              Issues Raised by Provisions Directing Issuance of
                      Official or Diplomatic Passports



S ectio n 129(e) o f Pub. L. No. 102-138 an d section 503 o f Pub. L . No. 102-140 are unconstitu­
    tio n al to th e ex ten t th at they purport to lim it the P resident’s ability to issue m ore than one
    o fficial o r d ip lo m atic passport to U n ited S tates governm ent personnel.


T h e sin g le-p assp o rt requirem ents set fo rth in section 129(e) and section 503 are severable from
     th e re m a in d e r o f the statutes in w hich they appear.


T h e P re sid en t is co n stitutionally authorized to decline to enforce the portions o f section 129(e)
     an d sectio n 503 th at purport to lim it the issuance o f official and diplom atic passports.


                                                                                    January 17, 1992

          M   em orandum         O   p in io n f o r t h e   C ou n sel   to the   P r e s id e n t


    This memorandum responds to your request for our opinion on several
issues raised by the nearly identical provisions of section 129(e) of the For­
eign Relations Authorization A ct for Fiscal Years 1992 and 1993, Pub. L.
No. 102-138, 105 Stat. 647, 662 (1991), and section 503 of Departments of
Commerce, Justice and State, the Judiciary, and Related Agencies Appro­
priations Act, 1992, Pub. L. No. 102-140, 105 Stat. 782, 820 (1991), an act
making appropriations for the State Department and other agencies. Spe­
cifically, you asked whether these provisions are unconstitutional to the extent
that they purport to prohibit the issuance of more than one official or diplo­
m atic passport to United States government officials, whether they are
severable from the remainder o f the two bills, and whether the President
may decline to enforce them.1 For the reasons explained below, we con­
clude that the relevant portions of section 129(e) and section 503 are
unconstitutional to the extent that they limit the issuance o f official and
diplomatic passports and that those sections are severable from the remainder of
the two statutes. Under the circumstances, we further conclude that the Presi­
dent is constitutionally authorized to decline to enforce these provisions.


  'M em orandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel,
from C. Boyden Gray, Counsel to the President (Oct. 23, 1991) (“Opinion Request” ).

                                                      18
                                                      I.

    Section 129 of Pub. L. No. 102-138 provides in part:

            (e)(1) REQUIREMENT OF SINGLE PASSPORT. — The
          Secretary of State shall not issue more than one official or
          diplomatic passport to any official of the United States Gov­
          ernment for the purpose of enabling that official to acquiesce
          in or comply with the policy of the majority of [the] Arab
          League nations of rejecting passports of, or denying entrance
          visas to, persons whose passport or other documents reflects
          that the person has visited Israel.

            (2) IMPLEMENTATION OF POLICY OF NONCOMPLI­
          ANCE.— The Secretary of State shall promulgate such rules
          and regulations as are necessary to ensure that officials of the
          United States Government do not comply with, or acquiesce
          in, the policy of the majority of Arab League nations o f re­
          jecting passports of, or denying entrance visas to, persons
          whose passport or other documents reflect that the person has
          visited Israel.2
   The relevant portion of section 503 of Pub. L. No. 102-140 is nearly
identical:
          [Ninety] days after the enactment of this Act, none of the
          funds provided in this Act shall be used by the Department of
          State to issue more than one official or diplomatic passport to
          any United States Government employee for the purpose of
          enabling that employee to acquiesce in or comply with the
          policy of the majority of Arab league nations of rejecting pass­
          ports of, or denying entrance visas to, persons whose passports
          or other documents reflect that that person has visited Israel.3

