b'The President\xe2\x80\x99s Authority to Order Export of Special Nuclear\nMaterial Under the Atomic Energy Act of 1954\nT h e P re sid en t has th e p o w e r to o r d e r e x p o rts o f special n u c le a r m aterial u n d er \xc2\xa7 126 o f\nth e A to m ic E n e rg y A c t o f 1954, a s am en d ed , w h e n e v e r he d eterm in es th a t \xe2\x80\x9c w ith h o ld \xc2\xad\nin g th e p ro p o sed e x p o rt w o u ld be se riously preju d icial to th e a ch iev em en t o f U n ited\nS tates n o n -p ro lifera tio n o b jectiv es, o r w o u ld o th e rw ise je o p a rd iz e th e co m m o n defense\nan d se c u rity ."\nT h e full-scope safeg u ard s c rite rio n o f \xc2\xa7 128, w h ic h ap p lies to e x p o rts o f special n u clear\nm aterial to n o n -n u clear w eap o n states, is b in d in g o n ly on th e N u c le a r R e g u la to ry\nC om m ission. W hile th e P re sid en t m ay ta k e in to a c c o u n t th e expression o f con g ressio n al\np o licy co n tain ed in \xc2\xa7 128 in d e c id in g to o r d e r an e x p o rt u n d e r \xc2\xa7 126, in clu d in g its\naffo rd a n c e o f a g ra c e perio d , he is n o t bou n d by it.\n\nJune 6, 1980\nM EM ORANDUM OPIN IO N FOR\nTH E COUNSEL TO T H E PR ESID EN T\nThis responds to your request for our opinion whether \xc2\xa7 128 of the\nAtomic Energy Act of 1954, as amended by the Nuclear Non\xc2\xad\nproliferation Act of 1978, 42 U.S.C. \xc2\xa72157, imposes any limitation on\nexercise by the President of his power under \xc2\xa7 126(b)(2) of that Act, 42\nU.S.C.. \xc2\xa7 2155(b)(2), to order export of special nuclear material for\nwhich the Nuclear Regulatory Commission (NRC) has not issued a\nlicense on the stated ground that it could not make the necessary\nstatutory determinations. The issue arises because the NRC concluded\nthat the grace period in \xc2\xa7 128 did not apply to two license applications\nfor export of special nuclear material for the Tarapur reactors in India\nand, therefore, the licenses could not be granted because India has not\nagreed to the full-scope safeguards required by \xc2\xa7 128.1 You also asked\nwhether a presidential order under \xc2\xa7 126(b)(2) that the export go for\xc2\xad\nward is, in effect, also a decision that the full-scope safeguards require\xc2\xad\nment in \xc2\xa7 128 either does not apply because of the statutory grace\nperiod or is waived by the President\xe2\x80\x99s action. Finally, you have re\xc2\xad\nquested our views on whether the President may rely on his interpreta\xc2\xad\ntion of the grace period to order the export.\n1\nT h e Commission w as \xe2\x80\x9c also unable to find th at th e tw o fuel applications satisfy the requirem ents o f\nSection 127 o f th e A tom ic E nergy A c t.\xe2\x80\x9d In the Matter o f Edlow International Co. 11 N .R .C. 680, 682\n(1980).\n\n680\n\n\x0cWe conclude that the full-scope safeguards criterion of \xc2\xa7 128 is bind\xc2\xad\ning only on the NRC. The President may take the expression of\ncongressional policy in \xc2\xa7 128 into account in deciding whether to order\nthe export but he is not bound by it.2 The exclusive criterion binding\non the President is that of \xc2\xa7 126(b)(2) \xe2\x80\x9cthat withholding the proposed\nexport would be seriously prejudicial to the achievement of United\nStates non-proliferation objectives, or would otherwise jeopardize the\ncommon defense and security.\xe2\x80\x9d\nThis presidential finding is the same as that which, pursuant to\n\xc2\xa7 128(b)(1), could be submitted by the President to the NRC to waive\nthe full-scope safeguards criterion during the NRC\xe2\x80\x99s consideration of a\nlicense for exports to which \xc2\xa7 128 applies. However, when the presi\xc2\xad\ndential finding is made under \xc2\xa7 126 after the NRC has refused to issue a\nlicense, it is not necessarily a commentary on the full-scope safeguards\ncriterion. Therefore, it is not necessary for the President to resolve the\nquestion whether the full-scope safeguards of \xc2\xa7 128 apply in order to\ndecide that the export should go forward pursuant to his finding under\n\xc2\xa7 126. Of course, the President may base his conclusion \xe2\x80\x9cthat withhold\xc2\xad\ning the proposed export would be seriously prejudicial to the achieve\xc2\xad\nment of United States non-proliferation objectives, or would otherwise\njeopardize the common defense and security\xe2\x80\x9d on his determination that\nthe export application comes within the spirit of the grace period\nconcept that underlies \xc2\xa7 128.\nSection 126 provides that no license for the export of any special\nnuclear material may be issued by the NRC until the Secretary of State\nhas notified the NRC that it is the judgment of the Executive branch\nthat the proposed export will not be inimical to the common defense\nand security. The Secretary of State must \xe2\x80\x9cspecifically address the\nextent to which the export criteria then in effect are met and the extent\nto which the cooperating party has adhered to the provisions of the\napplicable agreement for cooperation.\xe2\x80\x9d See \xc2\xa7 126(a)(1).\nThe NRC may grant requests for export licenses upon a determina\xc2\xad\ntion that all applicable statutory requirements have been met. See\n\xc2\xa7 126(b)(1). Section 126(b)(2) provides that:\nIf, after receiving the executive branch judgment that the\nissuance of a proposed export license will not be inimical\nto the common defense and security, the Commission does\nnot issue the proposed license on a timely basis because it\nis unable to make the statutory determinations required\nunder this chapter, the Commission shall publicly issue its\ndecision to that effect, and shall submit the license appli\xc2\xad\ncation to the President . . . If, after receiving the pro\xc2\xad\nposed license application and reviewing the Commission\xe2\x80\x99s\n2 T he same is true o f those criteria found in \xc2\xa7 127, 42 U.S.C. \xc2\xa7 2156.\n\n681\n\n\x0cdecision, the President determines that withholding the\nproposed export would be seriously prejudicial to the\nachievement of United States non-proliferation objectives,\nor would otherwise jeopardize the common defense and\nsecurity, the proposed export may be authorized by Exec\xc2\xad\nutive order.3\nThe criteria governing exports for peaceful nuclear uses from the\nUnited States of special nuclear material are set forth in \xc2\xa7 127, 42\nU.S.C. \xc2\xa72156, and involve such matters as application of International\nAtomic Energy Agency (IAEA) safeguards on the particular material\nexported, physical security measures, and limitation on retransfers. An\nadditional criterion applicable to exports to non-nuclear weapon states4\nis that IAEA safeguards must be \xe2\x80\x9cmaintained with respect to all peace\xc2\xad\nful nuclear activities in, under the jurisdiction of, or carried out under\nthe control of such state at the time of export.\xe2\x80\x9d See \xc2\xa7 128(a)(1). This\nadditional criterion, known as full-scope safeguards, applies only to an\napplication \xe2\x80\x9cwhich is filed after eighteen months from March 10, 1978.\xe2\x80\x9d\nSee \xc2\xa7 128(b). The full-scope safeguards requirement may be waived for\napplications filed after this grace period expires if the licensing agency\nis \xe2\x80\x9cnotified that the President has determined that failure to approve an\nexport to which [the full-scope safeguards criterion] applies because\nsuch criterion has not yet been met would be seriously prejudicial to\nthe achievement of United States non-proliferation objectives or other\xc2\xad\nwise jeopardize the common defense and security.\xe2\x80\x9d See \xc2\xa7 128(b)(1).\nSection 128 contains a provision requiring submission of the President\xe2\x80\x99s\ndetermination to Congress similar to that contained in \xc2\xa7 126.\nSection 126(b)(2) gives the President broad power to order an export\nfor foreign policy, national security or other reasons if \xe2\x80\x9cthe President\ndetermines that withholding the proposed export would be seriously\nprejudicial to the achievement of United States non-proliferation objec\xc2\xad\ntives, or would otherwise jeopardize the common defense and secu\xc2\xad\nrity.