b'Authority to Use United States Military Forces in Somalia\nT h e P resid en t, in his constitutional ro le as C om m ander in C h ie f and C h ie f E xecutive, m ight\nreaso n ab ly an d law fully determ ine that it w as justified to u se U nited S tates A rm ed Forces\np erso n n el to p ro tect those engaged in relief w ork in S om alia. His authority exten d ed to\nu sin g U .S . m ilitary personnel to p ro te c t S om alians and other foreign nationals in S om alia.\n\nDecember 4, 1992\nTHE PRESIDENT\nTHE WHITE HOUSE\nMY DEAR MR. PRESIDENT: You have asked for my views as to your\nauthority to commit United States troops to support and secure the humani\xc2\xad\ntarian assistance effort currently underway in Somalia. I am informed that\nthe mission o f those troops will b e to restore the flow of humanitarian relief\nto those areas of Somalia most affected by famine and disease, and to facili\xc2\xad\ntate the safe and orderly deployment of United Nations peacekeeping forces\nin Somalia in the near future. I understand that private United States nation\xc2\xad\nals and military personnel are currently involved in relief operations in Somalia.\nI am further informed that the efforts of the United States and other nations\nand o f private organizations to deliver humanitarian relief to those areas of\nSomalia are being severely hampered by the breakdown of governmental\nauthority in Somalia and, in particular, by armed bands who steal relief com\xc2\xad\nmodities for their own use.\nI conclude that in your constitutional role as Commander in Chief and\nC hief Executive, you may reasonably and lawfully determine that the pro\xc2\xad\ntection o f those engaged in relief work in Somalia, including members of\nthe United States Armed Forces who have been and will be dispatched to\nSomalia to assist in that work, justifies the use o f United States military\npersonnel in this operation. I further conclude that you have authority to use\nthose military personnel to protect Somalians and other foreign nationals in\nSomalia. You have authority to commit troops overseas without specific\nprior Congressional approval \xe2\x80\x9con missions of good will or rescue, or for the\npurpose o f protecting American lives or property or American interests.\xe2\x80\x9d 40\nOp. Att\xe2\x80\x99y Gen. 58, 62 (1941) (Jackson, A.G.). See also 53 Dep\xe2\x80\x99t St. Bull. 20\n(1965) (President Lyndon Johnson ordered the United States military to in\xc2\xad\ntervene in the Dominican Republic \xe2\x80\x9cto preserve the lives of American citizens\nand citizens of a good many other nations.\xe2\x80\x9d). As explained more fully in the\n6\n\n\x0cenclosed opinion of the Office of Legal Counsel, your authority thus extends\nto the protection of the lives of United States citizens and others in Somalia.\nApart from your constitutional authority, I conclude that ample statutory\nauthority exists for the use of the military to engage in the distribution of\nhumanitarian relief in Somalia. E.g., 10 U.S.C. \xc2\xa7 2551.\nWhile not required as a precondition for Presidential action here, I also\nnote that United Nations Security Council Resolution 794 authorizes the\nUnited States and other member nations to use \xe2\x80\x9call necessary means\xe2\x80\x9d to\nestablish a secure environment for humanitarian relief operations in Somalia\nand to provide military forces to that end. You may reasonably and lawfully\nconclude that it is necessary to use United States military personnel to sup\xc2\xad\nport the implementation of Resolution 794 and other Security Council\nresolutions concerning Somalia.\nFinally, I note that the proposed mission accords with the requirements of\ninternational law. United States forces will be acting consistent with Reso\xc2\xad\nlution 794, which has been adopted in accordance with Chapter VII, Article\n42 of the Charter of the United Nations. Implementation of Resolution 794\nwill accord fully with the principle of non-intervention in matters that are\n\xe2\x80\x9cessentially within the domestic jurisdiction\xe2\x80\x9d of member States, inasmuch\nas that principle does not \xe2\x80\x9cprejudice the application of enforcement m ea\xc2\xad\nsures under Chapter VII.\xe2\x80\x9d U.N. Charter art. 2(7). Resolution 794 makes it\nunnecessary to evaluate the proposed mission separately under principles o f\ncustomary international law. I note, however, that given the urgent need for\nhumanitarian assistance to Somalians and the breakdown of governmental au\xc2\xad\nthority in Somalia, the operation appears fully consistent with those principles.\nRespectfully,\nWILLIAM P. BARR\nAttorney General\n\n1\n\n\x0cDecember 4, 1992\nM e m o r a n d u m O p in io n fo r t h e A t t o r n e y G e n e r a l\n\nYou have asked for our opinion whether the President has the legal au\xc2\xad\nthority to commit United States Armed Forces to assist the United Nations\nin ensuring the safe delivery o f food, medicine and other relief to the popu\xc2\xad\nlation in affected regions of Somalia. We understand that the mission of\nthose troops will be to restore as quickly as possible the flow of humanitar\xc2\xad\nian relief to those areas of Somalia most affected by famine and disease, and\nto facilitate the safe and orderly deployment of United Nations peacekeep\xc2\xad\ning forces in Somalia in the near future. We also understand that private\nUnited States nationals are currently involved in relief operations in Somalia\nand United States military personnel are engaged in humanitarian supply\nflights into Somalia. We further understand that the efforts of the United\nStates and other nations and o f private organizations to deliver humanitarian\nrelief to those areas o f Somalia are being severely hampered by the break\xc2\xad\ndown o f governmental authority in Somalia and, in particular, by armed\nbands who steal relief commodities for their own use.1\nIn our opinion, the President\xe2\x80\x99s role under our Constitution as Commander\nin C hief and C hief Executive vests him with the constitutional authority to\norder United States troops abroad to further national interests such as pro\xc2\xad\ntecting the lives of Americans overseas. Accordingly, where, as here, United\nStates government personnel and private citizens are participating in a law\xc2\xad\nful relief effort in a foreign nation, we conclude that the President may\ncom m it United States troops to protect those involved in the relief effort. In\naddition, we believe that long-standing precedent supports the use of the\nArmed Forces to protect Somalians and other foreign nationals in Somalia. We\nalso believe that the President, in determining to commit the Armed Forces to\nthis operation, may lawfully look to the importance to the national interests of\n\' We note at the outset that the deployment of troops to Somalia appears primarily aimed at providing\nhum anitarian assistance, and will only involve combat as an incident to that humanitarian mission.\nT hus, the current situation poses two questions: is there legal authority for United States Armed Forces\nto perform hum anitarian tasks, and if so, may the President authorize those troops to engage in more\npurely m ilitary actions, such as self-defense and the creation of safe corridors for the provision o f aid.\nWe understand from the General Counsel o f the Department of Defense that there is clear statutory\nauthority for the use o f the Armed Forces to support and to perform humanitarian tasks in Somalia.\nSee, e.g., 10 U.S.C. \xc2\xa7 2551; see also 22 U.S.C. \xc2\xa7\xc2\xa7 2292, 2292/. We conclude in this opinion that in\nthese circum stances the President\'s constitutional authority to authorize the troops to engage in various\nrelated m ilitary actions is also clear. We d o not address issues raised by the proposed operation under\nthe War Pow ers Resolution.\n\n\x0cthe United States of upholding the recent United Nations resolutions regarding\nSomalia. Finally, we note that Congress has expressed its tacit approval for\nthe President\xe2\x80\x99s exercise of his constitutional authority in this matter.\nI.\n\nFrom the instructions of President Jefferson\xe2\x80\x99s Administration to Commo\xc2\xad\ndore Richard Dale in 1801 to \xe2\x80\x9cchastise\xe2\x80\x9d Algiers and Tripoli if they continued\nto attack American shipping, to the present, Presidents have taken military\ninitiatives abroad on the basis of their constitutional authority. See Abraham\nD. Sofaer, War, Foreign Affairs and Constitutional Power 209-16 (1976); J.\nTerry Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 88-110 (1971);\nJames Grafton Rogers, World Policing and the Constitution 93-123 (1945);\nMilton Offutt, The Protection o f Citizens Abroad by the Armed Forces o f the\nUnited States (1928). Against the background of this repeated past practice\nunder many Presidents, this Department and this Office have concluded that\nthe President has the power to commit United States troops abroad for the\npurpose of protecting important national interests. See, e.g., Training o f\nBritish Flying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 62 (1941)\n(Jackson, A.G.) (\xe2\x80\x9cthe President\xe2\x80\x99s authority has long been recognized as ex\xc2\xad\ntending to the dispatch of armed forces outside of the United States, either\non missions of good will or rescue, or for the purpose of protecting Ameri\xc2\xad\ncan lives or property or American interests\xe2\x80\x9d). As the Supreme Court noted\nin United States v. Verduqo-Urquidez, 494 U.S. 259, 273 (1990), \xe2\x80\x9c[t]he United\nStates frequently employs Armed Forces outside this country \xe2\x80\x94 over 200\ntimes in our history \xe2\x80\x94 for the protection of American citizens or national\nsecurity.