   2 105 Stat. at 662. By virtue of section 129(e)(3)(A), section 129(e) is effective January 26, 1992.
   Because you have requested our opinion only as to those provisions that “purport to forbid the issu­
ance o f more than one official or diplomatic passport to U.S. officials for the purpose o f enabling those
officials to acquiesce in” the Arab League policy described in section 129, we have so lim ited our review
and will for ease o f reference refer to the operative portion of section 129, section 129(e). See Opinion
Request.
   We note, however, that section 129 also prohibits issuance o f “any passport that is designated for
travel only to Israel.” Pub. L. No. 102-138, § 129(d)(1), 105 Stat. at 661. To the extent that this
prohibition applies to official and diplomatic passports, it suffers from the same constitutional defects
as the prohibition on multiple passports.
  1 105 Stat. at 820. Like section 129 of Pub. L. No. 102-138, section 503 also prohibits the issuance of
Israel-only passports: “None of the funds provided in this Act shall be used by the Departm ent o f State
to issue any passport that is designated for travel only to Isra e l. . . . ” Id. O ur discussion of section 503
is limited to the provision that forbids the issuance of more than one official or diplomatic passport to
U nited States government officials. See supra note 2. References to section 503 in this m emorandum
should be understood to be so limited.

                                                      19
    These provisions purport to effect a change in the State Department’s
 current practice in issuing official and diplomatic passports to government
 personnel sent to the Middle East, which is described in the conference
 report on Pub. L. No. 102-138: “Officials o f the U.S. Government traveling
 in the Middle East are, as a general practice, issued two passports so that
 they can travel to Israel and to Arab countries in compliance with the pass­
 port and visa policy of the majority of Arab League nations.” H.R. Conf. Rep.
 No. 238, 102d Cong., 1st Sess. 107 (1991). You have asked our opinion whether
legislation banning continuation o f this practice is unconstitutional.
    The State Department has concluded that section 129(e) and section 503
 would unconstitutionally intrude on the President’s authority to conduct di­
plomacy on behalf o f the United States.4 In the State Department’s view,
these provisions would “directly interfere with the President’s ability to send
his diplomats abroad to negotiate with foreign governments,” id. at 7, and
“interfere with the discretion and flexibility needed by the President to carry
out the exclusively executive function of foreign diplomacy,” id. at 12.5 Ac­
co rd in g ly , the State D epartm ent concludes that these provisions are
unconstitutional. Id. at 14.
    As part o f its analysis, the State Department “examined a variety o f pos­
sibilities for carrying out diplomatic functions without the issuance of more
than one official or diplomatic passport,” but it was “unable to identify a
satisfactory alternative in a significant number of cases that would be af­
fected by this legislation.” Id. at 5. These alternatives included: (1) “travelling
to either Israel or Arab League nations without presenting a passport;” (2)
“ask[ing] Israel not to stamp the passports of U.S. officials;” (3) “seekfing]
advance permission from the receiving Arab country every time a U.S. offi­
cial would be entering that country with a passport reflecting travel to Israel;”
(4) “cancelling a diplomatic or official passport that reflected travel to Israel
whenever the holder needed to travel to an Arab League nation, and reissuing
a new passport;” and (5) “arranging negotiations so that travel to Israel fol­
lowed travel to the Arab countries.” Id. at 5-6. The State Department rejected
all o f these alternatives.6 After reviewing these options, it concluded:


   4 Memorandum for Timothy E. Flanigan, Acting Assistant Attorney General, Office o f Legal Counsel, from
Jamison M. Selby, Deputy Legal Advisei, Department of State (Jan. 3,1992) ("Selby Memorandum").
   ’ T he S tate D epartm ent also disputes C ongress’s view, expressed in the text o f section 129(e) and
section 503, that issuing m ultiple passports to accomm odate travel to the M iddle East constitutes a
practice o f “acquiesc[ing] in” or “complyfing] with" the Arab League policy. Selby M em orandum at
2. In S tate’s view, the issuance o f multiple passports is “rather a challenge to [that policy], because the
ru les o f the boycott forbid the use of second passports to evade the policy.” Id. Nevertheless, the State
D epartm ent recognizes that “Congress considers the issuance o f second passports as com pliance with
the A rab L eague policy.” Id.
   6O ption (1) was rejected because travel w ithout a passport “would probably not be permitted by receiv­
ing states, would adversely impact U.S. bilateral relations in the region, and, if permitted, would expose
U.S. officials to unacceptable personal risk.” Selby M emorandum at 6. Option (2) was rejected because
“even to propose it could adversely affect our relations with Israel, and, in any event, any such request would
likely be rejected by Israel." Id. Option (3) w as unacceptable because it “would put our diplomatic travel at

                                                 Continued

                                                    20
          Thus, in order to carry out [the single-passport requirement] in
          all cases, the President would have to make the abolition of
          the Arab League passport policy the first item on his negotiat­
          ing agenda and succeed in having that policy abolished before
          proceeding with substantive negotiations of great importance
          to all parties concerned. . . . [W]e believe that such an effort
          would not succeed at this time.