\xe2\x80\x9d\nIt might be argued that \xc2\xa7\xc2\xa7 127 and 128 apply to all U.S. exports of\nspecial nuclear material and thus limit exercise of the President\xe2\x80\x99s power\nunder \xc2\xa7 126. Section 127 states that \xe2\x80\x9c[t]he United States adopts the\nfollowing criteria which, in addition to other requirements of law, will\ngovern exports.\xe2\x80\x9d Section 128(a) provides that \xe2\x80\x9cno such export\xe2\x80\x9d shall be\nmade unless it meets the criteria; the President is charged with seeking\n3 T his section provides that the executive o rd e r shall be subm itted to C ongress for 60 days o f\ncontinuous session and the export shall not o c cu r if, d u ring the 60 days. C ongress passes a concurrent\nresolution opposing it. W e do not now com m ent on the constitutionality o f this legislative veto\nprovision.\n4 A non-nuclear w eapon state is one that did not explode a nuclear explosive device prior to\nJanuary 1, 1967. A rticle IX, T reaty on the N on-Proliferation o f N uclear W eapons, opened fo r signature\nJuly 1. 1968, 21 U .S.T. 483, T.I.A .S. No. 6839, 729 U .N .T.S. 161 (entered into force M arch 5, 1970).\nIndia falls in this category because it did not explode such a device until 1974.\n\n682\n\n\x0cto achieve adherence to the criteria.5 We believe, however, that read\xc2\xad\ning the criteria in \xc2\xa7\xc2\xa7 127 and 128 as binding on the President would be\nincompatible with the President\xe2\x80\x99s responsibilities set forth in \xc2\xa7 126. Our\nview is supported by members of the NRC, who have continuously and\nrepeatedly recognized that the President\xe2\x80\x99s power under \xc2\xa7 126 is not\nconstrained by the criteria set forth in \xc2\xa7\xc2\xa7 127 and 128.6 As was ex\xc2\xad\nplained by the Deputy to the Undersecretary of State for Security\nAssistance, Science and Technology, when he testified before the\nHouse Subcommittee considering the non-proliferation Act, \xe2\x80\x9c [w]e\nsometimes make the mistake of assuming that nuclear export policy and\nnonproliferation policy are the same thing. They are clearly not. Nu\xc2\xad\nclear export policy is only part of the larger nonproliferation policy.\xe2\x80\x9d 7\nIn sum, it is our conclusion that the President is empowered to order\nthe export of special nuclear material to India in response to the\npending applications upon his determination \xe2\x80\x9cthat withholding the pro\xc2\xad\nposed export would be seriously prejudicial to the achievement of\nUnited States non-proliferation objectives, or would otherwise jeopard\xc2\xad\nize the common defense and security.\xe2\x80\x9d See \xc2\xa7 126(b)(2). That is the sole\ncondition for the exercise of the President\xe2\x80\x99s power.\nThe President may base this presidential finding on his conclusion\nthat the export applications in question come within a grace period\nconcept which is a part of the United States policy on non-proliferation\nand which formed the basis for the exception embodied in \xc2\xa7 128 to the\nfull-scope safeguards criterion for NRC-licensed exports.8 The Presi\xc2\xad\ndent is free to reach this conclusion notwithstanding the NRC decision\nthat, under its interpretation of \xc2\xa7 128, the statutory requirements for the\nNRC to find an exception to the full-scope safeguards criterion have\nnot been met. That NRC decision is irrelevant to the question of the\nPresident\xe2\x80\x99s authority under \xc2\xa7 126 to order this export. Section 128\nsimply does not restrict the President\xe2\x80\x99s authority.\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n*\nT he H ouse R eport on the A ct states that the criteria \xe2\x80\x9cwill apply uniform ly to al! U.S. nuclear\nexports." H.R. Rep. No. 587, 95th Cong., 1st Sess. 23 (1977). T he same R eport explains, how ever, that\nthe bill \xe2\x80\x9c will insure that w hen all statutory standards have been met, export licenses will be issued\xe2\x80\x94\nor, if the judgm ent o f the Executive Branch and the independent N uclear R egulatory Commission\nshould differ, that a w orkable m echanisn\\ exists for resolving the dispute." Id. at 6.\n6 See, e.g.. Separate V iew s o f Commissioners Gilinsky and Bradford on X SN M -1222, 9 N R C 209,\n251 (1979); Separate V iew s o f Commissioners B radford and G ilinsky on X SN M -1060, 7 N .R .C . 436,\n445 (1978); Statem ent o f J. H endrie, Chairm an, N R C , S. Rep. No. 467, 95th Cong., 1st Sess. 112\n(1977).\n7 The Nuclear Antiproliferation Act o f 1977, Hearings on H.R. 8638 Before the Subcomms. on Interna\xc2\xad\n\ntional Security and Scientific Affairs and on International Economic Policy and Trade o f the House Comm,\non International Relations. 95th Cong., 1st Sess. 108 (1977).\n8 T h e statute itself contem plates that the President will state the reasons for his action in his\ncom m unication to Congress. Section 126(b)(2) requires submission to C ongress o f the \xe2\x80\x9c Executive\norder, togeth er w ith his explanation o f w hy, in light o f the C om m ission\xe2\x80\x99s decision, the export should\nnonetheless be m ade.\xe2\x80\x99*\n\n683\n\n\x0c'


b'Prohibition of Spending for Engagement of the Office of\nScience and Technology Policy with China\nSection 1340(a) of division B of the Department of Defense and Full-Year Continuing\nAppropriations Act, 2011, which purports to prevent the Office of Science and\nTechnology Policy from using appropriated funds \xe2\x80\x9cto develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any\nkind to participate, collaborate, or coordinate bilaterally in any way with China or\nany Chinese-owned company,\xe2\x80\x9d is unconstitutional as applied to certain activities\nundertaken pursuant to the President\xe2\x80\x99s constitutional authority to conduct the foreign\nrelations of the United States.\nThe plain terms of section 1340(a) do not apply to OSTP\xe2\x80\x99s use of funds to perform its\nfunctions as a member of the Committee on Foreign Investment in the United States.\nSeptember 19, 2011\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF SCIENCE AND TECHNOLOGY POLICY\nThis memorandum confirms and elaborates upon advice this Office\nprovided to you regarding the permissibility of certain activities of the\nOffice of Science and Technology Policy (\xe2\x80\x9cOSTP\xe2\x80\x9d) involving Chinese\nofficials, organizations, and experts, in light of section 1340(a) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, 125 Stat. 38, 102, 123 (\xe2\x80\x9cContinuing Appropriations Act\xe2\x80\x9d). Section 1340(a) purports to prevent OSTP\nfrom using appropriated funds \xe2\x80\x9cto develop, design, plan, promulgate,\nimplement, or execute a bilateral policy, program, order, or contract of\nany kind to participate, collaborate, or coordinate bilaterally in any way\nwith China or any Chinese-owned company.\xe2\x80\x9d In our view, section\n1340(a) is unconstitutional as applied to certain activities undertaken\npursuant to the President\xe2\x80\x99s constitutional authority to conduct the foreign\nrelations of the United States. Most, if not all, of the activities you have\ndescribed to us fall within the President\xe2\x80\x99s exclusive power to conduct\ndiplomacy, and OSTP\xe2\x80\x99s officers and employees therefore may engage in\nthose activities as agents designated by the President for the conduct of\ndiplomacy with the People\xe2\x80\x99s Republic of China (\xe2\x80\x9cChina\xe2\x80\x9d or \xe2\x80\x9cPRC\xe2\x80\x9d),\nnotwithstanding section 1340(a). We also believe that the plain terms of\nsection 1340(a) do not apply to OSTP\xe2\x80\x99s use of funds to perform its functions as a member of the Committee on Foreign Investment in the United\n116\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nStates, even though those functions include reviewing proposed asset\npurchases in the United States by Chinese businesses and institutions.\nI.\nCongress established OSTP in 1976 within the Executive Office of the\nPresident to \xe2\x80\x9cserve as a source of scientific and technological analysis\nand judgment for the President with respect to major policies, plans, and\nprograms of the Federal Government.