\xe2\x80\x9d2\nAt the core of this power is the President\xe2\x80\x99s authority to take military\naction to protect American citizens, property, and interests from foreign\nthreats. See, e.g.. Presidential Powers Relating to the Situation in Iran, 4A\nOp. O.L.C. 115, 121 (1979) (\xe2\x80\x9cIt is well established that the President has the\nconstitutional power as Chief Executive and Commander-in-Chief to protect\nthe lives and property of Americans abroad.\xe2\x80\x9d); Presidential Power to Use the\nArm ed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185,\n187 (1980) (\xe2\x80\x9cPresidents have repeatedly employed troops abroad in defense\nof American lives and property.\xe2\x80\x9d); see also Memorandum of William H.\nRehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The\nPresident and the War Power: South Vietnam and the Cambodian Sanctuar\xc2\xad\nies at 8 (May 22, 1970) (President as Commander in Chief has authority \xe2\x80\x9cto\n\ncommit military forces of the United States to armed conflict . . . to protect the\nlives of American troops in the field\xe2\x80\x9d). In Durand v. Hollins, 8 F. Cas. 111\n(C.C.S.D.N.Y. 1860) (No. 4186), an American naval officer, under orders from\n2 See Dames <St Moore v. Regan, 453 U.S. 654, 686 (1981) (historical practice provides im portant evi\xc2\xad\ndence o f scope o f constitutional powers).\n\n9\n\n\x0cthe President and the Secretary of the Navy, bombarded Greytown, Nicara\xc2\xad\ngua, in retaliation for the Nicaraguan government\xe2\x80\x99s refusal to make reparations\nfor attacks against United States citizens and property. In a suit brought\nagainst the naval officer, Justice Nelson held that the officer properly took\nthis action, observing that such an attack on American citizens and property\nrequired the sort of swift and effective response that only the Executive\ncould make:\nActs o f lawless violence, or of threatened violence to the citi\xc2\xad\nzen or his property, cannot be anticipated and provided for;\nand the protection, to be effectual or of any avail, may, not\nunfrequently, require the most prompt and decided action.\nId. at 112. Justice Nelson also stated that whether the President had a duty\n\nto act to protect the citizens involved \xe2\x80\x9cwas a public political question . . .\nwhich belonged to the executive to determine.\xe2\x80\x9d Id. See also Youngstown\nSheet <\xc2\xa3 Tube Co. v. Sawyer, 343 U.S. 579, 645 (1952) (Jackson, J., concur\xc2\xad\nring) (\xe2\x80\x9cI should indulge the widest latitude of interpretation to sustain [the\nPresident\xe2\x80\x99s] exclusive function to command the instruments of national force,\nat least when turned against the outside world for the security of our soci\xc2\xad\nety.\xe2\x80\x9d).\nApplying these principles to the present case, we conclude that the Presi\xc2\xad\ndent can reasonably determine that the proposed mission is necessary to\nprotect the American citizens already in Somalia. We understand that these\ninclude private United States citizens engaged in relief operations, and United\nStates military personnel conducting humanitarian supply flights. The United\nNations has determined that existing conditions in Somalia pose a threat to\nthe lives and safety o f these individuals and of non-Americans also engaged\nin efforts to deliver food, medicine and other relief to over two million\nSomalians. See Security Council Resolution No. 794, U.N. SCOR, 47th\nSess., 3145th mtg., U.N.Doc. S\\RES\\794 (1992), reprinted in H.R. Rep. No.\n89, 103d Cong., 1st Sess. 19 app. (1993) (determining that the Somali situa\xc2\xad\ntion \xe2\x80\x9cconstitutes a threat to international peace and security,\xe2\x80\x9d and expressing\nalarm at \xe2\x80\x9creports of violence and threats of violence against personnel par\xc2\xad\nticipating lawfully in impartial humanitarian relief activities\xe2\x80\x9d); see also John\nM. Goshko, U.N. C hief Favors Use o f Force in Somalia, Wash. Post, Dec. 1,\n1992, at A l.\nIt is also essential to consider the safety of the troops to be dispatched as\nrequested by Security Counsel Resolution No. 794. The President may pro\xc2\xad\nvide those troops with sufficient military protection to insure that they are\nable to carry out their humanitarian tasks safely and efficiently. He may\nalso decide to send sufficient numbers of troops so that those who are primarily\nengaged in assisting the United Nations in noncombatant roles are defended by\nothers who perform a protective function. See, e.g., Memorandum of William\n10\n\n\x0cH. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The\nPresident and the War Power: South Vietnam and the Cambodian Sanctuar\xc2\xad\nies at 8 (May 22, 1970).\nNor is the President\xe2\x80\x99s power strictly limited to the protection of American\ncitizens in Somalia. Past military interventions that extended to the protec\xc2\xad\ntion of foreign nationals provide precedent for action to protect endangered\nSomalians and other non-United States citizens. For example, in 1965, Presi\xc2\xad\ndent Lyndon Johnson explained that he had ordered United States military\nintervention in the Dominican Republic to protect both Americans and the\ncitizens of other nations, see An Assessment o f the Situation in the Dom ini\xc2\xad\ncan Republic, 53 Dep\xe2\x80\x99t St. Bull. 19, 20 (1965) (\xe2\x80\x9cto preserve the lives of\nAmerican citizens and citizens o f a good many other nations \xe2\x80\x94 46 to be\nexact, 46 nations\xe2\x80\x9d). During the 1900-01 Boxer Rebellion in China, Presi\xc2\xad\ndent McKinley, without prior congressional authorization, sent about 5,000\nUnited States troops as part of a multi-national contingent to lift the siege of\nthe foreign quarters in Peking after the Chinese government proved unable\nto control rebels. Compilation o f the M essages and Papers o f the Presidents\n1789-1902 at 113, 120 (James D. Richardson, ed. Supp. 1904).3\nThe United States has an additional important national interest arising\nfrom the involvement of the United Nations in the Somalian situation. In a\n1950 opinion supporting President Truman\xe2\x80\x99s decision to support the United\nNations in repelling the invasion of South Korea, the State Department con\xc2\xad\ncluded that \xe2\x80\x9c[t]he continued existence of the United Nations as an effective\ninternational organization is a paramount United States interest.\xe2\x80\x9d Authority\no f the President to Repel the Attack in Korea , 23 Dep\xe2\x80\x99t St. Bull. 173, 177\n(1950). We adopt that conclusion. Here, too, maintaining the credibility of\nUnited Nations Security Council decisions, protecting the security of United\nNations and related relief efforts, and ensuring the effectiveness of United\nNations peacekeeping operations can be considered a vital national interest,\nand will promote the United States\xe2\x80\x99 conception of a \xe2\x80\x9cnew world order.\xe2\x80\x9d See,\ne.g.. President\xe2\x80\x99s Address to the 46th Session of the United Nations General\nAssembly, 27 Weekly Comp. Pres. Doc. 1324, 1327 (1991).\nIn Security Council Resolution No. 794, which was adopted pursuant to\nChapter VII of the United Nations Charter, the Security Council has autho\xc2\xad\nrized the United States and other member States to use \xe2\x80\x9call necessary means\xe2\x80\x9d\nto establish a secure environment for the delivery of essential humanitarian\n\n3 A case of intervention on behalf of a foreign national, one Martin Koszta, was cited approvingly by\nthe Supreme Court in In re Neagle, 135 U.S. 1, 64 (1890), as an example of the legitimate exercise of\nExecutive power \xe2\x80\x9cgrowing out o f the Constitution itself, our international relations, and all the protec\xc2\xad\ntion implied by the nature of the government under the Constitution.\xe2\x80\x9d Id. Although Koszta had ex\xc2\xad\npressed his intention of becoming naturalized, at the time of the events in question he was not an\nAmerican citizen. He was seized by the Austrian government while in Smyrna and confined in an\nAustrian vessel. A United States naval officer demanded K oszta\xe2\x80\x99s surrender, and \xe2\x80\x9cwas com pelled to\ntrain his guns upon the Austrian vessel before his demands were complied with." Id. The Court noted\nthat no Act of Congress sanctioned this armed intervention.\n\n11\n\n\x0caid in Somalia.4 The President is entitled to rely on this resolution, and on\nits finding that the situation in Somalia \xe2\x80\x9cconstitutes a threat to international\npeace and security,\xe2\x80\x9d in making his determination that the interests of the\nUnited States justify providing the military assistance that Security Council\nResolution No. 794 calls for. Moreover, American assistance in giving ef\xc2\xad\nfect to this and other Security Council resolutions pertaining to Somalia\nwould in itself strengthen the prestige, credibility and effectiveness of the\nUnited Nations \xe2\x80\x94 which the President can legitimately find to be a substan\xc2\xad\ntial national foreign policy objective, and which will tend further to guarantee\nthe lives and property of Americans abroad.\nThis conclusion accords with our prior opinions. During the Korean War,\nfor example, we took the position that a Security Council resolution autho\xc2\xad\nrizing the use o f force by member States to protect international peace and\nsecurity could\nfurnish a new ground for a decision by the President to use\ntroops abroad.\nIn the presence of such a resolution the President is bound\nto consider what the interests of the United States require.\nHe will necessarily weigh the nature of the breach of the\npeace which has occurred, what its consequences will be for\nthe United Nations if it goes unchallenged, and what it fore\xc2\xad\nshadows in the way of an ultimate threat to the vital interests\no f the United States. In the light of these and other consider\xc2\xad\nations he will then make the decisions which he, as President,\nm ust make.