Constitutional Issues Raised by Commerce, Justice and State Appropriations Bill

Constitutional Issues Raised by Commerce, Justice, and

State Appropriations Bill

A provision prohibiting the use of appropriated funds for United Nations peacekeeping missions

involving the use of United States Armed Forces under the command of a foreign national unconsti-

tutionally constrains the President’s authority as Commander in Chief and his authority over foreign

affairs.

A provision prohibiting the use of appropriated funds for cooperation with, assistance to, or other

support for the International Criminal Court would be unconstitutional insofar as it would prohibit

the President from providing support and assistance to the ICC under any and all circumstances, but

it can be applied in a manner consistent with the President’s constitutional authority in the area of

foreign affairs.

November 28, 2001

MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

This memorandum responds to your request for our views on four provisions in

H.R. 2500, the Departments of Commerce, Justice, and State, the Judiciary, and

Related Agencies Appropriations Bill for Fiscal Year 2002, 107th Cong. (2001)

(“CJS appropriations bill”): sections 609 (participation in United Nations peace-

keeping), 612 (Department of Justice anti-terrorism restructuring), 626 (removing

foreign sovereign immunity in pending Iran hostages litigation), and 630 (support

for International Criminal Court).

We conclude that section 626 does not raise constitutional concerns, but that

section 609 unconstitutionally constrains the President’s Commander-in-Chief and

foreign affairs authority, section 612 represents the sort of legislative microman-

agement of the Executive Branch that should be resisted on separation of powers

policy grounds, and application of section 630 in certain circumstances would

unconstitutionally interfere with the President’s foreign affairs authority.

I. Section 609

Section 609 provides that:

None of the funds made available by this Act may be used for any

United Nations undertaking when it is made known to the Federal

official having authority to obligate or expend such funds: (1) that

the United Nations undertaking is a peacekeeping mission; (2) that

such undertaking will involve United States Armed Forces under the

command or operational control of a foreign national; and (3) that

the President’s military advisors have not submitted to the President

a recommendation that such involvement is in the national security

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interests of the United States and the President has not submitted to

the Congress such a recommendation.

Section 609 thus prohibits the use of appropriated funds (by entities receiving

appropriations under the CJS appropriations bill) for the participation of United

States Armed Forces in a United Nations peacekeeping mission under foreign

command, unless the President’s military advisors have recommended such

involvement and the President has submitted such recommendation to Congress.

This provision first appeared in CJS appropriations bills in 1996. We have

consistently taken the position that it is unconstitutional and have submitted

signing statement language saying that the provision unconstitutionally constrains

the President’s Commander-in-Chief authority and that the President will apply it

consistent with his constitutional responsibilities.

Our position has been based on the analysis that it is unconstitutional for Con-

gress to place conditions, whether substantive or procedural, on the President’s

exercise of his constitutional authority—as Commander in Chief and with respect

to the conduct of diplomacy—to order United States military participation in an

United Nations peacekeeping operation. Specifically, it is unconstitutional to

require the President to satisfy the requirements set forth in section 609: that the

President’s military advisors have recommended that the involvement in the

peacekeeping operation is in the national security interests of the United States and

that the recommendation has been submitted to Congress.

Our analysis starts with the constitutional principle that responsibility for the

conduct of foreign affairs and for protecting the national security are “‘central’

Presidential domains.” Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The

President’s constitutional responsibilities in both these areas flow from the specific

grants of authority in Article II making him Chief Executive, U.S. Const. art. II,

§ 1, cl. 1, and Commander in Chief, id. art. II, § 2, cl.1, see Nixon v. Fitzgerald,

457 U.S. 731, 749-50 (1982), as well as from the “unique position” that the

President occupies in the constitutional structure, id. at 749. The President’s

exclusive authority to conduct the Nation’s diplomatic relations with other States

derives primarily from the Vesting Clause and the Commander-in-Chief Clause,

and is buttressed by the President’s more specific powers to “make Treaties,” U.S.

Const. art. II, § 2, cl. 2; to “appoint Ambassadors . . . and Consuls,” id.; and to

“receive Ambassadors and other public Ministers,” id. art. II, § 3.