\xe2\x80\x9d Presidential Science and Technology Advisory Organization Act of 1976, Pub. L. 94 \xe2\x80\x93282, \xc2\xa7 205(a), 90\nStat. 463, 464 (codified as amended at 42 U.S.C. \xc2\xa7 6614(a)). The Office\nis headed by a Director, whose \xe2\x80\x9cprimary function\xe2\x80\x9d is \xe2\x80\x9cto provide . . .\nadvice on the scientific, engineering, and technological aspects of issues\nthat require attention at the highest levels of Government.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 6613(a). The Director\xe2\x80\x99s statutory responsibilities also include \xe2\x80\x9cdefin[ing] coherent approaches for applying science and technology to critical\nand emerging national and international problems\xe2\x80\x9d; \xe2\x80\x9cassess[ing] and\nadvis[ing] on policies for international cooperation in science and technology which will advance the national and international objectives of\nthe United States\xe2\x80\x9d; \xe2\x80\x9cadvis[ing] the President of scientific and technological considerations involved in areas of national concern including, but\nnot limited to, the economy, national security, homeland security, health,\nforeign relations, the environment, and the technological recovery and\nuse of resources\xe2\x80\x9d; and \xe2\x80\x9cperform[ing] such other duties and functions . . .\nas the President may request.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 6613(b)(1), 6614(a)(1), (9), (13).\nIn 1979, the United States and the People\xe2\x80\x99s Republic of China entered\ninto an executive agreement on cooperation in science and technology.\nIntended \xe2\x80\x9cto provide broad opportunities for cooperation in scientific and\ntechnological fields of mutual interest,\xe2\x80\x9d this agreement and subsequent\nprotocols obligate the two contracting parties to \xe2\x80\x9cencourage and facilitate,\nas appropriate, the development of contacts and cooperation between\ngovernment agencies, universities, organizations, institutions, and other\nentities of both countries, and the conclusion of accords between such\nbodies for the conduct of cooperative activities.\xe2\x80\x9d Agreement Between the\nGovernment of the United States of America and the Government of the\nPeople\xe2\x80\x99s Republic of China on Cooperation in Science and Technology,\nU.S.-China, arts. 1, 4, Jan. 31, 1979, 30 U.S.T. 35 (\xe2\x80\x9c1979 Agreement\xe2\x80\x9d).\nThe 1979 Agreement authorizes the United States and China to enter into\n117\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nsubsequent accords to implement its terms, including accords to promote\nfurther cooperation and address \xe2\x80\x9cintellectual property, funding and other\nappropriate matters.\xe2\x80\x9d Id. art. 5. The 1979 Agreement also specifies that\nthe United States and China \xe2\x80\x9cshall establish a US-PRC Joint Commission\non Scientific and Technological Cooperation,\xe2\x80\x9d which \xe2\x80\x9cshall plan and\ncoordinate cooperation in science and technology, and monitor and facilitate such cooperation.\xe2\x80\x9d Id. art. 10.\nUnder the agreement, each contracting party must \xe2\x80\x9cdesignate an Executive Agent\xe2\x80\x9d with responsibility \xe2\x80\x9cfor coordinating the implementation of its\nside of [all covered] activities and programs.\xe2\x80\x9d Id. The agreement stipulates that the agent of the United States \xe2\x80\x9cshall be the Office of Science\nand Technology Policy.\xe2\x80\x9d Id. Although the 1979 Agreement originally\nprovided that it would remain in force for only five years, it also provided\nfor extension by mutual agreement of the contracting parties, id. art. 11;\nand, in fact, the United States and China have repeatedly agreed to extensions. Most recently, in a January 19, 2011 protocol (signed for the United\nStates by the Director of OSTP), the contracting parties extended the\nagreement until April 2016. Protocol Extending the Agreement Between\nthe Government of the United States of America and the Government of\nthe People\xe2\x80\x99s Republic of China on Cooperation in Science and Technology, U.S.-China, Jan. 19, 2011; see also, e.g., Protocol Extending the\nAgreement Between the Government of the United States of America and\nthe Government of the People\xe2\x80\x99s Republic of China on Cooperation in\nScience and Technology, U.S.-China, Apr. 18, 2006, Temp. State Dep\xe2\x80\x99t\nNo. 06-112, 2006 WL 2620339.\nSince 1979, OSTP\xe2\x80\x99s officers and employees have had extensive contact and engagement with their Chinese counterparts, as contemplated by\nthe agreement. The Joint Commission on Scientific and Technological\nCooperation (\xe2\x80\x9cJoint Commission\xe2\x80\x9d) established by the 1979 Agreement\nmeets biannually to coordinate and manage the collaborative science and\ntechnology activities of the U.S. and Chinese governments. Letter for the\nOffice of Legal Counsel, Department of Justice, from Rachael Leonard,\nGeneral Counsel, Office of Science and Technology Policy at 2 (June 2,\n2011) (\xe2\x80\x9cLeonard Letter\xe2\x80\x9d). We understand that the Joint Commission\nnow manages numerous protocols, memoranda of understanding, and\nother cooperative agreements or undertakings between U.S. agencies and\nChinese government entities. Id. at 3. These accords address subjects\n118\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nsuch as agriculture, energy, health, the environment, earth sciences,\nmarine research, and nuclear safety. Id. In addition, we understand that,\nin 2010, a U.S.-China Dialogue on Innovation Policy (\xe2\x80\x9cInnovation Policy\nDialogue\xe2\x80\x9d) was established as an activity of the Joint Commission. Id.\nThe Innovation Policy Dialogue is a forum for sharing best practices in\npromoting innovation, entrepreneurship, and mutually beneficial technology activities and for identifying, analyzing, and overcoming barriers\nto innovation associated with the two countries\xe2\x80\x99 policies. Id.\nIn recent appropriations legislation, Congress sought to restrict OSTP\xe2\x80\x99s\ninteractions with and activities involving China. Section 1340 of the\nContinuing Appropriations Act, enacted on April 15, 2011, provides in\nfull:\n(a) None of the funds made available by this division may be used\nfor the National Aeronautics and Space Administration or the Office\nof Science and Technology Policy to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or\ncontract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless\nsuch activities are specifically authorized by a law enacted after the\ndate of enactment of this division.\n(b) The limitation in subsection (a) shall also apply to any funds\nused to effectuate the hosting of official Chinese visitors at facilities\nbelonging to or utilized by the National Aeronautics and Space Administration.\n125 Stat. at 123. You asked us, in light of this provision, whether and to\nwhat extent OSTP may engage in activities related to the Joint Commission and the Innovation Policy Dialogue, as well as other interactions with\nrepresentatives of the Chinese government. Leonard Letter at 7\xe2\x80\x938.\nII.\nTo the extent that funding conditions such as those set out in section\n1340(a) bar the President from conducting international diplomacy\nthrough his chosen agents, they unconstitutionally interfere with the\nPresident\xe2\x80\x99s foreign affairs powers and may be disregarded by Executive\nBranch agencies.\n119\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nA.\nAs \xe2\x80\x9cthe constitutional representative of the United States in its dealings\nwith foreign nations,\xe2\x80\x9d United States v. Louisiana, 363 U.S. 1, 35 (1960),\nthe President has \xe2\x80\x9cunique responsibility\xe2\x80\x9d for the conduct of \xe2\x80\x9cforeign . . .\naffairs.\xe2\x80\x9d Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993); see\nalso, e.g., First Nat\xe2\x80\x99l City Bank v. Banco Nacional de Cuba, 406 U.S.\n759, 767 (1972) (noting \xe2\x80\x9cthe lead role of the Executive in foreign policy\xe2\x80\x9d). One well-established component of the President\xe2\x80\x99s foreign affairs\npower is the \xe2\x80\x9cbasic authority to conduct the Nation\xe2\x80\x99s diplomatic relations.