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OLC Opinion in the News:

Charlie Savage has an article in the New York Times today about an OLC opinion released in late August addressing the constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act. The opinion concluded that the provision unconstitutionally infringes the President's foreign affairs powers and thus the President can disregard it. Savage writes:

The Justice Department has declared that President Obama can disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.

Based on that decision, which echoes Bush administration policy, the Obama administration sent State Department officials to the board meetings of the United Nations' Development Program and Population Fund in late spring and this month, a department spokesman said. The bodies are presided over by Iran, which is on the department's terror list, along with Cuba, Sudan and Syria.

The article quotes an occasional Conspirator (uh, me).

The opinion supported one of President Obama's signing statements. It read, in relevant part:

Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

ruuffles (mail) (www):

Nothing in the Constitution explicitly says Congress cannot forbid using taxpayer money to send certain officials to diplomatic meetings that lawmakers find objectionable. The Supreme Court has never ruled on the question.

So who would have standing to sue in court?
9.16.2009 10:33am
PatHMV (mail) (www):
So much for the fierce moral urgency of change for those evil, nasty signing statements!
9.16.2009 10:34am
RowerinVa (mail):
I'll be interested to see if Savage uses the same methods to attack Obama as he did to attack Bush; for example, counting a single signing statement as multiple statements, if the statement had more than one part, in an attempt to show that the number of Bush statements was higher than those for Clinton, Carter, and previous Republican presidents.

Not that any of this matters. No court has ever treated a signing statement as important, and the alternative to signing statements -- which would be the President interpreting the Constitution in a way that could start a fight with Congress, but NOT explaining this fact or his reasons -- is obviously worse than having a statement.

So, at least for the moment, bravo to President Obama for using signing statements openly, and bravo to Savage for reporting on them with at least a bit of the same fervor he showed when Bush used them.
9.16.2009 10:57am
Soronel Haetir (mail):
Given that Congress eventually has to approve payment for anything the President agrees to, even in cases where no formal treaty is entered, I fail to see how Congress doesn't have the power to forbid using tax monies to pay for certain travel.

And if the money isn't appropriated, does the President just claim the power to take away from something that is in fact funded? Is there just some giant slush fund somewhere?
9.16.2009 11:10am
Soronel Haetir (mail):
Also, if the opinion in Bean is to mean anything, I would argue that any foreign policy power the President possesses would have to yield in a Youngstown Steel type manner to what Congress funds. Otherwise the de-funding of an office would be meaningless.
9.16.2009 11:14am
Bob Dole (mail):
The problem is I can't think of anyone who would have standing to sue, due to the restrictive standing requirements. The only ones who would be able to deal with this would be congress by impeaching the president, as far as I can tell.
9.16.2009 11:23am
David M. Nieporent (www):
Given that Congress eventually has to approve payment for anything the President agrees to, even in cases where no formal treaty is entered, I fail to see how Congress doesn't have the power to forbid using tax monies to pay for certain travel.
Does Congress have the power to forbid using tax monies as part of the pardon process?
9.16.2009 11:24am
Allan (mail):
President Obama should not have signed the law if he was not going to follow it. He has veto power. He should use it.

Congress, if substantially upset, should institute impeachment proceedings.
9.16.2009 11:31am
Soronel Haetir (mail):

Does Congress have the power to forbid using tax monies as part of the pardon process?



Bean and the pardon power do make for an interesting case. Much as I dislike it, I do believe Congress could forbid the President from exercising the power in the same manner that the Secretary of Treasury is forbidden from personally handling the applications at issue in Bean.

If I recall correctly the opinion in Bean stated even the president is forbidden from processing the applications.
9.16.2009 11:32am
Steve:
This doesn't strike me as a particularly close question. If this sort of legislation is permissible, it's hard to see what's left of the President's power to conduct foreign policy.

There doesn't seem to be much case law on point, but the OLC's historical analysis is pretty persuasive.
9.16.2009 11:41am
Steve:
Much as I dislike it, I do believe Congress could forbid the President from exercising the power in the same manner that the Secretary of Treasury is forbidden from personally handling the applications at issue in Bean.

But in Bean, Congress was simply using the appropriations power to keep the Secretary from exercising a power that had been granted by Congress in the first place. The Executive Branch would have no authority to grant exceptions to the gun laws if Congress hadn't established that authority.

Using the appropriations power to take away a function expressly assigned to the Executive in the Constitution, like the pardon power, presents a different case.
9.16.2009 11:53am
Soronel Haetir (mail):
Steve,

Not that it has been enforced all that seriously, but I view the requirement that the President faithfully execute the laws as a huge check on presidential power. Basically anything that is not explicity permitted the president should be prohibitted by operation of that clause.