\nFranklin S. Poliak, Power of the President to Send Troops Abroad, 34-35\n(Apr. 27, 1951).5\n\n4 Id. (\xe2\x80\x9cD ism ayed by the continuation of conditions that im pede the delivery of humanitarian supplies to\ndestinations within Som alia, and in particular reports of looting of relief supplies destined for starving\npeople, attacks on aircraft and ships bringing in humanitarian relief supplies, and attacks on the Pakistani\nU N O SO M [U.N. O peration in Somalia Peacekeeping] [sic] contingent in Mogadishu\xe2\x80\x9d ; \xe2\x80\x9cNoting the offer\nby M em ber States aimed at establishing a secure environment for humanitarian relief operations in So\xc2\xad\nm alia as soon as possible\xe2\x80\x9d ; \xe2\x80\x9cCalls on all Member States which are in a position to do so to provide\nm ilitary forces\xe2\x80\x9d ; \xe2\x80\x9cEndorses the recommendation by the Secretary-General in his letter o f 29 Novem ber\n1992 (SV24868) that action under Chapter VII [authorizing use of force] of the Charter of the United\nN ations should be taken in order to establish a secure environment for humanitarian relief operations in\nSom alia as soon as possible\xe2\x80\x9d).\n3 We do not conclude that a Security Council resolution calling on member States to provide troops to\nassist th e U nited N ations by itself imposes any legal duty on the President to act in accordance with the\nresolution. But, as we explained in our 1951 memorandum, such a resolution can be an important\nfactor on which the President may rely in determ ining whether national interests require such m ilitary\naction.\n\n12\n\n\x0cII.\nFinally, we note that the available evidence strongly suggests that Con\xc2\xad\ngress believes that the President\xe2\x80\x99s use of military force to assist United\nNations relief and peacekeeping efforts in Somalia does not exceed his con\xc2\xad\nstitutional powers. In recent legislation, Congress appears to have recognized\nthe President\xe2\x80\x99s authority to make use of military personnel, should he deem\nit necessary to carry out or protect humanitarian missions in Somalia. Sec\xc2\xad\ntion 3(b)(3) of the Horn of Africa Recovery and Food Security Act, Pub. L.\nNo. 102-274, 106 Stat. 115, 116 (1992), states that \xe2\x80\x9c[i]t is the sense of the\nCongress that the President should . . . ensure, to the maximum extent pos\xc2\xad\nsible and in conjunction with other donors, that emergency humanitarian\nassistance is being made available to those in need.\xe2\x80\x9d Section 4(a)(1) of the\nAct states in part that U.S. policy should be \xe2\x80\x9cto assure noncombatants . . .\nequal and ready access to all food, emergency, and relief assistance,\xe2\x80\x9d and\nsection 4(b)(1) states that pursuant to the United States policy of \xe2\x80\x9cseeking to\nmaximize relief efforts\xe2\x80\x9d the United States should \xe2\x80\x9credouble its commend\xc2\xad\nable efforts to secure safe corridors o f passage for emergency food and relief\nsupplies in affected areas.\xe2\x80\x9d Id. at 117. Moreover, in section 2(3), Congress\nexplicitly found that the actions of the government and armed opposition\ngroups in Somalia \xe2\x80\x9cerode[d] food security\xe2\x80\x9d in that country. Id. at 115.\nThus, Congress appears to have contemplated that the President might\nfind it necessary to make use of military forces to ensure the safe delivery of\nhumanitarian relief in Somalia, and to have assumed in such circumstances\nthat the President possessed constitutional authority to do so.6 See also\nDames & M oore, 453 U.S. at 678-79.\nTIMOTHY E. FLANIG AN\nAssistant Attorney General\nOffice o f Legal Counsel\n\n#As noted above, the quoted provisions of the Act are part o f a \xe2\x80\x9csense o f Congress\xe2\x80\x9d resolution. A\n\xe2\x80\x9csense o f Congress\xe2\x80\x9d resolution does not, of course, give the President authority he does not otherwise\npossess. Nonetheless, we believe that the Congressional views expressed in the quoted portions o f the\nAct are evidence that Congress recognized that the President has authority to use m ilitary force to\naccomplish the goals o f the Act.\n\n13\n\n\x0cOPINIONS\nOF THE\n\nOFFICE OF LEGAL COUNSEL\n\n14\n\n\x0c'


b'Effect of the Alienage Restriction in the Personal\nResponsibility and Work Opportunity Reconciliation\nAct of 1996 on the Provision of Stafford Act Assistance\nin the Federated States of Micronesia and the\nRepublic of the Marshall Islands\nCongress did not intend the alienage restriction set forth in title IV of the Personal Responsibility and\nWork Opportunity Reconciliation Act of 1996 to apply extraterritorially. For this reason, the\nprovision of Stafford Act assistance in the Federated States of Micronesia and the Republic of the\nMarshall Islands by the Federal Emergency Management Agency would not violate the PRWORA.\n\nJanuary 19, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nFEDERAL EMERGENCY MANAGEMENT AGENCY\nIn the Compact of Free Association Act of 1985, Pub. L. No. 99-239, sec. 201,\n\xc2\xa7 221, 99 Stat. 1770, 1800, 1816 (1986) (codified at 48 U.S.C. \xc2\xa7 1901 note)\n(\xe2\x80\x9cCompact Act\xe2\x80\x9d), * the United States agreed to provide disaster relief to persons\nresiding in the Federated States of Micronesia (\xe2\x80\x9cFSM\xe2\x80\x9d) and the Republic of the\nMarshall Islands (\xe2\x80\x9cRMI\xe2\x80\x9d) under the Robert T. Stafford Disaster Relief and\nEmergency Assistance Act, Pub. L. No. 93-288, 88 Stat. 143 (1974) (principally\ncodified as amended at 42 U.S.C. \xc2\xa7\xc2\xa7 5121-5201 (1994)). You have inquired\nwhether the alienage restriction set forth in section 401 of title IV of the Personal\nResponsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.\n104-193, 110 Stat. 2105, 2261 (codified as amended at 8 U.S.C. \xc2\xa7 1611 (Supp. V\n1999)) (\xe2\x80\x9cPRWORA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), bars the provision of disaster relief by the Federal\nEmergency Management Agency (\xe2\x80\x9cFEMA\xe2\x80\x9d) to persons residing in the FSM and\nRMI. We have concluded that the alienage restriction in the PRWORA does not\napply to FEMA\xe2\x80\x99s provision of Stafford Act assistance in the FSM and RMI\nbecause the PRWORA\xe2\x80\x99s alienage restriction does not generally apply extraterritorially.\n\n*\nEditor\xe2\x80\x99s Note: The Compact of Free Association with the Federated States of Micronesia and the\nRepublic of the Marshall Islands (the \xe2\x80\x9cCompact\xe2\x80\x9d) is distinct from the joint resolution in which\nCongress approved the Compact (the \xe2\x80\x9cCompact Act\xe2\x80\x9d). The Compact, with subdivisions of its own, is\nrecorded in section 201 of the Compact Act, 99 Stat. at 1800-35. Thus, the reference in text is to section\n221 of the Compact, as recorded in section 201 of the Compact Act. When this opinion cites the\n\xe2\x80\x9cCompact\xe2\x80\x9d with a section number, it refers to the Compact itself, as recorded in section 201 of the\nCompact Act. For ease of reference, the opinion provides parallel citations to the Statutes at Large, but\nto avoid repetition it does not each time provide a parallel citation to section 201 of the Compact Act or\nto 48 U.S.C. \xc2\xa7 1901 note.\n\n21\n\n227-329 VOL_25_PROOF.pdf 31\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nI. Background\nIn enacting the Stafford Act, Congress intended \xe2\x80\x9cto provide an orderly and\ncontinuing means of assistance by the Federal Government to State and local\ngovernments in carrying out their responsibilities to alleviate the suffering and\ndamage which result from . . . disasters.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 5121(b). When the FSM and\nRMI became independent nations and were no longer Trust Territories of the\nPacific Islands under the control of the United States, the United States and the\nFSM and RMI agreed to a Compact of Free Association (\xe2\x80\x9cCompact\xe2\x80\x9d). That\nCompact establishes a close relationship between the United States and the FSM\nand RMI. Congress passed a joint resolution in 1986 approving the Compact.\nCompact Act, \xc2\xa7 101, 99 Stat. at 1773 (codified at 48 U.S.C. \xc2\xa7 1901). Section\n221(a)(2) of the Compact provides that the United States shall make available to\nthe FSM and RMI the \xe2\x80\x9cservices and related programs of . . . [inter alia] the United\nStates Federal Emergency Management Agency,\xe2\x80\x9d under the terms established in a\nseparate agreement. 99 Stat. at 1816. That agreement provides that Stafford Act\nassistance\nshall be made available to the Marshall Islands or the Federated\nStates of Micronesia in the same manner as assistance is made available to a \xe2\x80\x9cState.\xe2\x80\x9d Solely for the purpose of applying the [Stafford\nAct] pursuant to this Article, the Marshall Islands or the Federated\nStates of Micronesia shall be considered included within the definitions of \xe2\x80\x9cUnited States\xe2\x80\x9d and \xe2\x80\x9cState\xe2\x80\x9d as those terms are defined in 42\nU.S.C. 5122. 1\nFederal Programs and Services Agreement Concluded Pursuant to Article II and\nSection 232 of the Compact of Free Association, art X, \xc2\xa7 3, reprinted in H.R. Doc.\nNo. 98-192, at 231 (1984) (\xe2\x80\x9cProgram and Services Agreement\xe2\x80\x9d). The Section-bySection Analysis for section 221 of the Compact explains that\n[w]hile the [FSM and RMI] will fund the basic functions of government from grant assistance and [local] revenues, performance of certain activities may be beyond the technical capability of the new\ngovernments at the outset of free association. Thus, the United States\nhas agreed in Section 221(a) to continue to provide services of the\nUnited States Weather Service, the United States Federal Emergency\nManagement Agency, the United States Postal Service, the Federal\nAviation Administration and the Civil Aeronautics Board.