\xe2\x80\x9d Prohibition of Spending to Send Delegations to U.N. Agencies\nChaired by Countries That Support International Terrorism, 33 Op.\nO.L.C. 221, 226 (2009) (\xe2\x80\x9cDelegations to U.N. Agencies\xe2\x80\x9d). To be sure,\nCongress \xe2\x80\x9cclearly possesses significant article I powers in the area of\nforeign affairs, including with respect to questions of war and neutrality,\ncommerce and trade with other nations, foreign aid, and immigration,\xe2\x80\x9d id.\nat 226 \xe2\x80\x9327; and Congress\xe2\x80\x99s exercise of those powers has sometimes limited the President\xe2\x80\x99s options in implementing foreign policy, id. at 234.\nBut, \xe2\x80\x9c[i]n the conduct of negotiations with foreign governments, it is\nimperative that the United States speak with one voice. The Constitution\nprovides that that one voice is the President\xe2\x80\x99s.\xe2\x80\x9d Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 40 (1990) (\xe2\x80\x9cForeign\nRelations Authorization Bill\xe2\x80\x9d) (quoting Message to the Senate Returning\nWithout Approval the Bill Prohibiting the Export of Technology for the\nJoint Japan-United States Development of FS-X Aircraft (July 31, 1989),\n2 Pub. Papers of Pres. George H.W. Bush 1042, 1043 (1989)).\nThe President\xe2\x80\x99s exclusive prerogatives in conducting the Nation\xe2\x80\x99s diplomatic relations are grounded in both the Constitution\xe2\x80\x99s system for the\nformulation of foreign policy, including the presidential powers set forth\nin Article II of the Constitution, 1 and in the President\xe2\x80\x99s acknowledged\npreeminent role in the realm of foreign relations throughout the Nation\xe2\x80\x99s\nhistory. See, e.g., Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S. 396, 414 (2003)\n(\xe2\x80\x9cthe historical gloss on the \xe2\x80\x98executive Power\xe2\x80\x99 vested in Article II of the\nSee U.S. Const. art. II, \xc2\xa7 1, cl. 1 (vesting \xe2\x80\x9c[t]he executive Power\xe2\x80\x9d in the President);\nid. art. II, \xc2\xa7 2, cl. 2 (enumerating the President\xe2\x80\x99s powers to \xe2\x80\x9cmake Treaties,\xe2\x80\x9d and \xe2\x80\x9cappoint\nAmbassadors . . . and Consuls\xe2\x80\x9d); id. art. II, \xc2\xa7 3 (establishing President\xe2\x80\x99s authority to\n\xe2\x80\x9creceive Ambassadors and other public Ministers\xe2\x80\x9d).\n1\n\n120\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nConstitution has recognized the President\xe2\x80\x99s \xe2\x80\x98vast share of responsibility\nfor the conduct of our foreign relations\xe2\x80\x99\xe2\x80\x9d (quoting Youngstown Sheet &\nTube Co. v. Sawyer, 343 U.S. 579, 610\xe2\x80\x9311 (1952) (Frankfurter, J., concurring))). 2 This core presidential power over the conduct of diplomacy\nincludes the \xe2\x80\x9cexclusive authority to determine the time, scope, and objectives\xe2\x80\x9d of international negotiations and the individuals who will represent\nthe United States in those contexts. Delegations to U.N. Agencies, 33 Op.\nO.L.C. at 231 (citations and internal quotation marks omitted); see also,\ne.g., id. at 231\xe2\x80\x9332 nn. 9\xe2\x80\x9310 (collecting authorities); Section 235A of the\nImmigration and Nationality Act, 24 Op. O.L.C. 276, 281 (2000) (describing statute as \xe2\x80\x9cimpermissibly specify[ing] the precise subject matter\nof the Executive\xe2\x80\x99s communications with foreign governments\xe2\x80\x9d). As one\nPresident observed in a veto message addressing a legislative provision\nhe determined could impede U.S. consultations with other nations:\nIt has . . . long been recognized\xe2\x80\x94by the Framers, by the Supreme\nCourt, and by past Congresses\xe2\x80\x94that the President, both personally\nand through his subordinates in the executive branch, possesses the\nconstitutional authority to communicate freely with representatives\nof foreign governments, and to encourage foreign nations to take\nsuch actions as the President believes are in our Nation\xe2\x80\x99s interest.\nMessage to the House of Representatives Returning Without Approval the\nForeign Operations, Export Financing, and Related Programs Appropriations Act, 1990, 25 Weekly Comp. Pres. Doc. 1783, 1784 (Nov. 19, 1989)\n(\xe2\x80\x9c1990 Foreign Operations Appropriations Veto Message\xe2\x80\x9d); see also\nMessage to the House of Representatives Returning Without Approval the\nForeign Relations Authorization Act, Fiscal Years 1990 and 1991, 25\nWeekly Comp. Pres. Doc. 1806, 1806 (Nov. 21, 1989) (repeating same\nstatement in veto message addressing similar provision in another bill).\nWe have described the President\xe2\x80\x99s authority over \xe2\x80\x9cinternational negotiations\xe2\x80\x9d as extending to \xe2\x80\x9cany subject that has bearing on the national\n2 See generally Delegations to U.N. Agencies, 33 Op. O.L.C. at 227\xe2\x80\x9330 (discussing\nlongstanding Executive Branch practice and early congressional precedents regarding the\nPresident\xe2\x80\x99s foreign affairs powers); Foreign Relations Authorization Bill, 14 Op. O.L.C.\nat 39\xe2\x80\x9341 (discussing historical examples showing that \xe2\x80\x9cthe courts, the Executive, and\nCongress have all concurred that the President\xe2\x80\x99s constitutional authority specifically\nincludes the exclusive authority to represent the United States abroad\xe2\x80\x9d).\n\n121\n\n\x0c35 Op. O.L.C. 116 (2011)\n\ninterest.\xe2\x80\x9d The President\xe2\x80\x94Authority to Participate in International Negotiations, 2 Op. O.L.C. 227, 228 (1978) (\xe2\x80\x9cAuthority to Participate in International Negotiations\xe2\x80\x9d). The Executive Branch has treated widely varied\nsubject matters as falling within the President\xe2\x80\x99s exclusive authority over\ndiplomacy, including discussion with foreign governments of international fishing restrictions, inquiries regarding the status of certain Israeli\nsoldiers missing in action, and requests by the United States for \xe2\x80\x9ccovert\naction\xe2\x80\x9d by a foreign government or private party. 3 We also have deemed\nlegislative restrictions on the President\xe2\x80\x99s conduct of diplomacy impermissible even when they did not purport to limit discussion of any particular\nsubjects, but rather barred participation by Executive Branch officials in\ncertain international exchanges. See, e.g., Delegations to U.N. Agencies,\n33 Op. O.L.C. at 235; Issues Raised by Provisions Directing Issuance of\nOfficial or Diplomatic Passports, 16 Op. O.L.C. 18, 25\xe2\x80\x9326 (1992) (\xe2\x80\x9cIssuance of Official or Diplomatic Passports\xe2\x80\x9d).\nThe President\xe2\x80\x99s power over the conduct of diplomacy also includes exclusive authority \xe2\x80\x9cto determine the individuals who will represent the\nUnited States in those diplomatic exchanges.\xe2\x80\x9d Delegations to U.N. Agencies, 33 Op. O.L.C. at 231 (footnote and internal quotation marks omitted). As we have recently explained, \xe2\x80\x9cample precedent\xe2\x80\x9d demonstrates\nthat Congress may not constitutionally \xe2\x80\x9cdictate the modes and means by\nwhich the President engages in international diplomacy,\xe2\x80\x9d and \xe2\x80\x9c[s]pecifically[] . . . may not . . . place limits on the President\xe2\x80\x99s use of his preferred\nagents to engage in a category of important diplomatic relations.\xe2\x80\x9d Id. at\n226, 227. We thus deemed unconstitutional a provision that \xe2\x80\x9ceffectively\ndenie[d] the President the use of his preferred agents\xe2\x80\x94representatives of\nthe State Department\xe2\x80\x94to participate in delegations to specified U.N.\nentities chaired or presided over by certain countries.\xe2\x80\x9d Id. at 226.\nThe President also has plenary and exclusive authority to receive diplomatic representatives of foreign governments, by virtue of his specific\nconstitutional authority to \xe2\x80\x9creceive Ambassadors and other public Minis3 See Statement on Signing the Sustainable Fisheries Act, 32 Weekly Comp. Pres. Doc.\n2040, 2041 (Oct. 11, 1996); Statement on Signing Legislation to Locate and Secure the\nReturn of Zachary Baumel, a United States Citizen, and Other Israeli Soldiers Missing in\nAction, 35 Weekly Comp. Pres. Doc. 2305, 2305 (Nov. 8, 1999); Memorandum of\nDisapproval for the Intelligence Authorization Act, Fiscal Year 1991, 26 Weekly Comp.