top executive department officials may leave their\nGovernment positions to work on the reelection campaigns of the\n290\n\n\x0cDefinition o f \xe2\x80\x9c Candidate \xe2\x80\x9d Under 18 U.S.C. \xc2\xa7207(j)(7)\n\npersons for whom they worked while in the Government. For\nexample, the administrative assistant of one of our colleagues may\ntake a leave of absence and work on the reelection campaign for\nthat same Member. If that happens, that administrative assistant\nshould not be barred from contacting the Member or his staff on\nbehalf of the campaign, since the interests of the campaign and\nthe Member are really the same. Such a bar, which was never\nintended, would basically make such employment impossible.\n142 Cong. Rec. 18,869, 18,871 (1996). Senator Cohen, in articulating his support\nof the bill, made it clear that fear of a former government employee taking unfair\nadvantage of his access to his former office was not an issue:\n[L]eaving Government service to work on a campaign doesn\xe2\x80\x99t\ninvolve the kind of abuse the revolving door rules are intended to\naddress, that is, individuals trading on Government information and\naccess for private gain.\nId. at 18,870. Representative Canady further articulated the principle behind the\n\namendment as\none of allowing necessary communications integral to any cam\xc2\xad\npaign-related employment. Therefore, where the intention of the\nformer employee is to participate in the electoral process subject\nto the narrow exception established by the protection of this bill,\nthe revolving door restrictions of title 18 will no longer apply.\nId. at 12,943, 12,945. Senator Levin also emphasized that the amendment would\n\nin no way undermine the general purposes of the ethics statute because:\nthis bill would not permit [a] former staff person to contact his\nor her former office during the 1 year cooling off period on behalf\nof a client for whom he is serving as a lobbyist. The exception\nthis bill makes is only for contacts by former staff on behalf of\nthe campaign organizations of the Member or President-Vice Presi\xc2\xad\ndent for whom the staff person previously worked. This limitation\navoids giving an otherwise reasonable exception an unintended\nconsequence.\nId. at 18,871.\n\nCommunications made by individuals who work solely for a candidate after\nthe election but prior to that candidate being sworn into office are equally as\nunlikely to result in private pecuniary gain for the former government employee\n291\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nand serve the same legitimate purposes as communications made by such individ\xc2\xad\nuals prior to the voting that determines the winner of the election. The purpose\nof the subsection (j) exemption is to permit communications necessary to the cam\xc2\xad\npaign-related responsibilities of the employee. In light of these concerns and poli\xc2\xad\ncies, we can discern no rational basis, under the subsection (j) exemption, for\npermitting a former government official to communicate with his former office\non behalf of a candidate prior to January 5th, but prohibiting that same commu\xc2\xad\nnication after the candidate\xe2\x80\x99s formal election on January 6th. In fact, it would\nseem logical that the principles o f the ethics statute are even less at risk when\nthe communication is made exclusively on behalf of a President-elect, rather than\non behalf of a mere candidate for that office. To construe the statute to create\nsuch a distinction would be to create an absurdity.3\nWe acknowledge that the case of a former executive branch agency official\nor employee who joins a President-elect\xe2\x80\x99s transition team to assist with issues\nrelated to his or her former agency presents a slightly different situation than a\nformer presidential, vice presidential or congressional staff member. In this situa\xc2\xad\ntion, even absent the (j)(7) exemption, the former agency official would be able\nto communicate freely with his or her \xe2\x80\x9c candidate\xe2\x80\x9d and his or her candidate\xe2\x80\x99s\noffice. Instead, the prohibition would apply to his or her communications with\nanother government agency with which the President-elect or Vice President-elect\npresumably has an interest in dealing. Congress may not have had this precise\nsituation in mind when it passed subsection (j)(7). However, the policy behind\nprohibiting a former government official from exercising undue influence on\nbehalf of a private client or otherwise trading on government information or access\nfor private gain, which is the concern expressed by Congress in the legislative\nhistory of the amendment, simply does not apply in this context either.