\n1\nSection 5122(4) of title 42 provides that \xe2\x80\x9c\xe2\x80\x98State\xe2\x80\x99 means any State of the United States, the District\nof Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands,\nor the Trust Territory of the Pacific Islands.\xe2\x80\x9d\n\n22\n\n227-329 VOL_25_PROOF.pdf 32\n\n10/22/12 11:10 AM\n\n\x0cEffect of Alienage Restriction in PRWORA on Stafford Act Assistance\n\nSection-by-Section Analysis of the Compact of Free Association and Joint\nResolution, H.R. Doc. No. 98-192, at 100 (1984). The Compact also states that the\nUnited States shall continue to provide the services and programs referred to in the\nCompact \xe2\x80\x9cunless their modification is provided by mutual agreement or their\ntermination in whole or in part is requested by any recipient Government.\xe2\x80\x9d\nCompact \xc2\xa7 222(b), 99 Stat. at 1817. The terms of the Compact (as amended)\nprovide that \xe2\x80\x9c[e]very citizen of the Marshall Islands or the Federated States of\nMicronesia who is not a resident of the United States shall enjoy the rights and\nremedies under the laws of the United States enjoyed by any non-resident alien.\xe2\x80\x9d 2\nCompact \xc2\xa7 172(a), 99 Stat. at 1810. When Congress approved the Compact in\n1986, it consented to the subsidiary agreements, including article X. Compact Act\n\xc2\xa7 101(a)-(b), 99 Stat. at 1773 (codified at 48 U.S.C. \xc2\xa7 1901(a)-(b)).\nYour office has informed us that there are three Stafford Act programs administered by FEMA that could be subject to the alienage restriction in the PRWORA.\nUnder the Disaster Housing Program, FEMA reimburses individuals for shortterm lodging, helps restore homes to a livable condition, provides rental properties\nfor victims, and makes mortgage or rental payments for individuals or families\nwho, as a result of financial hardship caused by the disaster, face eviction or\nforeclosure. See 42 U.S.C. \xc2\xa7 5174; Federal Emergency Management Agency,\nDisaster Assistance: Section One at 22 (Nov. 1995). Under the Individual and\nFamily Grant program, FEMA makes cash grants to individuals and families for\n\xe2\x80\x9cdisaster-related necessary expenses or serious needs.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 5178(a);\naccord Federal Emergency Management Agency, Disaster Assistance: Section\nOne at 23 (Nov. 1995). Finally, FEMA distributes food in conjunction with the\nDepartment of Agriculture\xe2\x80\x99s Food and Nutrition Service. See Federal Emergency\nManagement Agency, Programs and Activities in the Freely Associated States of\nthe Republic of the Marshall Islands (RMI) and the Federated States of Micronesia (FSM) at 2 (Feb. 14, 2000). The Department of Agriculture provides the\nfunding to purchase food, and FEMA funds distribution of the food, administration\nof the program, and other related costs. See id. 3\n\n2\nIn light of the conclusion we reach here, we need not resolve whether this provision of the Compact would entitle these individuals to benefits as \xe2\x80\x9cqualified aliens\xe2\x80\x9d under 8 U.S.C. \xc2\xa7 1641(b). We do\nnote that the term \xe2\x80\x9cnon-resident alien\xe2\x80\x9d is not a defined term under United States immigration law.\n3\nWe understand that there is a fourth program that, at least as a theoretical matter, could be affected\nby the PRWORA. Under the Stafford Act, the Department of Agriculture oversees the Food Coupons\nand Distribution program, which provides food stamps and surplus commodities to families in need.\nSee 42 U.S.C. \xc2\xa7 5179. In the FSM and RMI, however, there is no food stamp program because the\nprogram \xe2\x80\x9chas never been implemented in those jurisdictions and no retail redemption system exists.\xe2\x80\x9d\nLetter for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, from\nCharles R. Rawls, General Counsel, Department of Agriculture (Sept. 14, 1998). Similarly, there is no\ndistribution of surplus provisions because the Department of Agriculture \xe2\x80\x9chas no ongoing programs in\nthese countries.\xe2\x80\x9d Federal Emergency Management Agency, Programs and Activities in the Freely\nAssociated States of the Republic of the Marshall Islands (RMI) and the Federated States of Microne-\n\n23\n\n227-329 VOL_25_PROOF.pdf 33\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIn 1996 Congress passed the PRWORA. In title IV of the Act, Congress set\nforth its purposes in a section entitled \xe2\x80\x9cStatements of national policy concerning\nwelfare and immigration.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1601. Congress established that\n(1) [s]elf-sufficiency has been a basic principle of United States\nimmigration law since this country\xe2\x80\x99s earliest immigration statutes.\n(2) It continues to be the immigration policy of the United States\nthat\xe2\x80\x94\n(A) aliens within the Nation\xe2\x80\x99s borders not depend on public\nresources to meet their needs, but rather rely on their own capabilities or the resources of their families, their sponsors, and private\norganizations, and\n(B) the availability of public benefits not constitute an incentive\nfor immigration to the United States.\n8 U.S.C. \xc2\xa7 1601(1)-(2) (Supp. V 1999). The remaining statements in section 1601\nare related to these purposes. See, e.g., id. \xc2\xa7 1601(5) (\xe2\x80\x9cIt is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order\nto assure that aliens be self-reliant in accordance with national immigration\npolicy.\xe2\x80\x9d).\nTo give effect to these goals and policies, Congress restricted alien eligibility\nfor federal benefits, providing that \xe2\x80\x9c[n]otwithstanding any other provision of\nlaw . . . an alien who is not a qualified alien . . . is not eligible for any Federal\npublic benefit.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1611(a). In title IV, Congress incorporated the\nImmigration and Nationality Act\xe2\x80\x99s broad definition of an \xe2\x80\x9calien\xe2\x80\x9d as \xe2\x80\x9cany person\nnot a citizen or national of the United States.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1101(a)(3) (1994) (cited\nin 8 U.S.C. \xc2\xa7 1641(a) (Supp. V 1999)). Although \xe2\x80\x9cqualified aliens\xe2\x80\x9d are eligible to\nreceive specified federal public benefits within certain time frames, see 8 U.S.C.\n\xc2\xa7 1612 (Supp. V. 1999), the definition of qualified aliens does not explicitly\ninclude citizens of the FSM and RMI. See 8 U.S.C. \xc2\xa7 1641(b) (qualified aliens\ninclude, for example, legal permanent residents, asylees, refugees); see also supra\nnote 2. Congress broadly defined federal public benefits to include\n(A) any grant, contract, loan, professional license, or commercial\nlicense provided by an agency of the United States or by appropriated funds of the United States; and\n\nsia (FSM) at 2 (Feb. 14, 2000). Because this program has never been implemented in the FSM and\nRMI, we do not address it in this opinion.\n\n24\n\n227-329 VOL_25_PROOF.pdf 34\n\n10/22/12 11:10 AM\n\n\x0cEffect of Alienage Restriction in PRWORA on Stafford Act Assistance\n\n(B) any retirement, welfare, health, disability, public or assisted\nhousing, postsecondary education, food assistance, unemployment\nbenefit, or any similar benefit for which payments or assistance are\nprovided to an individual, household, or family eligibility unit by an\nagency of the United States or by appropriated funds of the United\nStates.\n8 U.S.C. \xc2\xa7 1611(c)(1)(A)-(B).\nWith this legal framework in mind, we turn in more detail to the applicability of\nthe alienage restriction to FEMA\xe2\x80\x99s provision of Stafford Act assistance in the FSM\nand RMI.\nII. Analysis\nTo determine whether the alienage restriction in title IV of the PRWORA is\napplicable to the provision of Stafford Act assistance in the FSM and RMI, the\ncritical question to answer is whether the PRWORA\xe2\x80\x99s alienage restriction applies\noutside of the United States. 4 To answer this question, we examine both the text\nand the legislative history of title IV. 5 We conclude that the alienage restriction in\ntitle IV, in general, operates only within the United States. Because the FSM and\n\n4\nIt could be argued that the FSM and RMI are actually part of the United States for purposes of\nStafford Act assistance and therefore the extraterritoriality question is not presented. The Program and\nServices Agreement provides that \xe2\x80\x9c[s]olely for the purpose of applying the [Stafford Act] pursuant to\nthis Article, the Marshall Islands or the Federated States of Micronesia shall be considered included\nwithin the definitions of \xe2\x80\x98United States\xe2\x80\x99 and \xe2\x80\x98State\xe2\x80\x99 as those terms are defined in 42 U.S.C. 5122.\xe2\x80\x9d\nProgram and Services Agreement at 231. We found no support for reading this provision of the\nProgram and Services Agreement to obviate the question of extraterritoriality. The best reading of this\nprovision is that it is intended to reflect the parties\xe2\x80\x99 intent that the FSM and RMI should receive\nStafford Act assistance on the same terms as states, not that the FSM and RMI are part of the United\nStates for purposes of domestic laws.\n5\nWe also have considered whether the presumption against extraterritoriality would apply. See\nEEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). We believe it would apply with less force\nthan in other contexts because the presumption, at least in part, is intended \xe2\x80\x9cto protect against\nunintended clashes between our laws and those of other nations which could result in international\ndiscord.