\nPres. Doc. 1958, 1958 (Nov. 30, 1990).\n\n122\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nters.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3. As the Attorney General noted over a century and a half ago, the President\xe2\x80\x99s \xe2\x80\x9cright of reception extends to \xe2\x80\x98all possible diplomatic agents which any foreign power may accredit to the United\nStates.\xe2\x80\x99\xe2\x80\x9d Presidential Power Concerning Diplomatic Agents and Staff of\nthe Iranian Mission, 4A Op. O.L.C. 174, 180 (1980) (quoting Ambassadors and Other Public Ministers of the United States, 7 Op. Atty. Gen.\n186, 209 (1855)). 4 Presidents therefore have regularly objected to legislation purporting to bar their interaction with particular foreign officials. 5\nFinally, we believe the President\xe2\x80\x99s constitutional prerogatives to engage\nin international negotiations and discussions through his preferred agents\nand to receive diplomatic agents from abroad also prevent congressional\ninterference with the participation by the President and his agents in the\nactivities, functions, and preparatory work necessary to carry out meaningful diplomatic interaction with foreign officials. Without the authority\nto prepare and perform other necessary related tasks, the diplomatic\nactivities of the President and his agents would be unduly constrained or\nforeclosed. Cf. Issuance of Official or Diplomatic Passports, 16 Op.\n4\n\nSee also, e.g., Constitutionality of Closing the Palestine Information Office, an Affiliate of the Palestine Liberation Organization, 11 Op. O.L.C. 104, 122 (1987) (\xe2\x80\x9cThe right\nto decide whether to accord to the [Palestine Liberation Organization] diplomatic status\nand what that diplomatic status should be is encompassed within the right of the President\nto receive ambassadors. U.S. Const. art. II, \xc2\xa7 3. This power is textually committed to the\nExecutive alone.\xe2\x80\x9d).\n5 See, e.g., Statement on Signing the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 32 Weekly Comp. Pres. Doc. 479, 479 (Mar. 12, 1996) (observing\nthat \xe2\x80\x9c[a] categorical prohibition on the entry of [certain individuals who confiscate or\ntraffic in expropriated property] could constrain the exercise of my exclusive authority\nunder Article II of the Constitution to receive ambassadors and to conduct diplomacy\xe2\x80\x9d);\nStatement on Signing the Foreign Relations Authorization Act, Fiscal Years 1990 and\n1991, 26 Weekly Comp. Pres. Doc. 266, 267 (Feb. 16, 1990) (objecting on constitutional\ngrounds to provisions restricting expenditure of funds for discussion with representatives\nof the Palestine Liberation Organization whom the President knew to be directly involved\nin terrorist activity and purporting to bar admission to the United States of foreign representatives to the United Nations who had been found to have engaged in certain espionage\nactivities directed against the United States or its allies); cf. Statement on Signing H.R.\n1777 into Law, 23 Weekly Comp. Pres. Doc. 1547, 1548 (Dec. 22, 1987) (concluding that\nprohibition on \xe2\x80\x9cestablishment anywhere within the jurisdiction of the United States of an\noffice \xe2\x80\x98to further the interests of\xe2\x80\x99 the Palestine Liberation Organization\xe2\x80\x9d created \xe2\x80\x9cno\nactual constitutional conflict\xe2\x80\x9d only because the President had \xe2\x80\x9cno intention of establishing\ndiplomatic relations with the PLO\xe2\x80\x9d).\n\n123\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nO.L.C. at 21\xe2\x80\x9322, 25\xe2\x80\x9327 (concluding that a legislative provision was\ninvalid insofar as it barred the issuance of multiple official diplomatic\npassports to U.S. officials, because that practice facilitated diplomacy and\nflowed from the Executive\xe2\x80\x99s authority \xe2\x80\x9cto determine the form and manner\nin which the United States will maintain relations with foreign nations\xe2\x80\x9d);\nBill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19\nOp. O.L.C. 123, 125 (1995) (\xe2\x80\x9cBill to Relocate U.S. Embassy\xe2\x80\x9d) (\xe2\x80\x9cCongress\nmay not impose on the President its own foreign policy judgments as to\nthe particular sites at which the United States\xe2\x80\x99 diplomatic relations are to\ntake place,\xe2\x80\x9d because \xe2\x80\x9cthe venue at which diplomatic relations occur is\nitself often diplomatically significant\xe2\x80\x9d).\nB.\nWe turn now to the application of these principles to section 1340.\nInitially, we note that the fact that section 1340 is an appropriations\nrestriction, rather than a direct prohibition of conduct, does not affect our\nanalysis of whether the particular limits that section 1340 places on\nOSTP\xe2\x80\x99s activities are constitutional. As we explained in our Delegations\nto U.N. Agencies opinion, Congress may use its spending power to decline to appropriate money or place conditions on its appropriations. 33\nOp. O.L.C. at 235\xe2\x80\x9336. Congress may not, however, \xe2\x80\x9cuse the appropriations power to control a Presidential power that is beyond its direct\ncontrol\xe2\x80\x9d or to \xe2\x80\x9cinvade core Presidential prerogatives in the conduct of\ndiplomacy.\xe2\x80\x9d Id. at 237 (citations and quotation marks omitted). 6 At least\n\nSee also, e.g., Section 609 of the FY 1996 Omnibus Appropriations Act, 20 Op.\nO.L.C. 189, 197 (1996) (\xe2\x80\x9cit has long been established that the spending power may not be\ndeployed to invade core Presidential prerogatives in the conduct of diplomacy\xe2\x80\x9d); Placing\nof United States Forces Under United Nations Operational or Tactical Control, 20 Op.\nO.L.C. 182, 187\xe2\x80\x9388 (1996) (\xe2\x80\x9cThat Congress has chosen to invade the President\xe2\x80\x99s authority indirectly, through a condition on an appropriation, rather than through a direct mandate, is immaterial.\xe2\x80\x9d); Bill to Relocate U.S. Embassy, 19 Op. O.L.C. at 126 (\xe2\x80\x9cit does not\nmatter in this instance that Congress has sought to achieve its objectives through the\nexercise of its spending power, because the condition it would impose on obligating\nappropriations is unconstitutional\xe2\x80\x9d); Foreign Relations Authorization Bill, 14 Op. O.L.C.\nat 44 (\xe2\x80\x9cthe President may enforce the remainder of the provision, disregarding\xe2\x80\x9d an\nunconstitutional funding condition).\n6\n\n124\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\ninsofar as it has otherwise appropriated funds, 7 Congress may not impair\nthe President\xe2\x80\x99s conduct of foreign affairs by imposing restrictions on\nexpenditures that serve diplomatic purposes.\nApplying the general legal principles and conclusions outlined in Part\nII.A to the particular facts presented here, we conclude that OSTP may\nengage in most, if not all, of the activities you have described, notwithstanding section 1340(a). As a general matter, discussions of the sort\nidentified in your request\xe2\x80\x94meetings and exchanges with Chinese officials\nregarding policy concerns and possible cooperative undertakings or\nagreements relating to science and technology\xe2\x80\x94fall squarely within the\nscope of the President\xe2\x80\x99s constitutional authority to engage in discussions\nwith foreign governments. Such matters undoubtedly have a significant\n\xe2\x80\x9cbearing on the national interest.\xe2\x80\x9d Authority to Participate in International Negotiations, 2 Op. O.L.C. at 228. Indeed, in an indication of the\nsignificance of these matters for U.S. relations with China, the State\nDepartment has informally advised us that the U.S. Embassy in Beijing\nincludes multiple officials, recognized as diplomatic agents by the Chinese government, who work principally on facilitating cooperative activities with China on science and technology matters. Cf. Vienna Convention\non Diplomatic Relations art. 3, Apr. 18, 1961, 23 U.S.T. 3227 (entered\ninto force with respect to the United States Dec. 13, 1972) (identifying\n\xe2\x80\x9cdeveloping . . . economic, cultural, and scientific relations\xe2\x80\x9d as a function\nof a diplomatic mission).