Id. We defer to the State Department’s expertise with respect to the practi­
cal effects of section 129(e) and 503 and concur in its legal conclusions.

                                                  II.

   The necessary background for our analysis of the particular issues pre­
sented here is the well-settled recognition of the President’s broad authority
over the Nation’s foreign affairs. That authority flows from his position as
head of the unitary Executive and as Commander-in-Chief. See, e.g., U.S.
Const, art. II, §§ 1-3; Haig v. Agee, 453 U.S. 280, 291-92 (1981); U nited
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936). In
addition, Section 2 of Article II of the Constitution specifically grants the
President the “Power . . . to make Treaties” and to “appoint Ambassadors,
other public Ministers and Consuls.” These constitutional provisions autho­
rize the President to determine the form and manner in which the United
States will maintain relations with foreign nations and to direct the negotiation
of treaties and agreements with them. See Issues Raised by Foreign Relations
Authorization Bill, 14 Op. O.L.C. 37 (1990) (“Barr Memorandum”).

   In exercising the “federal power over external affairs,” the President is
not subject to the interference of Congress:

          [T]he President alone has the power to speak or listen as a
          representative of the nation. He makes treaties with the ad­
          vice and consent of the Senate; but he alone negotiates. Into
          the field of negotiation the Senate cannot intrude; and Congress
          itself is powerless to invade it. As [John] Marshall said in his
          great argument of March 7, 1800, in the House of Representa­
          tives, “The President is the sole organ of the nation in its external
          relations, and its sole representative with foreign nations.”


   ‘ (....continued)
the pleasure o f Arab governments.” Id. The State Department concluded that option (4) would cause
“ logistical problems" and might be viewed as inconsistent with the legislation. Id. Finally, option (S)
was rejected because it would be “unacceptable to Israel" and because it would “only resolve the prob­
lem for a single trip.” Id. More importantly, “it would be impossible in complex negotiations involving
rapid, repeated travel between Israel and Arab countries.” Id.

                                                  21
Curtiss-W right, 299 U.S. at 319 (quoting 10 Annals of Cong. 613 (1800))
(emphasis in original). In other words, the President possesses “very deli­
cate, plenary and exclusive power . . . as the sole organ of the federal
government in the field of international relations.” Id. at 320. See also Barr
M emorandum, 14 Op. O.L.C. at 38-39.

  The President himself emphasized these principles in his signing state­
ment on Pub. L. No. 102-138:

            Article II o f the Constitution confers the Executive power
        of the United States on the President alone. Executive power
        includes the authority to receive and appoint ambassadors and
        to conduct diplomacy. Thus, under our system of government,
        all decisions concerning the conduct of negotiations with for­
        eign governments are within the exclusive control o f the
        President. . . .

           The Constitution . . . vests exclusive authority in the Presi­
        dent to control the timing and substance of negotiations with
        foreign governments and to choose the officials who will ne­
        gotiate on behalf of the United States.

Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992
and 1993, II Pub. Papers 1344 (Oct. 28, 1991) (“Presidential Signing Statement”).
   From the Executive’s plenary authority to conduct the Nation’s foreign
affairs flow a number of specific executive powers that are of particular
relevance to the issue at hand. These include control over the issuance of
passports, power to determine the content of communications with foreign
governments, authority to conduct diplomacy, and authority to define the
content of foreign policy. As we explain in more detail below, we conclude
that the infringement on these powers worked by section 129(e) and section
503 would be unconstitutional.
   First, these provisions conflict with the long-accepted principle that the
President, through delegates o f his choosing, has authority over issuance of
passports for reasons of foreign policy or national security. Prior to the enact­
ment o f the first passport legislation, it was generally understood that the

       issuance of a passport was committed to the sole discretion of
       the Executive and that the Executive would exercise this power
       in the interests of the national security and foreign policy of
       the United States. This derived from the generally accepted
       view that foreign policy was the province and responsibility of
       the Executive.