\xe2\x80\x9d Foley Bros., Inc. v. Filardo, 336 U.S. 281, 248 (1949). It is unlikely that the extraterritorial\napplication of the alienage restriction would conflict with the law of another country because the\nrestriction applies only to eligibility for benefits under United States law. Nonetheless, the presumption\nis not wholly irrelevant because the statutory purposes of title IV\xe2\x80\x94eliminating an incentive for\nimmigration and discouraging aliens within the United States from relying on federal benefits\xe2\x80\x94would\nnot be served by the extraterritorial application of the alienage restriction. These purposes are not\nexportable, as they concern circumstances in the United States. See Smith v. United States, 507 U.S.\n197, 204 n.5 (1993) (\xe2\x80\x9cthe presumption is rooted in a number of considerations, not the least of which is\nthe common sense notion that Congress generally legislates with domestic concerns in mind\xe2\x80\x9d).\nUltimately, however, the question of extraterritoriality is one of statutory construction and, for the\nreasons we discuss below, we believe Congress did not intend to apply the alienage restriction\nextraterritorially.\n\n25\n\n227-329 VOL_25_PROOF.pdf 35\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nRMI are not within the United States, the PRWORA\xe2\x80\x99s restrictions are not\napplicable in these countries.\nTitle IV addresses the domestic issues of \xe2\x80\x9cwelfare and immigration.\xe2\x80\x9d See\n8 U.S.C. \xc2\xa7 1601. In the introductory section, entitled \xe2\x80\x9cStatements of national\npolicy concerning welfare and immigration,\xe2\x80\x9d Congress set forth the statutory\npurposes for title IV. These purposes include ensuring that \xe2\x80\x9caliens within the\nNation\xe2\x80\x99s borders not depend on public resources to meet their needs,\xe2\x80\x9d and that\n\xe2\x80\x9cthe availability of public benefits not constitute an incentive for immigration to\nthe United States,\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1601(2)(A), (B) (emphases added).\nThis explicit concern with aliens already in the United States and aliens who\nmight immigrate to the United States is also reflected in the legislative history of\ntitle IV. In reference to the alienage restriction, the relevant House, Senate, and\nconference reports discuss only aliens in the United States and potential immigrants. See H.R. Rep. No. 104-651, at 1442, 1443 (1996) (\xe2\x80\x9cIt is the intent of the\n[House] Committee [on the Budget] that individuals who are illegally present in\nthe U.S. or here for a temporary purpose such as to attend school should not\nreceive public welfare benefits.\xe2\x80\x9d) (emphasis added); H.R. Rep. No. 104-430, at\n463 (1995) (Conf. Rep.) (determining that \xe2\x80\x9c[a]ny individual who is not lawfully\npresent in the U.S. is ineligible for any Federal benefit\xe2\x80\x9d other than specified\nnarrow exceptions) (emphasis added); Staff of S. Comm. on the Budget, 104th\nCong., Personal Responsibility, Work Opportunity, and Medicaid Restructuring\nAct of 1996, at 215, 229 (Comm. Print 1995) (\xe2\x80\x9cIt is the intent of the [Senate]\nCommittee [on the Budget] that individuals who are illegally present in the U.S. or\nhere for a temporary purpose such as to attend school should not receive public\nwelfare benefits\xe2\x80\x9d; limiting eligibility \xe2\x80\x9cfor public benefits will reduce the incentive\nfor aliens to illegally enter and remain in the U.S.\xe2\x80\x9d) (emphases added). Numerous\nstatements by members of Congress reflect concern with the receipt of federal\nbenefits by aliens inside the United States. See, e.g., 142 Cong. Rec. 17,605 (1996)\n(statement of Rep. Lofgren) (expressing concern about long-term legal immigrants\nin United States not receiving nursing home coverage); id. at 17,606 (statement of\nRep. Torres) (expressing concern about ineligibility of long-time legal immigrants\nin United States for benefits); id. at 17,609 (statement of Rep. Ensign) (stating that\nwelfare benefits should be reserved for United States citizens; immigrants on\nwelfare should be deported); id. at 17,923 (statement of Sen. Moynihan) (noting\nthat Act would cut off income for severely disabled legal immigrants in this\ncountry); id. at 17,941 (statement of Sen. D\xe2\x80\x99Amato) (\xe2\x80\x9cThere are those people\nwho . . . sign up to bring elderly people in[to the United States] and say they are\ngoing to be responsible for them, and [then] they put them right on welfare\xe2\x80\x9d). We\nare aware of no statements referring to the receipt of federal benefits by aliens\nabroad.\n\n26\n\n227-329 VOL_25_PROOF.pdf 36\n\n10/22/12 11:10 AM\n\n\x0cEffect of Alienage Restriction in PRWORA on Stafford Act Assistance\n\nThus, the stated purposes and the legislative history of title IV point firmly to\nthe conclusion that Congress did not intend the alienage restriction to apply\nextraterritorially.\nA counterargument could be made based on two provisions of the PRWORA,\nsee 8 U.S.C. \xc2\xa7\xc2\xa7 1611(b)(2), 1643(c) (Supp. V 1999), and three subsequent\namendments, see id. \xc2\xa7\xc2\xa7 1611(b)(3), 1611(c)(2)(C), 1643(b). Under this argument,\nthese five provisions protect the receipt of benefits extraterritorially, and thereby\nsuggest that, as a general matter, the alienage restriction does apply extraterritorially because if it did not, it would have been unnecessary for Congress to carve out\nthe exceptions. A close examination of these provisions, however, undermines the\nargument that the provisions reflect the view that the PRWORA applies extraterritorially.\nSection 1643(c), one of the two relevant provisions in the statute as originally\npassed, provides that the alienage restriction \xe2\x80\x9cdoes not apply to any Federal, State,\nor local government program, assistance, or benefits provided to an alien under\nany program of foreign assistance as determined by the Secretary of State in\nconsultation with the Attorney General.\xe2\x80\x9d If \xe2\x80\x9cforeign assistance\xe2\x80\x9d refers to assistance given to non-U.S. citizens in foreign countries, then arguably this provision\nsuggests that Congress intended the alienage restriction to apply to the receipt of\nfederal public benefits abroad other than approved programs of foreign assistance.\nYet, the phrase \xe2\x80\x9cforeign assistance\xe2\x80\x9d in section 1643(c) might, alternatively, be\nunderstood to refer only to such assistance actually provided in the United States.\nIn our view, section 1643(c) is best read as limited to these programs.\nFirst, it is important to note that certain \xe2\x80\x9cforeign assistance\xe2\x80\x9d is provided within\nthe United States. For example, under section 605 of the Foreign Relations\nAuthorization Act, Fiscal Years 1986 and 1987, Pub. L. No. 99-93, 99 Stat. 405,\n440 (codified at 22 U.S.C. \xc2\xa7 4704 (1994)), the federal government administers and\nfunds scholarship programs that permit students in developing countries to study\nin the United States. 6 The text of section 1643(c), moreover, appears to contemplate that foreign assistance will encompass assistance provided in the United\nStates because Congress included state and local government programs of foreign\nassistance in section 1643(c). It seems unlikely that Congress sought to regulate\nthe provision of overseas assistance by state and local governments. Indeed,\nbecause the provision of assistance beyond our borders is generally the province of\nthe federal government, inclusion of state and local governments in this provision\nsuggests that Congress contemplated that it would, at a minimum, have domestic\napplication.\n\n6\nWe do not decide whether this or other similar programs of foreign aid constitute federal benefits\nwithin the meaning of the PRWORA. We merely note that certain foreign aid is provided within the\nUnited States.\n\n27\n\n227-329 VOL_25_PROOF.pdf 37\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nHaving established that section 1643(c) could encompass foreign assistance\nboth abroad and in the United States, we must determine whether it encompasses\nonly assistance in the United States. An analysis of the text and the legislative\nhistory of section 1643(c) makes clear that the better reading of the provision is\nthat it refers only to foreign assistance provided within the United States.\nSection 1643(c) requires a determination \xe2\x80\x9cby the Secretary of State in consultation with the Attorney General\xe2\x80\x9d (emphasis added). If section 1643(c) were\nintended to cover the provision of foreign assistance abroad, it seems unlikely that\nCongress would have seen an appropriate role for the Attorney General in\ndetermining whether to continue aid to a foreign country. Providing assistance\nabroad is generally the bailiwick of the Secretary of State. See Exec. Order No.\n12163, 3 C.F.R. \xc2\xa7 435 (1980) (generally delegating to the Secretary of State\n\xe2\x80\x9cfunctions conferred upon the President by . . . the Foreign Assistance Act of\n1961\xe2\x80\x9d); see also, e.g., 22 U.S.C. \xc2\xa7 2151(b) (\xe2\x80\x9cUnder the policy guidance of the\nSecretary of State, the Director of the United States International Development\nCooperation Agency should have the responsibility for coordinating all United\nStates development-related activities.\xe2\x80\x9d). Immigration, in contrast, is generally the\nbailiwick of the Attorney General. See Reorganization Plan No. V of 1940,\n5 U.S.C. app. 1, \xc2\xa7 1 (\xe2\x80\x9cThe Immigration and Naturalization Service of the Department of Labor . . . and its functions are transferred to the Department of Justice\nand shall be administered under the direction and supervision of the Attorney\nGeneral. . . . In the event of disagreement between the head of any department or\nagency and the Attorney General concerning the interpretation or application of\nany law pertaining to immigration, naturalization, or nationality, final determination shall be made by the Attorney General.