The Congress should in fact be able to direct all of the President's actions at their whim, so long as those actions fall within the enumerated powers of Congress. It is then up to Congress to enforce their will through impeachment, which is why it's a good thing that the hurdle for impeachment and conviction is so high.
9.16.2009 12:01pm
Soronel Haetir (mail):
I should say that I see both the faithful execution of the laws and commander in chief clauses as stating that the President is in fact the agent of Congress for carrying its directives into action.

My claim regarding the CinC may seem a little odd, but I see it as the logical fallout of Congress' role in setting rules for military activities.
9.16.2009 12:04pm
Seamus (mail):
So does 25 U.S.C. ยง71, which bars the negotiation of treaties with Indian tribes, unconstitutionally infringe on the president's treaty-making power under Article II?
9.16.2009 12:10pm
arbitraryaardvark (mail) (www):
The strings attached to the funds are unenforceable directly for separation of powers reasons. But now that the executive has used the funds in the prohibited way, congress, in the next budget, can delete those funds. I don't know much about the presidents ability to move funds around from one area to another. Both sides can engage in brinksmanship.
9.16.2009 12:27pm
MarkField (mail):

I should say that I see both the faithful execution of the laws and commander in chief clauses as stating that the President is in fact the agent of Congress for carrying its directives into action.


I agree with this, but I'm not sure I'd extend it so far as to interfere with the pardon power or the appointment power (both of which seem clearly designed to require Executive discretion). As another example, I don't think Congress can refuse to allocate funds for the principal officer of the executive departments to give an opinion in writing to the President upon demand (Art. 2, Sec. 2, cl. 1).

OTOH, I have no doubt whatsoever that Congress could de-fund ambassadors, consuls, etc., whether to particular countries or to all countries whatsoever. It seems to me well within Congressional power to impose such a restriction (uncommonly silly though I think the law is).

I say this without having read the memo; prior case law or practice could well be inconsistent with what I just said.
9.16.2009 12:55pm
Soronel Haetir (mail):
The really odd ball cases are unlikely to come up because they would indicate a complete failure of government.

An example that I think helps clarify my ideas here. It makes no sense to say that the President has the sole treaty making power, since it has to get ratified. Any President who tried to negotiate a treaty without taking into account what could actually get through the Senate is not performing the job correctly.

On this basis I do not see it being beyond Congress' authority to state (so long as it is limited to one legislative session) that no negotiation on a particular topic or with a particular party will take place. I make the legislative session requirement out of an understanding that legislatures cannot in general bind their successors.
9.16.2009 1:24pm
dirc:
Allan wrote:

President Obama should not have signed the law if he was not going to follow it. He has veto power. He should use it.

Allan, what do you think President Obama should do if Congress then passes the law over his veto? Should he feel bound by the portions that he thinks are unconstitutional, or should he disregard those portions?

If he should follow those (possibly unconstitutional) provisions, wouldn't that mean that the Executive has no role in determining the constitutionality of legislation?

If he should disregard the provisions, how is this different from signing the bill into law and then disregarding those same provisions?
9.16.2009 1:48pm
Steve:
I think the view that the President is obligated to veto a bill if there is even a sentence that is unconstitutional - as opposed to signing it and then declining to enforce the unconstitutional part - is absurdly formalistic.
9.16.2009 2:21pm
rarango (mail):
Mr. Obama seems to have discovered there are situations where he must act to provide future presidents the precedent to protect prerogatives of the executive branch irrespective of who is occupying it.

If congress has a problem, they can impeach him. Not very likely.
9.16.2009 3:23pm
mls (www):
Mark Field- I am not sure I understand your position. Congress can certainly refuse to fund particular diplomatic positions, but once the positions are created and filled, can it tell the diplomats that they cannot meet with terrorists?
9.16.2009 6:51pm
MarkField (mail):

Mark Field- I am not sure I understand your position. Congress can certainly refuse to fund particular diplomatic positions, but once the positions are created and filled, can it tell the diplomats that they cannot meet with terrorists?


I have no doubt that Congress can do so overseas. Here in the US it might conflict with presidential power to receive ambassadors, etc.
9.16.2009 7:24pm
mls (www):
I have no doubt that Congress can do so overseas. Here in the US it might conflict with presidential power to receive ambassadors, etc.

So it matters whether the UN meetings are held in New York or Paris?
9.16.2009 7:39pm
Bob from Ohio (mail):
So, is Obama acting illegally or not, liberals?
9.16.2009 8:28pm
ReaderY:
I think the counsel is right on this one. Separation of powers matters, and diplomacy is an executive power. Congress can't prohibit the President from conducting diplomacy or dictate the countries or entities he can conduct diplomacy with. Congress can refuse to fund the State Department, but it can't attach conditions to the appropriation of State Department salaries dictating restrictions on who diplomats can talk to or what they can discuss. These are matters of executive privilege. I strongly doubt Congress has the power to prohibit the President from talking to anyone as a general matter, but diplomacy is even more clear-cut.
9.16.2009 11:59pm

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