H aig, 453 U.S. at 293.
                                       22
    From the outset, “Congress endorsed not only the underlying premise o f
Executive authority in the areas of foreign policy and national security, but
also its specific application to the subject of passports.” Id. at 294. In the
earliest passport statutes, Congress expressly recognized the Executive’s au­
thority in that regard. See, e.g.. Act of Feb. 4, 1815, ch. 31, § 10, 3 Stat.
195, 199 (prohibiting travel to enemy country without passport issued by
officer “authorized by the President”). Passport legislation enacted in 1856,
which authorized the Secretary of State to grant and issue passports “under
such rules as the President shall designate and prescribe,” reinforced the
established power of the Executive in this area. See Haig, 453 U.S. at 294
(citing Act of Aug. 18, 1856, ch. 127, § 23, 11 Stat. 52, 60). As noted by the
1960 Congress, the 1856 Act

       merely confirmed an authority already possessed and exer­
       cised by the Secretary of State. . .. This authority was ancillary
       to his broader authority to protect American citizens in for­
       eign countries and was necessarily incident to his general
       authority to conduct the foreign affairs of the United States
       under the Chief Executive.

Staff of Senate Comm, on Government Operations, 86th Cong., 2d Sess.,
Reorganization o f the Passport Functions o f the Department o f State 13
(Comm. Print 1960) (“Passport Reorganization"). The Passport Act of 1926,
ch. 772, 44 Stat. 887, adopted the pertinent language of the 1856 Act. The
legislative history of the 1926 Act indicates congressional recognition of
Executive authority with respect to passports. See Validity o f Passports:
Hearings on H.R. 11947 Before the House Comm, on Foreign Affairs, 69th
Cong., 1st Sess. 5, 10-11 (1926). As the 1960 Senate staff report concluded:
“ [T]he authority to issue or withhold passports has, by precedent and law,
been vested in the Secretary of State as a part of his responsibility to protect
. . . what he considered to be the best interests of the Nation.” Passport
Reorganization at 13.
    Executive action to control the issuance of passports in connection with
foreign affairs has never been seriously questioned. For example, in 1861,
the Secretary of State issued orders prohibiting persons from departing or
entering the United States without passports, denying passports to individu­
als who were subject to the military service unless they were bonded, and
denying passports to individuals who were engaged in activities that threat­
ened the Union. See 3 John Bassett Moore, A Digest o f International Law
920 (1906). In 1903, President Theodore Roosevelt promulgated a rule au­
thorizing the Secretary of State to refuse to issue passports to persons who
the Secretary believed desired a passport “to further an unlawful or improper