\xe2\x80\x9d); see also, e.g., 8 U.S.C. \xc2\xa7 1103(a)(1)\n(Supp. V 1999) (\xe2\x80\x9cThe Attorney General shall be charged with the administration\nand enforcement of the [Immigration and Nationality Act] and all other laws\nrelating to the immigration and naturalization of aliens, except insofar as this\nchapter or such laws relate to the powers, functions, and duties conferred upon the\nPresident, the Secretary of State, the officers of the Department of State, or\ndiplomatic or consular officers.\xe2\x80\x9d). If section 1643(c) refers only to assistance\nprovided within the United States, the role of the Attorney General makes sense:\nshe could help the Secretary of State determine whether a particular program\nwould serve or hinder the immigration policies set forth in title IV.\nAdditionally, the legislative history of section 1643(c) simply does not support\nthe conclusion that Congress was referring to the provision of foreign aid outside\nof the United States. If such aid was the focus of Congress\xe2\x80\x99s attention, surely\nCongress would have debated the merits of terminating, subject to reinstatement\nby the Secretary of State, all foreign assistance that would be considered a federal\npublic benefit. Instead, there is simply a statement in the Conference Report that\n\xe2\x80\x9c[t]his title does not address alien eligibility for . . . any program of foreign\nassistance.\xe2\x80\x9d H.R. Rep. No. 104-725, at 391 (1996). The precise meaning of this\n\n28\n\n227-329 VOL_25_PROOF.pdf 38\n\n10/22/12 11:10 AM\n\n\x0cEffect of Alienage Restriction in PRWORA on Stafford Act Assistance\n\nlegislative history is unclear because the text of section 1643(c) does address alien\neligibility for a program of foreign assistance. The statement in the Report would\nsuggest that Congress was referring only to alien eligibility for foreign assistance\nabroad and not for foreign assistance within the United States. In this way, if the\nalienage restriction does not apply extraterritorially, the Report correctly describes\nsection 1643(c): the provision does not address alien eligibility for foreign\nassistance abroad.\nFinally, the reading advanced here is most consistent with the purposes of\ntitle IV. Furnishing foreign assistance abroad is unlikely to undermine selfsufficiency in the United States or to create an incentive to immigrate. For all these\nreasons, we believe section 1643(c) does not refer to the provision of foreign\nassistance abroad and therefore the provision does not reflect a congressional\nintent to legislate extraterritorially.\nThe second provision in the PRWORA as originally enacted that might be read\nto suggest extraterritorial effect is found in 8 U.S.C. \xc2\xa7 1611(b)(2). In this subsection, Congress specified that the alienage restriction should not trump an international agreement or the statutory provisions governing payment of Old Age,\nSurvivors and Disability Insurance (\xe2\x80\x9cOASDI\xe2\x80\x9d) benefits to aliens abroad. Pursuant\nto the OASDI program, the President may enter into an international agreement\nwith a foreign country to establish a system for determining an individual\xe2\x80\x99s\nentitlement to, and the amount of, OASDI benefits based on the time the individual spent in the United States and the other country. See 42 U.S.C. \xc2\xa7 433(a) (1994).\nAdditionally, an alien abroad is eligible for OASDI benefits, subject to certain\nrestrictions set forth in 42 U.S.C. \xc2\xa7 402(t) (1994) (for example, non-U.S. citizens\nresiding outside of the United States for longer than six months are ineligible for\nbenefits). In title IV, Congress specified the interaction between the alienage\nrestriction and the OASDI program, providing that the alienage restriction \xe2\x80\x9cshall\nnot apply . . . to any benefit if nonpayment of such benefit would contravene an\ninternational agreement described in [42 U.S.C. \xc2\xa7 433], [or] to any benefit if\nnonpayment would be contrary to . . . [42 U.S.C. \xc2\xa7 402(t)].\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1611(b)(2). This provision may refer in some respects to the provision of federal\nbenefits abroad, and thus would seem to contemplate some extraterritorial\napplication of the alienage restriction. Nonetheless, it appears that the provision is\nprincipally intended to address benefits that are, at least in large part, earned\nwithin the United States. And thus, without clarification by Congress, these\nbenefits might have fallen within the ambit of the PRWORA because the potential\nto earn such benefits could create an incentive for immigration to the United\nStates. In this light, it seems most reasonable to understand section 1611(b)(2) as a\nclarification that aliens should continue to receive the benefits as specified in\ninternational agreements and 42 U.S.C. \xc2\xa7 402(t). Congress may have done so, at\nleast in part, to ensure that it was not putting the United States in breach of an\ninternational agreement. In any event, because this is the sole provision in the\n\n29\n\n227-329 VOL_25_PROOF.pdf 39\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\noriginal act\xe2\x80\x94an act with an exclusively domestic focus\xe2\x80\x94that clearly refers to the\nprovision of federal benefits outside of the United States, it is insufficient, in our\nview, to outweigh the substantial evidence in the original act indicating that the\nalienage restriction does not apply extraterritorially.\nAfter the 104th Congress enacted the PRWORA in 1996, the 105th Congress\nadded three provisions to title IV that refer to the receipt of federal benefits\nabroad. In each case, however, Congress specified that the provision was simply a\n\xe2\x80\x9cclarification\xe2\x80\x9d that the alienage restriction does not apply to the receipt of federal\nbenefits abroad. These amendments were not a \xe2\x80\x9ccarve out\xe2\x80\x9d to the extraterritorial\napplication of the alienage restriction, but, rather, are best understood to have\nremoved any doubt that may otherwise have existed regarding the inapplicability\nof the Act to the programs at issue. The first two amendments were adopted in\n1997, when, as part of the Balanced Budget Act of 1997, Congress added two\nadditional exceptions to the alienage restriction in title IV. See Pub. L. No. 105-33,\n\xc2\xa7\xc2\xa7 5561, 5574, 111 Stat. 251, 638, 642 (codified at 8 U.S.C. \xc2\xa7 1611(b)(4); 7\n8 U.S.C. \xc2\xa7 1643(b) 8). The House Report accompanying section 1611(b)(4) states\nthat \xe2\x80\x9c[t]h[is] provision[] clarif[ies] that, despite general restrictions on Federal\nbenefits for \xe2\x80\x98non-qualified aliens,\xe2\x80\x99 certain benefits\xe2\x80\x94specifically . . . Railroad\nRetirement and Unemployment Insurance\xe2\x80\x94are to remain available to those who\nearned them through work.\xe2\x80\x9d H.R. Rep. No. 105-78, at 94 (1997) (emphasis added).\nSimilarly, in the House Report, the only report that mentions the exception in\nsection 1643(b), the Committee on Ways and Means explained that\n[t]his provision clarifies that in administering all provisions of Title\nIV, and especially Sections 401 and 411 relating to benefits for nonqualified aliens, restrictions on public benefits do not apply to earned\nbenefits from work by noncitizens outside the U.S. or by noncitizens\nwho have since left this country and are collecting veteran, pension\nor other benefits based on their prior work in the U.S.\nH.R. Rep. No. 105-78, at 101 (emphasis added).\n\n7\n\xe2\x80\x9c[The alienage restriction] shall not apply to any benefit payable under the Railroad Retirement\nAct of 1974 [45 U.S.C. \xc2\xa7\xc2\xa7 231 et seq.] or the Railroad Unemployment Insurance Act [45 U.S.C. \xc2\xa7\xc2\xa7 351\net seq.] to an alien who is lawfully present in the United States as determined by the Attorney General\nor to an alien residing outside of the United States.\xe2\x80\x9d\n8\n\xe2\x80\x9cNotwithstanding any other provision of this title, the limitations on eligibility for benefits under\nthis title shall not apply to eligibility for benefits of aliens who are not residing, or present, in the\nUnited States with respect to\xe2\x80\x94\n\n\xe2\x80\x9c(1) wages, pensions, annuities, and other earned payments to which an alien is entitled resulting from employment by, or on behalf of, a Federal, State, or local government agency . . . ; or\n\xe2\x80\x9c(2) benefits under laws administered by the Secretary of Veterans Affairs.\xe2\x80\x9d\n\n30\n\n227-329 VOL_25_PROOF.pdf 40\n\n10/22/12 11:10 AM\n\n\x0cEffect of Alienage Restriction in PRWORA on Stafford Act Assistance\n\nThe third post-PRWORA change was adopted in 1998, when Congress again\namended title IV. This time Congress stated even more explicitly its understanding\nthat the original Act did not apply extraterritorially and that it was not attempting\nto alter the solely domestic application of the restriction. In the Noncitizen Benefit\nClarification and Other Technical Amendments Act of 1998, Congress determined\nthat the limitation on aliens receiving professional licenses should not apply to\n\xe2\x80\x9cthe issuance of a professional license to, or the renewal of a professional license\nby, a foreign national not physically present in the United States.\xe2\x80\x9d Pub. L. No.\n105-306, \xc2\xa7 5(a)(3), 112 Stat. 2926, 2927 (codified at 8 U.S.C. \xc2\xa7 1611(c)(2)(C))\n(emphasis added). 9 The legislative history of this amendment indicates that\nCongress understood the PRWORA\xe2\x80\x99s alienage restriction as applying only\ndomestically. The House Report states that\n[t]his provision should not be taken to alter the original intent of\nCongress that the provisions of the 1996 welfare reform law apply\nonly to citizens and non-citizens physically present in the United\nStates. Despite this intent, several professional societies have complained that States are misapplying the 1996 law by restricting access\nby foreign nationals to professional licenses in the United States.