The Supreme Court has consistently “recognized ‘the generally accepted view

that foreign policy [is] the province and responsibility of the Executive.’” Dep’t of

Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 293-

94 (1981)). See also Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (President is

the nation’s “guiding organ in the conduct of our foreign affairs”); Ex parte

Hennen, 38 U.S. (13 Pet.) 230, 235 (1839) (“As the executive magistrate of the

country, he is the only functionary intrusted with the foreign relations of the

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nation.”); Secretary of State Thomas Jefferson, Opinion on the Question Whether

the Senate Has the Right to Negative the Grade of Persons Appointed by the

Executive to Fill Foreign Missions (Apr. 24, 1790), in 5 The Writings of Thomas

Jefferson 161 (Paul L. Ford ed., 1895); The President’s Compliance with the

“Timely Notification” Requirement of Section 501(b) of the National Security Act,

10 Op. O.L.C. 159, 162 (1986) (“The presumptively exclusive authority of the

President in foreign affairs was asserted at the outset by George Washington and

acknowledged by the First Congress.”).

It is vital to the President’s ability to conduct diplomatic relations that he

should have the authority to deploy United States Armed Forces in the internation-

al arena, and be able to threaten credibly to do so. 1 Furthermore, the authority to

deploy military force in the defense of the security and interests of the United

States is expressly placed under the President’s authority by the Commander-in-

Chief Clause, U.S. Const. art. II, § 2, cl. 1. The “inherent powers” of the President

as Commander in Chief are “clearly extensive.” Loving v. United States, 517 U.S.

748, 776 (1996) (Scalia, J., concurring in part and concurring in the judgment). As

Attorney General, later Justice, Robert Jackson explained:

Article II, section 2, of the Constitution provides that the Presi-

dent “shall be Commander in Chief of the Army and Navy of the

United States.” By virtue of this constitutional office he has supreme

command over the land and naval forces of the country and may

order them to perform such military duties as, in his opinion, are

necessary or appropriate for the defense of the United States. These

powers exist in time of peace as well as in time of war. . . .

Thus the President’s responsibility as Commander in Chief

embraces the authority to command and direct the armed forces in

their immediate movements and operations designed to protect the

security and effectuate the defense of the United States. . . . [T]his

authority undoubtedly includes the power to dispose of troops and

equipment in such manner and on such duties as best to promote the

safety of the country.

1

Longstanding historical practice supports the claim of presidential authority to deploy the armed

forces as a tool of foreign policy. See, e.g., Memorandum on the Authority of the President to Repel the

Attack in Korea, 23 Dep’t of State Bull. 173, 174 (1950) (historical practice supports use of United

States forces “in the broad interests of American foreign policy”). The President has “‘authority to

commit troops overseas without specific prior Congressional approval “on missions of good will or

rescue, or for the purpose of protecting American lives or property or American interests.”’” The

President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations

Supporting Them, 25 Op. O.L.C. 188, 197 (2001) (quoting Authority to Use United States Military

Forces in Somalia, 16 Op. O.L.C. 6, 6 (1992) (Barr, A.G.) (quoting Training of British Flying Students

in the United States, 40 Op. Att’y Gen. 58, 62 (1941) (Jackson, A.G.))).

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Training of British Flying Students in the United States, 40 Op. Att’y Gen. 58, 61-

62 (1941).

Congress cannot, in the manner set forth in section 609, place impediments on

the President’s ability to deploy United States forces abroad for purposes he deems

vital to the national security. 2 As we have noted, long historical practice supports

the legitimacy of the President’s deploying military forces abroad in order to

protect the nation’s security and to uphold its interests. Moreover, as Commander

in Chief, the President must be able to determine, not only whether United States

Armed Forces are to be deployed abroad, but also under what conditions they are

to be deployed. Thus, the President has the authority to decide, within applicable

constitutional limits, what command structures the forces deployed are to have,

what tactics they are to adopt, what military objectives they are to pursue, and—

most relevantly here—whether and how they are to cooperate with foreign or

international forces in the same theater of operations. Such decisions implicate

both military and diplomatic judgments which the President alone is constitution-

ally empowered to make. Taking account of military needs and of foreign

relations, the President may well conclude, in particular circumstances, that it

serves the nation’s security and foreign policy best to deploy our forces as part of a

United Nations operation, rather than unilaterally (or not at all). 3 Congress is

without power to prevent the President from acting on that conclusion.

The fact that in section 609 Congress is placing a condition on the President’s

exercise of his constitutional authority indirectly, through the appropriations

process, rather than as a direct mandate, does not change our conclusion. “Broad

as the spending power of the Legislative Branch undoubtedly is, it is clear that

Congress may not deploy it to accomplish unconstitutional ends.” Presidential

Certification Regarding the Provision of Documents to the House of Representa-

tives Under the Mexican Debt Disclosure Act, 20 Op. O.L.C. 253, 266 (1996). Of

particular relevance in the present context is the principle that “‘Congress cannot

use the appropriations power to control a Presidential power that is beyond its

direct control.’” Id. (citation omitted).