                                      23
 purpose.” Exec. Order No. 235, § 16 (1903), quoted in Moore at 902.7 On a
 number o f occasions the President, acting through the Secretary of State, has
exercised his foreign affairs power by refusing to issue a passport or by
 revoking one already issued. For example, in 1948, the Secretary of State,
pursuant to his “discretionary authority . . . to conduct and be responsible
 for foreign policy,” refused to issue a passport to a congressman who sought
to go abroad to attend a Paris conference to aid Greek guerrilla forces.
P assports Again an Issue, N.Y. Times, Apr. 11, 1948, at E9, discussed in
H aig, 453 U.S. at 302.
    M ore recently, the Supreme Court upheld the authority of the Secretary
o f State to revoke a passport on grounds of national security pursuant to a
regulation, 22 C.F.R. § 51.70(b)(4) (1991), promulgated under section 1 of
the Passport Act of 1926, codified as amended at 22 U.S.C. § 211a. See
H aig, 453 U.S. at 289-310. Although Haig was decided on statutory grounds,
id. at 289 n.17, the Supreme Court noted with approval the vesting of au­
thority over passports in the Executive based on the Executive’s constitutional
authority in the area of foreign affairs, id. at 294.8 By purporting to regulate
the issuance of official and diplomatic passports, section 129(e) and section
503 infringe upon this constitutional authority.
    Second, section 129(e) and section 503 would interfere with the President’s
communications to foreign governments in the conduct of the business of
the United States Government abroad. In interfering with the issuance of
official and diplomatic passports, Congress infringes on the President’s ple­
nary authority “to speak o r listen as a representative of the nation.”
C urtiss-W right, 299 U.S. at 319.
    In general, passports are representations by the President to a foreign
government on behalf of the United States. See Haig, 453 U.S. at 292 (“A
passport is . . . a letter of introduction in which the issuing sovereign vouches
for the bearer and requests other sovereigns to aid the bearer.”); id. (quoting
Urtetiqui v. D'Arcy, 34 U.S. (9 Pet.) 692, 698 (1835)) (‘“ [A passport] is a
document, which, from its nature and object, is addressed to foreign powers . . .
and is to be considered rather in the character of a political docum ent. . . .’”)
    More particularly, official and diplomatic passports are documents addressed
to foreign powers in which the President vouches for United States officials and
diplomats.9 They carry the Secretary of State’s endorsement: “The bearer is
abroad on an official [or diplomatic] assignment for the Government of the
  ’ See also Exec. Order No. 654 (1907); Exec. Order No. 2119-A (1915); Exec. Order No. 2519-A (1917)
  • H aig v. Agee provides two other examples of Executive authority over passports. In 1954, the Secre­
tary revoked a passport held by an individual who was involved in supplying arms to foreign groups
w hose interests were contrary to United States policy. Id. at 302. Similarly, in 1970, the Secretary
revoked passports held by two persons w ho sought to travel to the site of an international airplane
highjacking. Id.
  9State Department regulations describe the types o f passports issued by the United Stales Government:
         (a) Regular passport. A regular passport is issued to a national of the United States
       proceeding abroad for personal or business reasons.
         (b) Official passport. An official passport is issued to an official or employee of the

                                               Continued

                                                  24
United States of America.” According to the Passport Office of the State
Department, such passports have at least two purposes:

         (1) to represent to the foreign government that the bearer is
         in fact an official or employee of the United States Govern­
         ment proceeding abroad on [United States Government]
         business; [and] (2) to facilitate the accomplishment of that
         business (clothing diplomats with diplomatic immunity, by is­
         suing a separate diplomatic passport falls within this category.)

Memorandum for Harry L. Cobum, Deputy Assistant Secretary for Passport
Services, from William B. Wharton, Director, Office of Citizenship Appeals
and Legal Services at 4-5 (Sept. 21, 1984).
    Because of the communicative nature of official and diplomatic pass­
ports, section 129(e) and section 503 may be read as an attempt to dictate to
the President the scope of permissible communications with foreign govern­
ments by means of passports. They would prevent him from issuing, in the
case of a United States official or diplomat who has visited Israel, “a letter
of introduction,” Haig, 453 U.S. at 292, to Arab League nations that does
not also document the bearer’s visit to Israel. Indeed, in certain cases, the
single-passport requirement might positively compel the President to issue,
on behalf of government officials and diplomats, letters of introduction that
would offend the recipients and cause the bearers to be turned away or
subjected to retaliation and harassment. For example, the State Department
predicts that “U.S. officials travelling to the Middle East could be expected
to face obstacles to their entry to many Arab League countries if their pass­
ports reflect travel to Israel.” Selby Memorandum at 5 (footnote omitted).
Just as Congress may not directly intrude upon the President’s “power to
speak . . . as a representative of the nation,” Curtiss-Wright, 299 U.S. at
319, it cannot indirectly, by means of section 129(e) and section 503, effect
the same intrusion.
   Third, the single-passport requirement would impair the President’s abil­
ity to conduct foreign affairs by denying his diplomats the documentation
necessary for entry into certain Arab League nations. It has long been
recognized that “[a]s ‘sole organ’ [of the federal government in the field of
international relations], the President determines also how, when, where and
by whom the United States should make or receive communications, and there
is nothing to suggest that he is limited as to time, place, form, or forum.” Louis


 ’(....continued)
     United States Government proceeding abroad in the discharge o f official d u tie s.. . .
       (c)    D iplomatic passport. A diplomatic passport is issued to a Foreign Service Officer,
     [to] a person in the diplomatic service or to a person having diplomatic status either because
    o f the nature of his or her foreign mission or by reason of the office he or she h o ld s .. . .
 22 C.F.R. § 51.3 (1991).