\nIn sum, permitting an employee successfully to carry out his or her transition\nresponsibilities may be even more crucial to the effective operation of our political\nsystem than the need to permit an employee to fulfill his or her campaign respon\xc2\xad\nsibilities. As we have previously acknowledged, the orderly transfer of the execu\xc2\xad\ntive powers \xe2\x80\x9c is one of the m ost important public objectives in a democratic\nsociety.\xe2\x80\x9d 12 Op. O.L.C. at 264. The transition period insures that the candidate\nwill be able to perform effectively the important functions of his or her new office\nas expeditiously as possible. Therefore, to give full effect to the clear congres\xc2\xad\nsional intent behind subsection (j), it is apparent that individuals who otherwise\nmeet the specifications and limitations of \xc2\xa7 207(j)(7)(A) & (B) should be deemed\nto be communicating on behalf o f a \xe2\x80\x9c candidate\xe2\x80\x9d through the point at which that\n\xe2\x80\x9c candidate\xe2\x80\x9d assumes the office to which he or she was elected.4 In other words,\n3 This conclusion is consistent with our discussion o f the purpose of the Act contained in the opinion cited in\nfootnote 2.\n4 C ertainly the same policy concerns do not apply to a candidate who is not elected to the office which he or\nshe seeks Rather, a candidate who is not elected to office would lose his or her status as a candidate at the point\nthe outcom e o f the election was finalized\n\n292\n\n\x0cDefinition o f \xe2\x80\x9cCandidate " Under 7 8 U.S.C. \xc2\xa7207(j)(7)\n\nfor purposes of \xc2\xa7207 (j), a successful candidate should be viewed as seeking\noffice until he or she actually assumes that office. After that point, any commu\xc2\xad\nnications by the former employee on behalf of the office holder will be commu\xc2\xad\nnications on behalf of the \xe2\x80\x9c United States,\xe2\x80\x9d and therefore exempt from the prohibi\xc2\xad\ntions of the Act. See 18 U.S.C. \xc2\xa7 207(c)(1).\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n293\n\n\x0c'


b'January 24, 1979\n\n79-8\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL FOR\nADMINISTRATION, OFFICE OF\nMANAGEMENT AND FINANCE\nFederal Grant and Cooperative Agreement Act of\n1977 (41 U.S.C. \xc2\xa7 501 et seq .)\xe2\x80\x94Application to the\nDepartment of Justice\xe2\x80\x94Drug Enforcement\nAdministration\xe2\x80\x9421 U.S.C. \xc2\xa7 872(a)(2)\n\nThis is in response to your request for our opinion concerning the ap\xc2\xad\nplication o f the Federal Grant and Cooperative Agreement Act o f 1977\n(FGCAA), Public Law No. 95-224, 29 Stat. 3, 41 U .S.C . \xc2\xa7 501 et seq., to\nthe components o f the Department o f Justice. Your request raises two\ngeneral issues: first, the effect o f the Act on the general authority o f the\nDepartment o f Justice to enter into contracts, grants, or cooperative\nagreements, and second, the extent to which the Attorney General has\ndelegated authority derived from the Act and to the com ponents o f the\nDepartment. It then raises the particular question whether the Act and\nDepartment regulations authorize the Drug Enforcement Administration\n(DEA) to enter grant agreements with State and local governments under\n21 U.S.C. \xc2\xa7 873(a).\nWe understand that DEA intends to provide State and local govern\xc2\xad\nments with \xe2\x80\x9c seed m oney\xe2\x80\x9d to establish investigative units that will concen\xc2\xad\ntrate on particular types o f violations. DEA has suggested that it is\nauthorized to provide such assistance as a cooperative arrangement under\n21 U.S.C. \xc2\xa7 873(a)(2) and that \xc2\xa7 7(a) o f the FGCAA permits it to use a\nform grant agreement in doing so. We conclude that DEA lacks authority\nto provide assistance under 21 U.S.C. \xc2\xa7 873(a)(2) by grant, notw ithstand\xc2\xad\ning the FGCAA. We have also concluded, however, that 21 U.S.C.\n\xc2\xa7 872(a)(2) and the FGCAA authorize DEA to fund experimental enforce\xc2\xad\nment projects by State or local agencies through either a grant or a\ncooperative agreement.\nAs a preliminary matter, we note that the FGCAA applies to \xe2\x80\x9c executive\n57\n\n\x0cagencies,\xe2\x80\x9d which it defines as the executive departm ents, independent\nestablishments, and wholly owned Government corporations.