The Executive Branch’s insistence on this principle is longstanding. In 1860,

President Buchanan issued a signing statement denying Congress’s power to

interfere with his authority to issue orders to military officers through the device of

2

None of Congress’s enumerated powers in Article I appears to provide a basis for limiting, in the

manner proposed by the bill, the authority of the President to make the deployments in question. We do

not see, for example, how the proposed prohibition on deployments could fairly be described as an

exercise of Congress’s power to “declare War,” U.S. Const. art. I, § 8, cl. 11; of the power to “raise and

support Armies,” id. cl. 12; or to “make Rules for the Government and Regulation of the land and naval

Forces,” id. cl. 14.

3

See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673,

1707-08 (2000) (explaining why multilateralism was preferable to unilateralism from the United States’

point of view in responding to crisis in Kosovo).

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a condition on the availability of appropriated funds. The President therefore

construed the statute at issue not to work such an interference. See Signing

Statement of President Buchanan to the House of Representatives (1860),

reprinted in 7 A Compilation of the Messages and Papers of the Presidents 3128

(James D. Richardson ed., 1897). The views expressed in the signing statement

were subsequently reviewed and endorsed by an opinion the President requested

from Attorney General Black. The Attorney General wrote that “[i]f Congress had

really intended to [interfere with the President’s command authority], that purpose

could not be accomplished in this indirect manner any more than if it was attempt-

ed directly.” Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860). Since

that time, the Executive has consistently denied the binding effect of appropria-

tions conditions that violate the constitutional separation of powers or usurp the

President’s constitutional authority.

Finally, we do not think that section 609’s authorization to participate in a

peacekeeping operation if the President’s military advisors have recommended the

participation and the recommendation has been submitted to Congress saves

section 609 from unconstitutionality. Congress can exempt the President from a

legislative restriction only if it has the authority to impose that restriction in the

first place. For the reasons stated above, we do not think Congress has such power.

II. Section 612

Section 612 addresses the subject of the organization of the Department of

Justice with respect to combating terrorism. Subsection (a) of section 612 requires

the President to

submit as part of the fiscal year 2003 budget to Congress a proposal

to restructure the Department of Justice to include a coordinator of

Department of Justice activities relating to combating domestic ter-

rorism, including State and local grant programs subject to the

authority of the Attorney General, and who will serve as the Depart-

ment of Justice representative at interagency meetings on combating

terrorism below the Cabinet level.

Viewed in isolation, subsection (a) appears to require the President to submit a

legislative proposal to Congress, which would raise constitutional concerns under

the Recommendations Clause, which provides that the President “shall from time

to time . . . recommend to [Congress] . . . such Measures as he shall judge

necessary and expedient.” U.S. Const. art. II, § 3. Under the Recommendations

Clause, Congress cannot compel the President to submit legislative proposals to

Congress.

When subsection (a) is read in conjunction with the remainder of section 612,

however, it is apparent that section 612 does not require the President to submit a

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legislative proposal. Rather, he is being given the choice of submitting a legisla-

tive proposal under subsection (a) or acquiescing in the congressional proposal set

forth in the remainder of section 612. Subsection (b) provides that “[i]f the

President does not submit a proposal as described in subsection (a), or if Congress

fails to enact legislation establishing a new position described in subsection (a), by

June 30, 2002, then effective on such date subsections (c) through (f) [the

remaining provisions of section 612] shall take effect.” Those remaining subsec-

tions establish the position of Deputy Attorney General for Combating Domestic

Terrorism.

Thus, the legislative proposal provision of subsection (a) is not a mandatory

requirement for the President, but is merely part of a mechanism created by the

entirety of section 612, under which the congressional enactment set forth in

subsections (c) through (f) will go into effect if the President does not propose an

alternative approach to restructuring the Department of Justice to deal with

terrorism. The President is not required by section 612(a) to submit legislation to

Congress because he has the choice of accepting the congressional approach set

forth in the rest of section 612.

Although we do not believe that section 612 violates the Recommendations

Clause, it does represent the sort of legislative micromanagement of the Executive

Branch that we have objected to in the past. See Common Legislative Encroach-

ments on Executive Branch Authority, 13 Op. O.L.C. 248, 253-54 (1989) (stating

that “Congress’ recent interest in determining the precise organizational structure

of executive branch departments . . . seriously threatens the executive branch’s

ability to effectively and efficiently fulfill its obligations”). By requiring that a

particular executive officer coordinate specific policy and executive decisions,

section 612 infringes upon the President’s constitutional authority to direct the

activities of the Executive Branch. While Congress has broad authority to

determine what laws the President must enforce, we do not believe that Congress

has an entirely free hand in determining how the Executive Branch must be

organized to enforce those laws. Indeed, if it did, the Executive Branch would be

substantially controlled and administered by the Legislative Branch. Thus, on

separation of powers policy grounds, we believe that Congress’s effort to restruc-

ture the Department of Justice should be vigorously resisted.