                                                  25
Henkin, Foreign Affairs and the Constitution 47 (1972). Section 129(e) and
section 503 impermissibly attempt to limit the President’s authority to make
such determinations.
   Congress itself has given heed to these principles since the founding of
the Republic. As the Supreme Court has noted, the Senate Committee on
Foreign Relations declared in 1816:

          The President is the constitutional representative of the United
          States with regard to foreign nations. He manages our con­
          cerns with foreign nations and m ust necessarily be most
          competent to determine when, how, and upon what subjects
          negotiation may be urged with the greatest prospect of suc­
          cess. For his conduct he is responsible to the Constitution.
          The Committee consider this responsibility the surest pledge
          for the faithful discharge of his duty. They think the infer­
          ence of the Senate in the direction of foreign negotiations
          calculated to diminish that responsibility and thereby to im­
          pair the best security for the national safety.

C urtiss-W right, 299 U.S. at 319 (quoting 8 Reports of the Sen. Committee
on Foreign Relations 24 (1916)).
    It is clear that the single-passport requirement would interfere with, and
perhaps foreclose altogether, the President’s ability to conduct diplomacy
involving certain Arab League countries. The policy of these countries is to
deny entrance to those persons whose passports reflect previous travel to
Israel. See H.R. Conf. Rep. No. 238 at 107.'° The State Department be­
lieves that “ [b]ased on prior experience and recent efforts to have the [Arab
League policy] repealed, . . . at least in some instances the [policy] will be
enforced against U.S. officials.” Selby Memorandum at 12. The State De­
partm ent has avoided the application of this policy to United States official
and diplomatic personnel by issuing dual official or diplomatic passports to
United States government employees whose responsibilities require travel to
both Israel and Arab League nations. See id. at 4; The Anti-Boycott Passport
A ct o f 1991: H earings Before the Subcomm. on International Operations o f
the House Comm, on Foreign Affairs, 102d Cong., 1st Sess. 48, 54, 67 (1991)
(testimony o f Elizabeth M. Tamposi, Assistant Secretary of State, Bureau of
C onsular Affairs). To date, “[t]his practice has been successful in keeping
the Arab travel boycott from interfering with the conduct of U.S. diplomacy
in the region and from raising bilateral tensions.” Selby Memorandum at 4.
   If official and diplomatic personnel were forced to carry only a single



   10 In addition, the State Department advises that certain non-Arab League countries with large Muslim
populations, such as Senegal, have occasionally refused to honor travel documents that reflect travel to
Israel. Selby M em orandum at 5 n.2.

                                                 26
passport, they would face barriers to entering these Arab countries if they had
visited Israel anytime within the period of the passport’s validity — a period
as long as five years. See 22 C.F.R. § 51.4(c), (d) (1991)." State Depart­
ment officials have predicted that — at the very least — the single-passport
requirement is likely to result in “incidents of reciprocation, retaliation and
harassment of both officials and Congressmen, . . . either as a matter of
policy in certain countries or simply as a manifestation of anti-Israeli zeal­
ousness among airport officials.” U.S. Dep’t of State, The O perational Impact
o f Anti-Boycott Passport Legislation 3 (June 17, 1991). In addition, “[q]uite
apart from the question of entry, difficulties might also arise when an indi­
vidual bearing evidence of prior or future travel to Israel is stopped at one of
the many internal checkpoints in Lebanon and other Arab countries, and
asked to produce a passport. At this juncture, evidence of travel to Israel
might spark other, more serious, problems than denial of any entry visa.”
Selby Memorandum at 5. Such difficulties would clearly “interfere with the
ability of United States officials to engage in diplomacy and could upset
delicate and complex negotiations” and “would place our officials at personal
risk.” Id. As the President similarly declared in his signing statement on
Pub. L. No. 102-138:

          A purported blanket prohibition on the issuance of more than
          one official or diplomatic passport to U.S. Government offi­
          cials could interfere with my ability to conduct diplomacy by
          denying U.S. diplomats the documentation necessary for them
          to travel to all countries in the Middle East and could upset
          delicate and complex negotiations.