\' Thus, the\nAct applies to the Departm ent o f Justice as an entity. With exceptions not\nrelevant here, the functions o f the Department are vested in the Attorney\nGeneral, subject to delegation.2 Therefore, the powers and duties under\nthe Act are conferred upon the Attorney General.\nThe Act declares in effect, that three types o f legal instruments can em\xc2\xad\nbody the relationship between a Federal executive agency and the recipient\no f Federal assistance or a procurem ent contract: the contract, the grant\nagreement, and the cooperative agreem ent.3 Sections 4-6 o f the Act, 41\nU.S.C. \xc2\xa7 503-505, define the type o f relationship between an agency and\nthe recipient in which each instrument will be used. Section 7(a) o f the Act,\n41 U .S.C . \xc2\xa7 506(a), authorizes the agencies to enter into the type o f agree\xc2\xad\nment that is appropriate to the agency\xe2\x80\x99s underlying relationship with the\nrecipient. The text and legislative history o f the Act dem onstrate that it\ndoes not change the substantive authority o f agencies to enter particular\nrelationships with recipients; it merely requires them to use the proper\nlegal instrument in the exercise o f that authority.\nThe Act requires a procurement contract to be used \xe2\x80\x9c whenever the prin\xc2\xad\ncipal purpose o f the instrument is the acquisition, by purchase, lease, or\nbarter, o f property or services for the direct benefit or use o f the Federal\nG overnm ent.\xe2\x80\x9d 4 Assistance, as opposed to procurem ent, requires either a\ngrant agreement or cooperative agreement. In both cases, a relationship\nexists where:\n*\n* * the principal purpose o f the relationship is the transfer of\nmoney, property, services, or anything o f value to the State or\nlocal government or other recipient in order to accomplish a\npublic purpose o f support or stimulation authorized by Federal\nstatute* * *. [Emphasis added.]5\nA grant agreement must be used when \xe2\x80\x9c no substantial involvement\xe2\x80\x9d by\nthe Federal agency in the recipient\xe2\x80\x99s activity is anticipated;6 a cooperative\nagreement must be used when \xe2\x80\x9c substantial involvement\xe2\x80\x9d is anticipated.7\nThe purpose o f these provisions is to provide uniform, Governmentwide criteria for selecting a legal instrument that will reflect the type of\nbasic relationship expected between the Federal Government and nonFederal parties.\' Taken together, they \xe2\x80\x9c provide a basic structure that\n\n1 41 U .S.C . \xc2\xa7 502(4); see 5 U .S.C . \xc2\xa7\xc2\xa7 101-105.\n1 28 U .S.C . \xc2\xa7 509, 510; see also 21 U .S.C . \xc2\xa7 871.\n1 The Act does not apply to direct cash assistance to individuals, subsidies, loans, loan\nguarantees, or insurance. 41 U .S.C . \xc2\xa7 502(5).\n4 41 U .S.C . \xc2\xa7 503.\n1 41 U .S.C . \xc2\xa7 504(1), 505(1).\n\xe2\x80\x98 41 U.S.C. \xc2\xa7 504(2).\n7 41 U .S.C . \xc2\xa7 505(2).\n* S. Rept. 449, 95th C ong., 1st sess., 2, 7 (1977). See also Federal G rant and Cooperative\nAgreements A ct, P ub. L. No. 95-224, \xc2\xa7 2(b)(2); 123 C o n g . R e c . H. 10159-60 (Sept. 27, 1977).\n\n58\n\n\x0cexpresses existing relationships between the Federal Government and nonFederal entities.\xe2\x80\x9d 9\nThe powers conferred by \xc2\xa7 7(a) o f the Act, 41 U.S.C. \xc2\xa7 506(a), must be\nunderstood in this context. Section 7(a) provides:\nNotwithstanding any other provision o f law, each executive\nagency authorized by law to enter into contracts, grant or\ncooperative agreements, or similar arrangements is authorized\nand directed to enter into and use types o f contracts, grant agree\xc2\xad\nments, or cooperative agreements as required by this Act.\nOn its face, the section permits and directs any agency to use the type o f\ninstrument which the preceding sections have declared appropriate to the\ntype o f relationship the agency is entering. As the Senate committee report\non the bill explains, agencies may have previously been statutorily re\xc2\xad\nstricted to a type o f instrument that did not accurately reflect the nature o f\nthe relationship. The authority given by \xc2\xa7 7(a), it continues, \xe2\x80\x9c will provide\nthe executive agencies with needed flexibility in their efforts to use ap\xc2\xad\npropriate legal instruments to reflect the relationships established with\nnon-Federal recipients.