III. Section 626

Subsection (c) of section 626 would amend provisions of the Foreign Sovereign

Immunities Act (“FSIA”) that establish the circumstances in which foreign states

are not immune from the jurisdiction of the courts of the United States in civil

actions brought against them. Section 626(c) would amend section 1605(a)(7)(A)

of the FSIA by specifying that any “act . . . related to” a designated case against

the Government of Iran presently pending in the U.S. District Court for the District

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of Columbia is not protected by foreign sovereign immunity under the FSIA. The

case designated in the provision is Roeder v. Islamic Republic of Iran,

No. 1:00CV03110(ESG) (D.D.C.). That case, we are advised, is based upon the

Iranian Government’s actions in connection with the detention and mistreatment

of hostages in the U.S. Embassy in Teheran in 1979. The Civil Division advises

that a default judgment has been entered against Iran in that case and proceedings

to assess damages remain to be held in the U.S. District Court. The United States

has filed a motion to intervene and a motion to vacate the judgment, which

motions are presently pending.

We do not believe section 626(c) raises constitutional concerns. This provision

would merely establish by statute that Iran does not have sovereign immunity in

U.S. courts with respect to the acts related to the Iran hostage crisis that form the

basis of the claim in Roeder—a claim that is the subject of ongoing litigation and

which has not been reduced to final judgment. Nothing in the Constitution bars

Congress from enacting such legislation. In particular, the provision does not

violate the principles of the Supreme Court’s precedents in Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211 (1995), or United States v. Klein, 80 U.S. (13 Wall.) 128

(1871). Under Plaut, Congress may not enact legislation that requires federal

courts to reopen or otherwise alter final judgments. Because the Roeder case has

not been reduced to final judgment, the Plaut principle is inapplicable. Even if the

default judgment in question were a final judgment at this stage, section 626(c)

would still not appear to violate Plaut because (by denying sovereign immunity) it

appears to reinforce, rather than reopen, the validity of the judgment against Iran.

Klein, on the other hand, is sometimes cited for the general proposition that

Congress may not prescribe to the courts a rule of decision to dictate the court’s

interpretation of the law in a particular case. Klein does not, however, prohibit

Congress from changing the underlying law that governs in a pending case, even if

that case was still pending when the change in the law was made. As explained by

the Supreme Court in Plaut, “[w]hatever the precise scope of Klein, . . . later

decisions have made clear that its prohibition does not take hold when Congress

‘amend[s] applicable law.’” 514 U.S. at 218 (quoting Robertson v. Seattle

Audubon Soc., 503 U.S. 429, 441 (1992)).

In addition, we do not believe that section 626(c) is constitutionally objectiona-

ble as an improper congressional interference with the President’s foreign affairs

powers. The Supreme Court has firmly upheld the constitutionality of the FSIA’s

regulation of foreign sovereign immunity as a valid exercise of Congress’s power

to regulate foreign commerce and as falling within the proper bounds of Con-

gress’s Article III powers as well. See Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480, 496-97 (1983). Although the provisions of section 626(c) are very

specific in their coverage, we cannot say that they exceed the proper scope of

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legislative regulation upheld by the courts in granting or withholding sovereign

immunity to foreign states in the courts of the United States. 4

IV. Section 630

Section 630 provides that “[n]one of the funds appropriated or otherwise made

available by this Act shall be available for cooperation with, or assistance or other

support to, the International Criminal Court [(“ICC”)] or [its] Preparatory

Commission [(“Commission”)].” We believe that section 630 would be unconsti-

tutional to the extent that it would prohibit the President, through his subordinates,

from providing support and assistance to the ICC or the Commission under any

and all circumstances. Therefore, we have submitted signing statement language

saying that the President will apply this provision consistent with his constitutional

authority in the area of foreign affairs.

Section 630 can be given effect consistent with the Constitution. Prohibiting

technical or ministerial cooperation with or assistance to the ICC or the Commis-

sion would generally not interfere with the President’s exercise of his constitution-

al authority, and therefore as applied to those circumstances section 630 would not

be constitutionally problematic.