Presidential Signing Statement at 1344-45.12
   Finally, Congress declared in section 129 that it was “the purpose of this
section . . . to prohibit United States Government acquiescence in” the Arab



   "T h e authority o f the President to grant exceptions for citizens to enter or depart the United States
without a passport see 8 U.S.C. § 1185(b), would not overcome these barriers imposed by the operation
o f section 129(e) and section 503. By its terms, section 1185(b) applies only to travel to and from the
United States. It would have no effect on the ability of the President’s representatives to gain entry into
a foreign country.
   I! As the State Department has noted, the single-passport requirement, had it been in effect, might have
upset the recent negotiations leading up to the long-sought Middle East Peace Conference. M em oran­
dum for Brent Scowcroft, from Robert W. Pearson, Executive Secretary, Department o f State, Re: P ro­
posed Legislation Prohibiting M ultiple Official or Diplomatic Passports at 2 (Oct. 29, 1991). In addition
to the Secretary o f State himself, other State Department personnel were involved in shuttle diplomacy
between Israel and the Arab League nations o f Jordan, Syria, Egypt, and Saudi Arabia, among others.
The single-passport requirement would have disrupted the intensified travel necessary to facilitate the
peace conference process. Id. Similarly, the complex process of obtaining the release o f the Am erican
hostages in Lebanon might have been imperiled if United States diplomats were unable to make respon­
sive consultations with Israeli and Arab League diplomats because of a single-passport requirement. In
general, “to carry out [the requirement] in all cases, the President would have t o . . . [postpone] substantive
negotiations of great importance to all parties concerned.” Selby Memorandum at 6.

                                                      27
 League passport and visa policy. Section 129(a)(2), 105 Stat. at 661. To the
 extent that the single-passport requirement is an attempt, by indirect means,
 to dictate the substance of United States policy toward Arab League govern­
 m ents, it suffers from an additional constitutional defect. As the ‘“ sole
 organ o f the nation in its external relations,’” Curtiss-Wright, 299 U.S. at 319
 (quoting 10 Annals of Cong. 613 (statement of Rep. John Marshall)), it is for
 the President alone to articulate the content of the Nation’s response to the
 Arab League passport policy. By interfering with the President’s foreign
 policy determinations, section 129(e) and section 503 attempt to intrude into
 a sphere in which the Constitution gives Congress no role. See Barr Memo­
 randum, 14 Op. O.L.C. at 41.
    In sum, the single-passport requirement interferes with the “plenary and
exclusive” power of the President to conduct foreign affairs. The current
policy o f issuing more than one passport to officials of the United States
Government traveling to the Middle East is a proper exercise of that power.
Into this field, “the Senate cannot intrude; and Congress itself is powerless
to invade it.” Id. Thus, to the extent that section 129(e) and section 503
would interfere with the President’s ability to conduct diplomacy with cer­
tain nations and lim it the content and nature of his speech to foreign
governments as the representative of the United States by limiting issuance
of official and diplomatic passports, they do not comport with the Constitution.13
    That section 503 was enacted as a condition on the appropriation of money
for the State Department does not save it from constitutional infirmity. As
we have said on several prior occasions, Congress may not use its power
over appropriation o f public funds “to attach conditions to Executive Branch
appropriations requiring the President to relinquish his constitutional discre­
tion in foreign affairs. . . . [T]he President cannot be compelled to give up