\nThus this provision is designed to clear up any confusion on the part\nof States, without altering the general intent of the welfare reform\nlaw and its application solely to individuals physically present in the\nUnited States.\nH.R. Rep. No. 105-735, pt. 1, at 11 (1998) (emphasis added). This statement\nmakes clear that the 1998 amendment should not be read to create an exception to\nan otherwise extraterritorial application of the alienage restriction.\nThe fact that a subsequent Congress added three provisions referring to federal\nbenefits abroad does not alter our conclusion that the alienage restriction does not\napply extraterritorially because Congress noted, when enacting each amendment,\nthat the amendment was simply a clarification that the restriction does not apply\noutside of the United States.\n\n9\nIn 1997 Congress amended section 1611(c)(2)(A), clarifying that citizens of the FSM and RMI\nworking in the United States on a contract, or who need professional or commercial licenses, are not\nsubject to the alienage restriction. See Pub. L. No. 105-33, \xc2\xa7 5565, 111 Stat. at 639 (codified at 8\nU.S.C. \xc2\xa7 1611(c)(2)(A)). This amendment does not bear on the question of extraterritoriality because\nthe amendment addresses the applicability of the alienage restriction in the United States, and not in the\nFSM or the RMI. See H.R. Rep. No. 105-78, at 97 (1997) (\xe2\x80\x9cthis provision clarifies that, in keeping with\nthe[] compacts, residents of the freely associated states may enter the U.S. and pursue work by\nqualifying for contracts and professional and commercial licenses that are otherwise restricted to \xe2\x80\x98nonqualified aliens.\xe2\x80\x99\xe2\x80\x9d).\n\n31\n\n227-329 VOL_25_PROOF.pdf 41\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIII. Conclusion\nIn sum, we conclude that Congress did not intend the alienage restriction in\ntitle IV of the PRWORA to apply extraterritorially. 10 For this reason, FEMA\xe2\x80\x99s\nprovision of Stafford Act assistance in the FSM and RMI would not violate the\nPRWORA.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice of Legal Counsel\n\n10\nTo the extent any uncertainty endures with respect to our determination that the alienage\nrestriction does not apply extraterritorially, we note that this could be resolved by the Secretary of State\ndetermining that Stafford Act assistance in the FSM and RMI is a program of foreign assistance\npursuant to 8 U.S.C. \xc2\xa7 1643(c). Nonetheless, we believe the better reading of the PRWORA is that the\nalienage restriction does not apply extraterritorially.\n\n32\n\n227-329 VOL_25_PROOF.pdf 42\n\n10/22/12 11:10 AM\n\n\x0c'


b"Applicability of the Antideficiency Act Upon a\nLapse in an Agency\xe2\x80\x99s Appropriation\nIf, after the expiration o f an agency\xe2\x80\x99s appropriation, C ongress has not enacted an appro\xc2\xad\npriation for the im m ediately subsequent period, the agency may obligate no further\nfunds except as necessary to bring about the orderly term ination o f its functions, and\nthe obligation or expenditure o f funds for any purpose not otherw ise authorized by law\nw ould be a violation o f the A ntideficiency Act.\nT he manifest purpose o f the A ntideficiency A ct is to insure that C ongress will determ ine\nfor w hat purpose the governm ent\xe2\x80\x99s m oney is to be spent and how m uch for each\npurpose.\nBecause no statute generally perm its federal agencies to incur obligations w ithout appro\xc2\xad\npriations for the pay o f em ployees, agencies are not, in general, authorized to employ\nthe services o f their em ployees upon a lapse in appropriations.\n\nApril 25, 1980\nT\n\nhe\n\nP\n\nr e s id e n t\n\nM y D e a r M r . P r e s i d e n t : Y o u have requested my opinion whether an\nagency can lawfully permit its employees to continue work after the\nexpiration of the agency\xe2\x80\x99s appropriation for the prior fiscal year and\nprior to any appropriation for the current fiscal year. The Comptroller\nGeneral, in a March 3, 1980, opinion, concluded that, under the socalled Antideficiency Act, 31 U.S.C. \xc2\xa7 665(a), any supervisory officer\nor employee, including the head of an agency, who directs or permits\nagency employees to work during any period for which Congress has\nnot enacted an appropriation for the pay of those employees, violates\nthe Antideficiency Act. Notwithstanding that conclusion, the Comp\xc2\xad\ntroller General also took the position that Congress, in enacting the\nAntideficiency Act, did not intend federal agencies to be closed during\nperiods o f lapsed appropriations. In my view, these conclusions are\ninconsistent. It is my opinion that, during periods of \xe2\x80\x9clapsed appropria\xc2\xad\ntions,\xe2\x80\x9d no funds may be expended except as necessary to bring about\nthe orderly termination of an agency\xe2\x80\x99s functions, and that the obligation\nor expenditure of funds for any purpose not otherwise authorized by\nlaw would be a violation of the Antideficiency Act.\nSection 665(a) of Title 31 forbids any officer or employee of the\nUnited States to:\n\nInvolve the Government in any contract or other obliga\xc2\xad\ntion, for the payment of money for any purpose, in\n16\n\n\x0cadvance of appropriations made for such purpose, unless\nsuch contract or obligation is authorized by law.\nBecause no statute permits federal agencies to incur obligations to pay\nemployees without an appropriation for that purpose, the \xe2\x80\x9cauthorized\nby law\xe2\x80\x9d exception to the otherwise blanket prohibition of \xc2\xa7 665(a)\nwould not apply to such obligations.1 On its face, the plain and unam\xc2\xad\nbiguous language of the Antideficiency Act prohibits an agency from\nincurring pay obligations once its authority to expend appropriations\nlapses.\nThe legislative history of the Antideficiency Act is fully consistent\nwith its language. Since Congress, in 1870, first enacted a statutory\nprohibition against agencies incurring obligations in excess of appropria\xc2\xad\ntions, it has amended the Antideficiency Act seven times.2 On each\noccasion, it has left the original prohibition untouched or reenacted the\nprohibition in substantially the same language. With each amendment,\nCongress has tried more effectively to prohibit deficiency spending by\nrequiring, and then requiring more stringently, that agencies apportion\ntheir spending throughout the fiscal year. Significantly, although Con\xc2\xad\ngress, from 1905 to 1950, permitted agency heads to waive their agen\xc2\xad\ncies\xe2\x80\x99 apportionments administratively, Congress never permitted an\nadministrative waiver of the prohibition against incurring obligations in\nexcess or advance of appropriations. Nothing in the debates concerning\nany of the amendments to or reenactments of the original prohibition\nhas ever suggested an implicit exception to its terms.3\nThe apparent mandate of the Antideficiency Act notwithstanding, at\nleast some federal agencies, on seven occasions during the last 30 years,\nhave faced a period of lapsed appropriations. Three such lapses oc\xc2\xad\ncurred in 1952, 1954, and 1956.4 On two of these occasions, Congress\nsubsequently enacted provisions ratifying interim obligations incurred\nduring the lapse.5 However, the legislative history of these provisions\n\xe2\x80\x99 A n ex a m p le o f a s ta tu te th a t w o u ld p erm it th e in c u rrin g o f o b lig a tio n s in ex cess o f a p p ro p ria tio n s\nis 41 U .S .C . \xc2\xa7 11, p e rm ittin g s u c h c o n tra c ts fo r \xe2\x80\x9c c lo th in g , su b sisten ce , fo ra g e , fuel, q u a rte rs, tra n s p o r \xc2\xad\nta tio n , o r m edical a n d ho sp ital supplies*\xe2\x80\x99 fo r th e A rm e d F o rc e s . S ee 15 O p . A tt'y G e n . 209. S ee also 25\nU .S .C \xc2\xa7 9 9 an d 31 U .S .C \xc2\xa7 6 6 8 .\n2 A c t o f M a rc h 3, 1905, c h . 1484, \xc2\xa7 4 , 33 S la t. 1257; A c t o f F eb. 27, 1906, c h . 510, \xc2\xa7 3, 34 S ta t. 48;\nA c t o f S ept. 6, 1950, ch . 896, \xc2\xa7 1211, 64 S ta t. 765; P ub. L. 8 5 -170, \xc2\xa7 1401, 71 S tat. 4 4 0 (1957); P u b . L.\n9 3 -1 9 8 , \xc2\xa7 4 2 1 , 87 S tat. 789 (1973); P ub. L. 9 3 -3 4 4 , \xc2\xa7 1002, 88 S ta t. 332 (1974); P u b . L . 9 3 -6 1 8 ,\n\xc2\xa7 175(a)(2), 88 S tat. 2011 (1975).\n3 T h e p ro h ib itio n ag ain st in c u rrin g o b lig a tio n s in ex cess o f a p p ro p ria tio n s w as e n a c te d in 1870,\na m e n d e d slig h tly in 1905 a n d 1906, an d re e n a c te d in its m o d e rn v e rsio n in 1950. T h e re le v a n t\nle g islativ e d e b a te s o c c u r at C o n g . G lo b e , 41st C o n g ., 2d Sess. 1553, 3331 (1870); 39 C o n g . R ec . 3 6 8 7 692, 3 7 80-783 (1905); 40 C o n g . R ec. 1272-298, 1623-624 (1906); 96 C o n g . R ec. 6 7 2 5 -7 3 1 , 6 8 3 5 -8 3 7 ,\n1 1 3 6 9 -3 70(1950).\n4 In 1954 a n d 1956, C o n g re s s e n a c te d te m p o ra ry a p p ro p ria tio n s m e asu res la te r th a n J u ly 1, th e start\no f fiscal y ea rs 1955 a n d 1957. A c t o f J u ly 6, 1954, c h . 460, 68 S tat. 448; A c t o f J u ly 3. 1956, c h . 516,\n70 S tat. 496. In 1952, C o n g re s s e n a c te d , tw o w e e k s late, su p p lem en ta l a p p ro p ria tio n s fo r fiscal y ea r\n1953 w ith o u t h a v in g p re v io u sly e n a c te d a te m p o ra ry a p p ro p ria tio n s m e asu re. A c t o f J u ly 15, 1952, ch.\n758, 66 S tat. 637.\n5 A c t o f J u ly 15, 1952, c h . 758, \xc2\xa7 1414, 66 S ta t. 661; A c t o f A u g . 26, 1954, c h . 935, \xc2\xa7 1313, 68 S tat.\n831.\n\n17\n\n\x0cdoes not explain Congress\xe2\x80\x99 understanding of the effect of the\nAntideficiency Act on the agencies that lacked timely appropriations.6\nNeither are we aware that the Executive Branch formally addressed the\nAntideficiency Act problem on any of these occasions.