Monday, October 10, 2011
The Office of Legal Counsel opined last month that a provision in an appropriations act that purported to prevent the Office of Science and Technology Policy from using appropriated funds to collaborate with the Chinese was unconstitutional.
Recall that President Obama issued a signing statement on the bill (taking issue with the restrictions on transfer of Guantanamo detainees and restrictions on appointment of presidential advisers), but he wrote nothing about the restrictions on collaborating with the Chinese. Nothing requires the President to preserve a constitutional objection in a signing statement; and failure to do so certainly doesn't constitute acquiescence to its constitutionality. Still, the OLC analysis came a little late. It seems that if Presidents are going to object to the constitutionality of a bill that they nevertheless sign, the better practice is to object early and publicly, in the signing statement, and not only later, through a comparatively less public OLC opinion.
The provision, Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, says that
None of the funds made available by this division may be used for . . . [the OSTP] to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.
The OLC wrote that this interferes with the President's exclusive authority to "conduct . . . negotiations with foreign governments." The memo said that Congress "possess significant Article I powers in the areas of foreign affairs," but that in foreign negotiations "it is imperative that the United States speak with one voice" and that "[t]he Constitution provides that that one voice is the President's." Op. at 4.
The OLC also wrote that Congress could use its power of the purse to defund OSTP. But once having appropriated funds, it can't "impair the President's conduct of foreign affairs by imposing restrictions on expenditures that serve diplomatic purposes." Op. at 6. The memo said, however, that some restrictions--those on activities "that are neither diplomatic in character nor otherwise within the exclusive constitutional authority of the President"--did not run into the President's Article II powers.