\nIn light of the diplomatic character of such activities, it is equally clear\nthat the President has exclusive constitutional authority to choose the\nagents who will engage in the activities. See, e.g., Delegations to U.N.\nAgencies, 33 Op. O.L.C. at 227. That authority provides him with absolute discretion to choose whomever he considers most suitable for a\nparticular purpose. The circumstances here, in fact, illustrate the practical\nimportance of this presidential prerogative. OSTP, as noted, is the designated \xe2\x80\x9cExecutive Agent\xe2\x80\x9d of the United States for exchanges with China\non science and technology matters under a longstanding international\nagreement. But the current Director of OSTP, Dr. John P. Holdren, is also\nWe have been asked only to address the effect of section 1340(a) and therefore presume, for purposes of this opinion, that the expenditures were otherwise authorized. We\nneed not and do not address the legality or propriety of OSTP\xe2\x80\x99s expenditures under\ngoverning appropriations provisions apart from section 1340(a).\n7\n\n125\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nan accomplished scientist with a distinguished r\xc3\xa9sum\xc3\xa9 who serves as the\nAssistant to the President for Science and Technology. In addition to any\nbackground knowledge, scientific expertise, and personal relationships\nDr. Holdren may bring to bear in particular diplomatic exchanges, it\nwould be reasonable for the President to conclude that the prestige associated with Dr. Holdren\xe2\x80\x99s official titles and qualifications may assist the\nUnited States in achieving its diplomatic goals. Accordingly, barring Dr.\nHoldren\xe2\x80\x99s participation in diplomatic exchanges could severely impair the\nachievement of those goals by denying to the President one important\nmeans of signaling the priority the United States attaches to science and\ntechnology policy in its international relationships.\nOur answers to your specific questions are as follows: You asked, first,\nwhether Dr. Holdren may continue to serve as co-chair of the Joint Commission and the Innovation Policy Dialogue, and also whether he may\nrepresent the work of the Innovation Policy Dialogue in a broader diplomatic forum known as the U.S.-China Strategic and Economic Dialogue\n(\xe2\x80\x9cS&ED Dialogue\xe2\x80\x9d). You have described the Joint Commission as \xe2\x80\x9cthe\nmain body that facilitates science and technology cooperation under the\n[1979] bilateral agreement.\xe2\x80\x9d Leonard Letter at 2. The Joint Commission\n\xe2\x80\x9coversees, implements, and promotes expansion of [science and technology] cooperation with China in areas of mutual benefit to the two countries.\xe2\x80\x9d Id. You have described the Innovation Policy Dialogue as a forum\nfor \xe2\x80\x9cshar[ing] best practices in promoting innovation, entrepreneurship,\nand mutually beneficial joint activities in high technology\xe2\x80\x9d and \xe2\x80\x9cespecially\xe2\x80\x9d for \xe2\x80\x9cidentify[ing], analyz[ing], and overcom[ing] barriers to innovation and associated trade and business activities that may be associated\nwith innovation policies, intellectual-property rights . . . policies, trade\npolicies, etc., on either side.\xe2\x80\x9d Id. at 3\xe2\x80\x934.\nBased on your descriptions, we believe that most, if not all, activity associated with the Director of OSTP\xe2\x80\x99s participation in these activities\nwould involve either diplomatic discussion of the two countries\xe2\x80\x99 policies,\nor the formation and refinement of international agreements and other\ncooperative undertakings between the United States and China. The Joint\nCommission, the Innovation Dialogue, and the S&ED Dialogue also all\ninvolve efforts to encourage China \xe2\x80\x9cto take such actions as the President\nbelieves are in our Nation\xe2\x80\x99s interest.\xe2\x80\x9d 1990 Foreign Operations Appropriations Veto Message, 25 Weekly Comp. Pres. Doc. at 1783. These\n126\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nefforts implicate the President\xe2\x80\x99s exclusive authority to determine the time,\nscope, and objectives of discussions with China, as well as his exclusive\nauthority to select the agent he prefers as the representative of the United\nStates in these discussions.\nYou also asked whether the Director of OSTP may \xe2\x80\x9cmeet with Chinese\nofficials and technical experts on . . . issues, like the ongoing nuclear\ncrisis in Japan, to discuss ways in which the U.S. and China might work\ntogether on these topics.\xe2\x80\x9d Leonard Letter at 8. Again, we conclude that\nsuch meetings to discuss possible joint responses to an international crisis\nand other possible \xe2\x80\x9cways [the two countries] might work together\xe2\x80\x9d constitute quintessential diplomatic activities and exchanges over which the\nPresident has exclusive authority.\nOther activities you describe that support or facilitate exchanges between U.S. and Chinese officials to discuss matters of mutual and ongoing\nconcern also fall within the Executive\xe2\x80\x99s exclusive power to conduct\ndiplomacy. We include in this category expenditures for the Director of\nOSTP\xe2\x80\x99s work in preparation for Joint Commission and Innovation Policy\nDialogue meetings and presentations to the S&ED Dialogue; staff support\nwork necessary to prepare for and participate in such meetings and activities; associated travel and lodging expenses, translation services, meeting\nroom fees, and use of audiovisual equipment; and other administrative\nsupport services. See id. at 7\xe2\x80\x938. Such expenditures for preparation, support, and facilitation of diplomatic discussion fall within the President\xe2\x80\x99s\nexclusive authority when they are necessary to carry out meaningful\ndiplomatic initiatives. Accordingly, at least insofar as Congress has appropriated funds for agency staff work and expenses generally, section\n1340(a) may not constrain the use of those funds for expenditures necessary to support diplomatic activities. Cf. Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. at 25\xe2\x80\x9327 (deeming unconstitutional an appropriations rider that barred use of funds for issuance of multiple official\npassports to diplomats who would be denied entry to certain Arab League\nstates and thus be unable to represent the United States in important\ndiplomatic exchanges if they used a passport showing prior travel to\nIsrael); Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 435 (1990)\n(White, J., concurring) (rejecting view \xe2\x80\x9cthat Congress could impair the\nPresident\xe2\x80\x99s pardon power by denying him appropriations for pen and\npaper\xe2\x80\x9d).\n127\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nWe also would include in this category the support activities for the\n\xe2\x80\x9cexperts-level working group\xe2\x80\x9d associated with the Innovation Policy\nDialogue. Your submission to us indicates that there is \xe2\x80\x9c[a]ssociated with\nthe ministerial level [Dialogue on Innovation Policy] . . . an experts-level\nworking group that is addressing a variety of key technical issues, including \xe2\x80\x98on the ground\xe2\x80\x99 monitoring of whether commitments are being observed in practice.\xe2\x80\x9d Leonard Letter at 3. You have asked whether OSTP\nemployees may \xe2\x80\x9csupport the experts-level working group (made up of\nnon-government officials from American and Chinese businesses and\nuniversities) in their role of providing information and advice on barriers\nto the successful fulfillment of bi-lateral agreements,\xe2\x80\x9d and whether OSTP\nmay \xe2\x80\x9cmake recommendations to the co-chairs of the Innovation Dialogue\nregarding policies that will enhance market access for US companies.\xe2\x80\x9d Id.\nat 8. To the extent that the OSTP employees are supporting activities of\nthe experts-level working group that provide policymakers with information and analysis needed to facilitate dialogue with Chinese officials,\nor the formulation of joint policy initiatives, the activities of OSTP employees would be facilitating diplomacy and would fall within the President\xe2\x80\x99s exclusive constitutional authority over diplomatic relations. Likewise, OSTP employee activity necessary to \xe2\x80\x9cmak[ing] recommendations\xe2\x80\x9d\nto diplomatic negotiators on particular policy options facilitates diplomatic negotiations and would fall within the President\xe2\x80\x99s exclusive authority.