\nThe four more recent lapses include each of the last four fiscal years,\nfrom fiscal year 1977 to fiscal year 1980. Since Congress adopted a\nfiscal year calendar running from October 1 to September 30 of the\nfollowing year, it has never enacted continuing appropriations for all\nagencies on or before October 1 of the new fiscal year.7 Various\nagencies of the Executive Branch and the General Accounting Office\nhave internally considered the resulting problems within the context of\ntheir budgeting and accounting functions. Your request for my opinion,\nhowever, apparently represents the first instance in which this Depart\xc2\xad\nment has been asked formally to address the problem as a matter of\nlaw.\nI\nunderstand that, for the last several years, the Office of Manage\xc2\xad\nment and Budget (OMB) and the General Accounting Office (GAO)\nhave adopted essentially similar approaches to the administrative prob\xc2\xad\nlems posed by the Antideficiency Act. During lapses in appropriations\nduring this Administration, OMB has advised affected agencies that\nthey may not incur any \xe2\x80\x9ccontrollable obligations\xe2\x80\x9d or make expenditures\nagainst appropriations for the following fiscal year until such appropria\xc2\xad\ntions are enacted by Congress. Agencies have thus been advised to\navoid hiring, grantmaking, nonemergency travel, and other nonessential\nobligations.\nWhen the General Accounting Office suffered a lapse in its own\nappropriations last October, the Director of General Services and Con\xc2\xad\ntroller issued a memorandum, referred to in the Comptroller General\xe2\x80\x99s\nopinion,8 indicating that GAO would need \xe2\x80\x9cto restrain our FY 1980\nobligations to only those essential to maintain day-to-day operations.\xe2\x80\x9d\nEmployees could continue to work, however, because of the Director\xe2\x80\x99s\ndetermination that it was not \xe2\x80\x9cthe intent of Congress that GAO close\ndown.\xe2\x80\x9d\nM n 1952, n o te m p o ra ry a p p ro p ria tio n s w e re e n a c te d fo r fiscal y e a r 1953. T h e su p p le m e n ta l a p p r o \xc2\xad\np ria tio n s m e asu re e n a c te d o n J u ly 15, 1952 d id , h o w e v e r , in c lu d e a p ro v is io n ra tify in g o b lig atio n s\nin c u rre d o n o r sin ce J u ly 1, 1952. A c t o f J u ly 15, 1952, c h . 758, \xc2\xa7 1414, 66 S ta t. 661. T h e ratifica tio n\nw as in c lu d e d , w ith o u t e la b o ra tio n , in th e H o u se C o m m itte e -re p o rte d b ill, H . R ep . N o . 2316, 82d\nC o n g ., 2d Sess. 69 (1952), a n d w a s n o t d e b a te d o n th e floor.\nIn 1954, a te m p o ra ry a p p ro p ria tio n s m e asu re fo r fiscal y e a r 1955 w as p re s e n te d to th e P resid en t on\nJ u ly 2 a n d sig n ed o n J u ly 6. A c t o f J u ly 6, 1954, c h . 460, 68 S tat. 448. T h e S e n a te C o m m itte e on\nA p p ro p ria tio n s s u b se q u e n tly in tro d u c e d a flo o r am e n d m e n t to th e e v e n tu a l su p p le m e n ta l a p p r o p r ia \xc2\xad\ntio n s m e a su re th a t ratified o b lig a tio n s in c u rre d on o r a fte r J u ly 1, 1954, an d w as a c c e p te d w ith o u t\nd e b a te . A c t o f A u g . 26, 1954, c h . 935, \xc2\xa7 1313, 68 S ta t. 831. 100 C o n g . R ec . 13065 (1954).\nIn 1956, C o n g re s s \xe2\x80\x99 te m p o ra ry a p p ro p ria tio n s m e a su re w as passed o n J u ly 2 a n d a p p ro v e d o n J u ly 3.\nA c t o f J u ly 3, 1956, c h . 516, 70 S ta t. 496. N o ra tific a tio n m e asu re fo r p o s t-J u ly 1 o b lig a tio n s w as\ne n a c te d .\n7 P u b . L. 9 4 -4 7 3 , 9 0 S ta t. 2065 (O c t. I I , 1976); P u b . L. 9 5 -1 3 0 , 91 S tat. 1153 (O c t. 13, 1977); Pub.\nL . 9 5 -4 8 2 , 92 S tat. 1603 (O c t. 18, 1978); P u b . L. 9 6 -8 6 , 93 S tat. 656 (O c t. 12, 1979).\n8T h e e n tire m e m o ra n d u m a p p e a rs at 125 C o n g . R ec . S13784 (d aily ed . O c t. 1, 1979) [rem ark s o f\nS en. M ag n u so n ].\n\n18\n\n\x0cIn my view, these approaches are legally insupportable. My judg\xc2\xad\nment is based chiefly on three considerations.\nFirst, as a matter of logic, any \xe2\x80\x9crule of thumb\xe2\x80\x9d excepting employee\npay obligations from the Antideficiency Act would have to rest on a\nconclusion, like that of the Comptroller General, that such obligations\nare unlawful, but also authorized. I believe, however, that legal author\xc2\xad\nity for continued operations either exists or it does not. If an agency\nmay infer, as a matter of law, that Congress has authorized it to operate\nin the absence of appropriations, then in permitting the agency to\noperate, the agency\xe2\x80\x99s supervisory personnel cannot be deemed to vio\xc2\xad\nlate the Antideficiency Act. Conversely, if the Antideficiency Act\nmakes it unlawful for federal agencies to permit their employees to\nwork during periods of lapsed appropriations, then no legislative au\xc2\xad\nthority to keep agencies open in such cases can be inferred, at least\nfrom the Antideficiency Act.\nSecond, as I have already stated, there is nothing in the language of\nthe Antideficiency Act or in its long history from which any exception\nto its terms during a period of lapsed appropriations may be inferred.\nFaithful execution of the laws cannot rest on mere speculation that\nCongress does not want the Executive Branch to carry out Congress\xe2\x80\x99\nunambiguous mandates.\nIt has been suggested, in this regard, that legislative intent may be\ninferred from Congress\xe2\x80\x99 practice in each of the last four years of\neventually ratifying obligations incurred during periods of lapsed appro\xc2\xad\npriations if otherwise consistent with the eventual appropriations.9 Put\xc2\xad\nting aside the obvious difficulty of inferring legal authority from expec\xc2\xad\ntations as to Congress\xe2\x80\x99 future acts, it appears to me that Congress\xe2\x80\x99\npractice suggests an understanding of the Antideficiency Act consistent\nwith the interpretation I have outlined. If legal authority exists for an\nagency to incur obligations during periods of lapsed appropriations,\nCongress would not need to confirm or ratify such obligations. Ratifi\xc2\xad\ncation is not necessary to protect private parties who deal with the\ngovernment. So long as Congress has waived sovereign immunity with\nrespect to damage claims in contract, 28 U.S.C. \xc2\xa7\xc2\xa7 1346, 1491, the\napparent authority alone of government officers to incur agency obliga\xc2\xad\ntions would likely be sufficient to create obligations that private parties\ncould enforce in court. The effect of the ratifying provisions seems thus\nto be limited to providing legal authority where there was none before,\nimplying Congress\xe2\x80\x99 understanding that agencies are not otherwise em\xc2\xad\npowered to incur obligations in advance of appropriations.\nThird, and of equal importance, any implied exception to the plain\nmandate of the Antideficiency Act would have to rest on a rationale\nthat would undermine the statute. The manifest purpose of the\n9 Pu b . L. 9 4 -473, \xc2\xa7 108, 90 S tat. 2066 (1976); P ub. L. 9 5 -1 3 0 , \xc2\xa7 108, .91 S tat. 1154 (1977); P u b . L.\n9 5 -4 8 2 , \xc2\xa7 108, 92 S tat. 1605 (1978); P ub. L. 9 6 -8 6 , \xc2\xa7 117, 93 S tat. 662 (1979).\n\n19\n\n\x0cAntideficiency Act is to insure that Congress will determine for what\npurposes the government\xe2\x80\x99s money is to be spent and how much for\neach purpose. This goal is so elementary to a proper distribution of\ngovernmental powers that when the original statutory prohibition\nagainst obligations in excess of appropriations was introduced in 1870,\nthe only responsive comment on the floor of the House was, \xe2\x80\x9cI believe\nthat is the law of the land now.\xe2\x80\x9d Cong. Globe, 41st Cong., 2d Sess.\n1553 (1870) (remarks of Rep. Dawes).\nHaving interpreted the Antideficiency Act, I would like to outline\nbriefly the legal ramifications of my interpretation. It follows first of all\nthat, on a lapse in appropriations, federal agencies may incur no obliga\xc2\xad\ntions that cannot lawfully be funded from prior appropriations unless\nsuch obligations are otherwise authorized by law. There are no excep\xc2\xad\ntions to this rule under current law, even where obligations incurred\nearlier would avoid greater costs to the agencies should appropriations\nlater be enacted.10\nSecond, the Department of Justice will take actions to enforce the\ncriminal provisions of the Act in appropriate cases in the future when\nviolations of the Antideficiency Act are alleged. This does not mean\nthat departments and agencies, upon a lapse in appropriations, will be\nunable logistically to terminate functions in an orderly way. Because it\nwould be impossible in fact for agency heads to terminate all agency\nfunctions without incurring any obligations whatsoever in advance of\nappropriations, and because statutes that impose duties on government\nofficers implicitly authorize those steps necessary and proper for the\nperformance of those duties, authority may be inferred from the\nAntideficiency Act itself for federal officers to incur those minimal\nobligations necessary to closing their agencies. Such limited obligations\nwould fall within the \xe2\x80\x9cauthorized by law\xe2\x80\x9d exception to the terms of\n\xc2\xa7 665(a).\nThis Department will not undertake investigations and prosecutions\nof officials who, in the past, may have kept their agencies open in\nadvance of appropriations. Because of the uncertainty among budget\nand accounting officers as to the proper interpretation of the Act and\nCongress\xe2\x80\x99 subsequent ratifications of past obligations incurred during\nperiods of lapsed appropriations, criminal sanctions would be inappro\xc2\xad\npriate for those actions.\nRespectfully,\nB e n j a m i n R.\n\n10S ee 21 O p . A tt\xe2\x80\x99y G e n . 288.\n\n20\n\nC iv ile tti\n\n\x0c"