\xe2\x80\x9d 10 In other words, \xc2\xa7 7(a) gives the executive agen\xc2\xad\ncies authority to comply with the criteria o f \xc2\xa7\xc2\xa7 4-6.\nSections 4-6, however, do not alter the substantive power o f the agency\nto enter a particular type o f relationship. Instead, they require the use of\ngrant or cooperative agreements only when the agency is \xe2\x80\x9c authorized by\nFederal statute\xe2\x80\x9d to provide support or stim ulation." As the legislative\nhistory repeatedly points out, their purpose is to require the form o f the\nagreement to reflect the substance o f the relationship.\'2 It follows that the\nAct does not confer on the Departm ent o f Justice new authority to pro\xc2\xad\ncure property or services, make grants, or cooperate with non-Federal en\xc2\xad\ntities. Rather, it authorizes and directs the Department to use the correct\nlegal instrument to carry out its authorized functions. Where the Attorney\nGeneral has delegated his authority to procure or to enter cooperative rela\xc2\xad\ntions, it would be consistent with the purpose o f the Act to read into the\ndelegation the power and duty to use the appropriate instrument provided\nby \xc2\xa7 7(a).\nApplying these principles to DEA, it is apparent that \xc2\xa7 7(a) has not\ngiven DEA authority to use grant agreements to implement a program\nunder 21 U.S.C. \xc2\xa7 873(a)(2). The latter statute provides:\nThe Attorney General shall cooperate with local, State, and\nFederal agencies concerning traffic in controlled substances and\nin suppressing the abuse o f controlled substances. To this end, he\nis authorized to \xe2\x80\x94\n* * * * * * *\n\n9 S. Rept. 449, 95th Cong., 1st sess., 10 (1977).\n10 S. Rept. 9, 95th Cong., 1st sess., at 10 (1977).\n" 41 U.S.C. \xc2\xa7\xc2\xa7 504(1), 505(1).\n11 See S. Rept. 449, 95th C o n g ., 1st sess., 2, 7-8, 10 (1977); 123 C o n g . R e c . H .\n10159-60 (Sept. 27, 1977).\n\n59\n\n\x0c(2)\ncooperate in the institution and prosecution o f cases in the courts o f\nthe United States and before the licensing boards and courts o f the several\nStates* * *.\nThe Attorney General\xe2\x80\x99s authority under it has been delegated to the A d\xc2\xad\nm inistrator o f D E A .13 The relationship which this statute authorizes DEA\nto enter is a cooperative one\xe2\x80\x94i.e., mutual involvement and assistance in a\nm atter o f common concern. There is nothing in its legislative history or,\ninsofar as we are aware, in its previous application, that would authorize\nDEA to provide simple financial assistance to state or local law enforce\xc2\xad\nment agencies. Accordingly, the effect o f \xc2\xa7 7(a) is not to permit DEA to\nprovide such assistance through grants, but rather to require it to provide\notherwise permissible assistance in the form o f a cooperative agreement.\nThere is, however, other statutory authority for DEA to make grants to\nState or local law enforcement agencies for limited purposes. Under 21\nU .S.C . \xc2\xa7 872(a)(2) DEA is authorized to conduct research programs\nrelating to controlled substance law enforcement, including \xe2\x80\x9c studies or\nspecial projects designed to compare the deterrent effects o f various en\xc2\xad\nforcement strategies on drug use and abuse.\xe2\x80\x9d 14 U nder 21 U.S.C. \xc2\xa7 872(b),\ncontracts for such research are authorized. The statute contemplates that\nresearch will be performed by persons outside the Federal G overnm ent.15\nState or local law enforcement agencies are logical bodies to conduct a\nspecial project testing new enforcement methods. We are therefore o f the\nopinion that the Act permits DEA to provide them with funds in order to\nconduct a limited test o f a new enforcement strategy. Since the underlying\nauthority to enter a financial relationship with these agencies for enforce\xc2\xad\nment research exists, the Federal G rant and Cooperative Agreement Act\npermits and requires DEA to use the type o f legal instrument that ac\xc2\xad\ncurately reflects the purpose o f the relationship. Depending on the specific\ncircumstances o f the project, this would be either a grant o r cooperative\nagreement.\nM a ry C . L a w to n\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n" 21 U .S.C . \xc2\xa7 871(a); 28 CFR \xc2\xa7\xc2\xa7 0.100(b), 0.101(a).\n14 We note that the Departm ent o f Justice A ppropriation A uthorization Act, \xc2\xa7 2(10), 92\nStat. 3461, authorizes appropriations for research under this statute.\nSee H. Rept. 1444 (Part I), 91st Cong., 2d sess., 24, 51 (1970).\n\n60\n\n\x0c'