\nFinally, you asked whether OSTP may provide \xe2\x80\x9csmall gifts\xe2\x80\x9d and meals\nfor visiting Chinese delegations. We believe that, to the extent Congress\nhas appropriated funds to OSTP for such purposes generally, 8 OSTP\xe2\x80\x99s\ndecision to use those funds to provide small gifts and meals to particular\nforeign officials falls within the Executive\xe2\x80\x99s exclusive constitutional\nprerogatives. Congress may not impose restrictions on the funds it has\nappropriated that would interfere with the President\xe2\x80\x99s conduct of diplomacy. Participation in social interactions with foreign officials, exchanges\nof customary gifts, and the extension of the courtesies associated with\ndiplomatic meetings can constitute an expected element of international\ndiplomacy and may be necessary to facilitate diplomatic exchange or to\nrepay hospitality afforded to U.S. delegations by the Chinese government.\n8 As noted above, see supra note 7, we assume for purposes of this opinion that appropriated funds are available in general for the purposes you have described; we address\nonly the effect of section 1340(a) on such appropriations.\n\n128\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nThe President could reasonably conclude that the failure of the United\nStates to engage in these activities would harm the standing and influence\nof the United States and therefore impair our ability to achieve diplomatic\nobjectives. 9 Congress itself has recognized the diplomatic significance of\nthese types of expenditures by specifically authorizing many agencies,\nincluding OSTP, to expend funds for \xe2\x80\x9cofficial reception and representation,\xe2\x80\x9d a practice that \xe2\x80\x9coriginated,\xe2\x80\x9d according to the Comptroller General,\n\xe2\x80\x9cfrom the need to permit officials of agencies with significant presence in\nforeign countries to reciprocate courtesies extended to them by foreign\nofficials.\xe2\x80\x9d Matter of: United States Trade Representative\xe2\x80\x94Use of Reception and Representation Funds, B-223678, 1989 WL 240750, at *4 n.2\n(Comp. Gen. June 5). 10\nThough we have concluded that section 1340(a) is unconstitutional in\nthe many applications we have discussed, the provision is constitutional in\nsome other applications. For example, its broad terms\xe2\x80\x94restricting any use\nof funds \xe2\x80\x9cto develop, design, plan, promulgate, implement, or execute a\nbilateral policy, program, order, or contract of any kind to participate,\ncollaborate, or coordinate bilaterally in any way with China or any Chinese-owned company\xe2\x80\x9d\xe2\x80\x94may well bar expenditures for activities that are\nneither diplomatic in character nor otherwise within the exclusive consti-\n\nCf. Delegations to U.N. Agencies, 33 Op. O.L.C. at 235 (objecting to restrictions on\nU.S. delegations to the United Nations on the ground that failure to send such delegations\nwould compromise the \xe2\x80\x9cstanding and influence\xe2\x80\x9d of the United States).\n10 Congress appropriated funds for OSTP most recently in the Continuing Appropriations Act \xc2\xa7 1101(a)(6), 125 Stat. at 103, which carried forward appropriations levels\nfrom the Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, div. B, tit. III,\n123 Stat. 3034, 3142 (2009). The latter statute appropriated funds \xe2\x80\x9cnot to exceed $2,500\nfor official reception and representation expenses\xe2\x80\x9d of OSTP. Id. A permanent authorization statute for the State Department similarly recognizes that expenditures for \xe2\x80\x9cofficial\nreceptions\xe2\x80\x9d and other \xe2\x80\x9centertainment and representational expenses\xe2\x80\x9d may be necessary\n\xe2\x80\x9cfor the proper representation of the United States and its interests.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 4085;\nsee also General Accounting Office, GAO-04-261SP, 1 Principles of Federal Appropriations Law 4-135 (3d ed. 2004) (\xe2\x80\x9cthe State Department would find it difficult to accomplish its mission if it could not spend any money entertaining foreign officials\xe2\x80\x9d); cf.\nApplication of 18 U.S.C. \xc2\xa7 603 to Activities in the White House Involving the President,\n3 Op. O.L.C. 31, 42 (1979) (noting, in connection with interpreting a particular statute,\nthat \xe2\x80\x9c[p]articipation in ceremonial dinners and attendance at other gatherings in furtherance of the conduct of the President\xe2\x80\x99s constitutional duties,\xe2\x80\x9d including \xe2\x80\x9centertainment of\nforeign dignitaries,\xe2\x80\x9d are \xe2\x80\x9cordinarily regarded as essential parts of the President\xe2\x80\x99s job\xe2\x80\x9d).\n9\n\n129\n\n\x0c35 Op. O.L.C. 116 (2011)\n\ntutional authority of the President. Congress may restrict the implementation of previously negotiated agreements, insofar as such restrictions do\nnot interfere with activity that is itself diplomatic. Congress may also\n\xe2\x80\x9cmodify the domestic legal effects\xe2\x80\x9d of an agreement, even if doing so has\nrepercussions for the United States on the international stage. See, e.g.,\nValidity of Congressional-Executive Agreements that Substantially Modify\nthe United States\xe2\x80\x99 Obligations Under an Existing Treaty, 20 Op. O.L.C.\n389, 389 (1996) (noting the well-established nature of this congressional\npower). 11 Thus, whether Congress may validly prevent Dr. Holdren from\nperforming work \xe2\x80\x9crequired to . . . follow up\xe2\x80\x9d on meetings of the Joint\nCommission and Innovation Policy Dialogue\xe2\x80\x94another type of activity\nyou inquired about\xe2\x80\x94may depend on the nature of the follow-up work.\nTo provide a concrete illustration, Congress could decline to appropriate funds for OSTP participation in a conference bringing together the\nU.S. business community to determine how to meet energy efficiency\nbenchmarks, even if those benchmarks were articulated in agreements\nnegotiated between OSTP and China. On the other hand, Congress may\nnot bar follow up work after Joint Commission or Innovation Policy\nDialogue meetings that is itself diplomatic in character or necessary to the\neffective conduct of diplomacy, including efforts to evaluate an agreement\xe2\x80\x99s effectiveness in order to determine how best to proceed in future\ndiplomatic discussions. As you have explained, \xe2\x80\x9c[t]he negotiation of a\nnew agreement or modification of an existing agreement often requires\nknowledge of the implementation history of current agreements.\xe2\x80\x9d Leonard\nLetter at 8.\nIn sum, at least insofar as Congress has otherwise appropriated funds to\nOSTP, Congress may not impair the President\xe2\x80\x99s conduct of foreign affairs\nthrough restrictions targeted at OSTP expenditures for diplomatic purposes. In many instances, therefore, the restrictions that section 1340 imposes\nSee also, e.g., Breard v. Greene, 523 U.S. 371, 376 (1998) (\xe2\x80\x9c\xe2\x80\x98an Act of Congress . . .\nis on a full parity with a treaty, and . . . when a statute which is subsequent in time is\ninconsistent with a treaty, the statute to the extent of the conflict renders the treaty null\xe2\x80\x99\xe2\x80\x9d)\n(quoting Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) (first ellipsis in original)); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) (\xe2\x80\x9cCongress\nby legislation, and so far as the people and authorities of the United States are concerned,\ncould abrogate a treaty made between this country and another country which had been\nnegotiated by the President and approved by the Senate\xe2\x80\x9d).\n11\n\n130\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nare unconstitutional. But, given that section 1340 is likely constitutional\nin certain applications, the appropriate course of action is to treat the\nunconstitutional applications of section 1340(a) as effectively severed. 