Serious as-applied constitutional difficulties would arise under section 630,

however, if its prohibition were to apply to certain diplomatic activities or

substantive positions the President might take with respect to or before the ICC or

the Commission. The Constitution commits to the President the primary responsi-

bility for conducting the foreign relations of the United States, see, e.g., Dep’t of

Navy v. Egan, 484 U.S. at 529 (the Supreme Court has “recognized ‘the generally

accepted view that foreign policy was the province and responsibility of the

Executive’”) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill

of London, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976) (“[T]he

conduct of [foreign policy] is committed primarily to the Executive Branch.”), and

the exclusive responsibility for formulating the position of the United States in

international fora and for conducting negotiations with foreign nations, see, e.g.,

United States v. Louisiana, 363 U.S. 1, 35 (1960) (the President is “the constitu-

tional representative of the United States in its dealings with foreign nations”).

4

Two other issues have been raised by section 626. Subsections (a) and (b) purport to require the

President to submit to Congress a detailed legislative proposal dictated by Congress and thus raise clear

concerns under the Recommendations Clause. This issue is straightforward, and we have already

addressed it in our comments to the Office of Management and Budget, which have included

recommended language for the President’s signing statement. In addition, the National Security

Council staff has submitted signing statement language indicating that the Executive Branch will act,

and encourage the courts to act, with regard to subsection (c)’s removal of Iran’s sovereign immunity in

the pending litigation, in a manner consistent with the obligations of the United States under the 1981

Algiers Accords that achieved the release of the hostages. This Office has cleared that language.

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Thus, there might well be circumstances in which the President finds it neces-

sary, in the exercise of his constitutional responsibilities, to order an executive

agency to provide support or assistance to the ICC or the Commission. For

example, the President might find that it served overriding United States national

security and foreign policy interests to assist the ICC in investigating, capturing, or

prosecuting a prominent foreign individual whose activities threaten American

lives and interests. Failure to assist the ICC in such efforts by, for example,

supplying intelligence information on the whereabouts or activities of such an

individual could do serious and lasting harm to United States security and its

international standing.

It will therefore be important in applying section 630 to interpret the terms

“cooperation,” “assistance,” and “support” in a way that is consistent with the

understanding that the provision cannot constitutionally limit the President’s

exercise of his constitutional responsibilities. Properly understood, however, these

terms should not unconstitutionally constrain the President. For example, in light

of the President’s exclusive constitutional responsibilities for the conduct of

diplomacy, we would not interpret the Executive Branch’s participation in

negotiations concerning the ICC to constitute cooperation, assistance, or support.

Similarly, we do not believe the section 630 prohibition could constitutionally

be applied to the sharing of intelligence information with the ICC concerning an

alleged terrorist who has been brought before the ICC. As Chief Executive and

Commander in Chief, the President has independent authority to gather intelli-

gence and to control access to national security information. The Supreme Court

has specifically recognized the President’s constitutional authority to control the

disclosure of classified information:

The President . . . is the “Commander in Chief of the Army and

Navy of the United States.” . . . His authority to classify and control

access to information bearing on national security . . . flows primari-

ly from this constitutional investment of power in the President and

exists quite apart from any explicit congressional grant. . . . This

Court has recognized the Government’s “compelling interest” in

withholding national security information from unauthorized persons

in the course of executive business. . . . The authority to protect such

information falls on the President as head of the Executive Branch

and as Commander in Chief.

Dep’t of Navy v. Egan, 484 U.S. at 527. See also New York Times Co. v. United

States, 403 U.S. 713, 728-29 (1971) (Stewart, J., concurring) (“If the Constitution

gives the Executive a large degree of unshared power in the conduct of foreign

affairs and the maintenance of our national defense, then under the Constitution

the Executive must have the largely unshared duty to determine and preserve the

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degree of internal security necessary to exercise that power successfully.”).

Implicit in the President’s authority to gather such information and to control

access to it is the authority to disclose it to foreign nations or to international

bodies if, in the exercise of his diplomatic responsibilities, he finds it proper to do

so.

The President may well find it necessary or advisable in particular circumstanc-

es to disclose classified information to foreign nations or to international bodies in

order to promote this nation’s diplomatic objectives or to guard its interests and

security. Such disclosure is a legitimate—and often, an unavoidable—exercise of

the President’s diplomatic and military responsibilities. For example, the President

may find it necessary to disclose to a foreign government classified information

about the identity or whereabouts of a foreign terrorist, or about the extent to

which that government’s security has been compromised by a third country’s

intelligence operations. Or the President may need to warn a potential enemy

nation (even if the information disclosed is classified) about United States military

planning and capabilities, in order to deter that country from acts of aggression.

JOHN C. YOO

Deputy Assistant Attorney General

Office of Legal Counsel

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