12\nSee Foreign Relations Authorization Bill, 14 Op. O.L.C. at 44\xe2\x80\x9345 (\xe2\x80\x9cA\npresumption in favor of the severability of unconstitutional provisions\nexists so long as what remains of the statute is capable of functioning\nindependently.\xe2\x80\x9d) (collecting cases). Moreover, there is no reason to believe that the Continuing Appropriations Act \xe2\x80\x9cwill not function in a manner consistent with the intent of Congress\xe2\x80\x9d if the unconstitutional applications of section 1340(a) are severed. 13 Delegations to U.N. Agencies, 33\nOp. O.L.C. at 238 n.18 (internal quotation marks omitted). The Continuing Appropriations Act, of which section 1340 is a part, as well as section\n1340 itself, may continue to be applied as if the Act did not include the\nunconstitutional funding restrictions. See id.\nIII.\nYou have also asked whether, under section 1340(a), OSTP may continue to participate in the Committee on Foreign Investment in the United\n12 The general rule that unconstitutional provisions in Acts of Congress should be severed, leaving the remainder of the Act in question valid and in place, applies equally to\nsituations in which only certain applications of a provision would be unconstitutional. See\ngenerally United States v. Booker, 543 U.S. 220, 247 (2005) (\xe2\x80\x9c[S]ometimes severability\nquestions (questions as to how, or whether, Congress would intend a statute to apply) . . .\narise when a legislatively unforeseen constitutional problem requires modification of a\nstatutory provision as applied in a significant number of instances . . . . [S]everability\nquestions can arise from unconstitutional applications of statutes.\xe2\x80\x9d (citation and internal\nquotation marks omitted)).\n13 To the contrary, although the chairman of the House appropriations subcommittee\nwith jurisdiction over OSTP noted in a floor statement that the appropriations bill included \xe2\x80\x9clanguage prohibiting NASA and the Office of Science and Technology in the White\nHouse from participating in bilateral cooperation with China,\xe2\x80\x9d 157 Cong. Rec. H2741\n(daily ed. Apr. 14, 2011) (statement of Rep. Wolf), statements by this same Representative and other Members of Congress emphasized the bill\xe2\x80\x99s overriding purpose of establishing appropriations levels for the federal Government as a whole, including OSTP, for\nthe remainder of the fiscal year. See, e.g., id. (expressing \xe2\x80\x9cvery strong support\xe2\x80\x9d for the bill\nand noting that it \xe2\x80\x9cpreserves strong funding levels for critical national priorities\xe2\x80\x9d); 157\nCong. Rec. H2742 (daily ed. Apr. 14, 2011) (statement by Rep. Fattah, ranking member\nof same appropriations subcommittee) (\xe2\x80\x9c[i]n our section of this bill . . . it\xe2\x80\x99s very, very\nimportant that we get out of the temporary [continuing resolution] business\xe2\x80\x9d).\n\n131\n\n\x0c35 Op. O.L.C. 116 (2011)\n\nStates (\xe2\x80\x9cCFIUS\xe2\x80\x9d), a federal government entity that reviews certain transactions that have national security implications. See 50 U.S.C. app.\n\xc2\xa7 2170 (2006 & Supp. III 2009); Exec. Order No. 11858, reprinted as\namended in 50 U.S.C. app. \xc2\xa7 2170, at 823\xe2\x80\x9325. We conclude that section\n1340(a) is best understood not to restrict OSTP\xe2\x80\x99s participation in CFIUS.\nCFIUS is composed of the heads of federal agencies and offices specified by statute and executive order, one of which is OSTP. 50 U.S.C. app.\n\xc2\xa7 2170(k); Exec. Order No. 11858, \xc2\xa7 3, reprinted as amended in 50\nU.S.C. app. \xc2\xa7 2170, at 824. CFIUS reviews certain transactions \xe2\x80\x9cby or\nwith any foreign person which could result in foreign control [as defined\nin applicable regulations] of any person engaged in interstate commerce in\nthe United States.\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7 2170(a)(2), (3), (b); see also 31\nC.F.R. \xc2\xa7 800.204 (2010) (defining \xe2\x80\x9ccontrol\xe2\x80\x9d); id. \xc2\xa7\xc2\xa7 800.301\xe2\x80\x93800.303\n(discussing scope of covered transactions).\nIn certain circumstances, including any case where the transaction\n\xe2\x80\x9ccould result in the control of any person engaged in interstate commerce\nin the United States by a foreign government or an entity controlled by or\nacting on behalf of a foreign government,\xe2\x80\x9d CFIUS must \xe2\x80\x9cconduct an\ninvestigation of the effects of [the] transaction on the national security of\nthe United States, and take any necessary actions in connection with the\ntransaction to protect the national security of the United States.\xe2\x80\x9d 50\nU.S.C. app. \xc2\xa7 2170(a)(3), (b)(1)(B), (b)(2)(A); Exec. Order No. 11858,\n\xc2\xa7 6(b), reprinted as amended in 50 U.S.C. app. \xc2\xa7 2170, at 824. Where\nappropriate, CFIUS or, on its behalf, a \xe2\x80\x9clead agency\xe2\x80\x9d designated by the\nSecretary of the Treasury (who is a member of CFIUS and serves as its\nchairperson) may \xe2\x80\x9cnegotiate, enter into or impose, and enforce any\nagreement with any party to [a] covered transaction in order to mitigate\nany threat to the national security of the United States that arises as a\nresult of the covered transaction.\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7 2170(k)(2), (3), (5),\n(l ); Exec. Order No. 11858, \xc2\xa7 7(a)\xe2\x80\x93(c), reprinted as amended in 50 U.S.C.\napp. \xc2\xa7 2170, at 824. In addition, the President has authority, following a\nCFIUS investigation, to \xe2\x80\x9ctake such action for such time as the President\nconsiders appropriate to suspend or prohibit any covered transaction that\nthreatens to impair the national security of the United States.\xe2\x80\x9d 50 U.S.C.\napp. \xc2\xa7 2170(d); Exec. Order No. 11858, \xc2\xa7 6(c), reprinted as amended in\n50 U.S.C. app. \xc2\xa7 2170, at 824.\n\n132\n\n\x0cProhibition of Spending for Engagement of OSTP with China\n\nThe Director of OSTP\xe2\x80\x99s participation in CFIUS could involve OSTP\nin the review and approval or disapproval of transactions involving\n\xe2\x80\x9cChina or any Chinese-owned company.\xe2\x80\x9d Continuing Appropriations\nAct \xc2\xa7 1340(a). Indeed, in particular cases, either as a CFIUS member or\nas the designated \xe2\x80\x9clead agency,\xe2\x80\x9d OSTP might be involved in negotiating,\nimposing, or enforcing agreements or other conditions that CFIUS deems\nnecessary to protect U.S. national security with respect to such transactions. But while such mitigation agreements may be a form of \xe2\x80\x9ccontract,\xe2\x80\x9d\nwe do not understand them to fall within the scope of section 1340(a)\xe2\x80\x99s\nfunding restrictions.\nBy its plain terms, section 1340(a) restricts OSTP\xe2\x80\x99s use of funds only\nwith respect to \xe2\x80\x9ca bilateral policy, program, order, or contract of any kind\nto participate, collaborate, or coordinate bilaterally in any way with China\nor any Chinese-owned company.\xe2\x80\x9d This language applies only to agreements between the United States and China or any Chinese-owned company that are both \xe2\x80\x9cbilateral\xe2\x80\x9d and in some sense cooperative. See 157\nCong. Rec. H2741 (daily ed. Apr. 14, 2011) (statement of Rep. Wolf)\n(describing provision as prohibiting OSTP \xe2\x80\x9cfrom participating in bilateral\ncooperation with China\xe2\x80\x9d). Mitigation agreements negotiated by CFIUS or\na CFIUS lead agency are not bilateral cooperative undertakings, because\nthey are negotiated to satisfy regulatory requirements imposed by the\nUnited States, through the CFIUS process, as a condition on a desired\ntransaction. Likewise, OSTP\xe2\x80\x99s other activities as a CFIUS member, as you\nhave described them to us, involve review, investigation, and regulation\nof transactions involving foreign-controlled parties and thus would not\ninvolve OSTP in \xe2\x80\x9cdevelop[ing], design[ing], plan[ning], promulgat[ing],\nimplement[ing], or execut[ing]\xe2\x80\x9d a bilateral cooperative undertaking covered by section 1340(a). Accordingly, OSTP\xe2\x80\x99s CFIUS-related activities\nwith respect to transactions involving China or any Chinese-owned company are not restricted by section 1340(a).\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n133\n\n\x0c'