   l3T his analysis has proceeded from the President's broad authority over the N ation’s foreign affairs
an d has relied on specific applications o f that authority. The analysis applies self-evidently to the
issuance o f diplom atic passports, which are furnished to Foreign Service Officers, persons in the dip­
 lom atic service, and persons having diplom atic status due to their m issions or offices. See 22 C.F.R. §
5 1.3(c) (1991), quoted supra note 9. T he Departm ent o f State has also asked for our views on the
constitutionality o f the single passport requirem ent “as applied to non-Executive branch officials, such
as m em bers o f C ongress and the federal judiciary, who often carry diplom atic passports, and C ongres­
sional staff, w ho frequently travel on official passports.” Selby M emorandum at 14. We have received
the inform al advice o f the State Department that it believes the provisions are also unconstitutional as
applied to these non-executive branch officials. Telephone Conversation between Jam ison M. Selby,
D eputy Legal Adviser, D epartm ent of State, and Timothy E. Flanigan, Acting A ssistant Attorney G en­
e ral, O ffice o f Legal Counsel (Jan. 17, 1992).
   W ithout the benefit o f the State Department’s formal views on this question, we offer the following
view s. To the extent that members of the legislative and judicial branches travel on diplomatic pass­
ports o u r analysis, o f course, applies to such passports. In general, we also believe that the President’s
authority over foreign affairs applies equally to the issuance o f official passports. To receive an official
passport, a person m ust be “an official or em ployee of the United States Government proceeding abroad
in the discharge o f official duties.” 22 C.F.R. § 51.3(b) (1991), quoted supra note 9. Such persons are
necessarily representing the U nited States in its dealings with foreign nations. Indeed, they travel with
the Secretary o f S tate's endorsem ent that they are “abroad on an official assignment for the Government
o f the U nited States o f Am erica.” Accordingly, we believe that our analysis would apply with equal
force to all officials passports, whether issued to members o f the executive branch or to members o f a
coordinate branch.

                                                    28
the [constitutional] authority of his Office as a condition of receiving the
funds necessary to carrying out the duties of his Office.’” Barr Memoran­
dum, 14 Op. O.L.C. at 42 n.3 (quoting Constitutionality o f Proposed Statutory
Provision Requiring Prior Congressional Notification fo r Certain CIA C o­
vert Actions, 13 Op. O.L.C. 258, 261-62 (1989)).
    The Supreme Court has recently endorsed this conclusion. In some
 spheres, it has said, “the constitutional limitations on Congress when exer­
 cising its spending power are less exacting than those on its authority to
regulate directly.” South Dakota v. Dole, 483 U.S. 203, 209 (1987); cf. U.S.
Const, art. I, § 8, cl. 1. But in Metropolitan Wash. A irports Auth. v. Citizens
fo r the Abatem ent o f Aircraft Noise, Inc., 501 U.S. 252, 271 (1991), the
 Supreme Court found Dole “inapplicable” to issues (such as those raised by
 section 129(e) and section 503) that “involve separation-of-powers principles.”
 In accordance with this decision, therefore, our analysis is not affected by
 the fact that the single-passport requirement of section 503 is in the form of
 a condition on appropriation.14
    For all these reasons, we conclude that section 129(e) and section 503 are
unconstitutional to the extent that they purport to limit the President’s abil­
ity to issue more than one official or diplomatic passport to United States
government personnel.

                                                III.

   We now turn to the question whether section 129(e) and section 503 may
be severed from the authorization act and the appropriations act.
   The Supreme Court has explained the basic approach to severability ques­
tions on many occasions: “Unless it is evident that the legislature would not
have enacted those provisions which are within its power, independently of
that which is not, the invalid part may be dropped if what is left is fully
operative as a law.” Champlin Ref. Co. v. Corporation Com m ’n, 286 U.S.
210, 234 (1932), quoted in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987). Thus, absent evidence that the statute without the unconstitutional
provisions will not function “in a manner consistent with the intent of Con­
gress,” Alaska Airlines, 480 U.S. at 685, the unconstitutional provision will
be found to be severable.
   The single-passport requirement of section 129(e) operates independently
of the remainder of Pub. L. No. 102-138, which contains 144 substantive
sections related to one another only by the fact that they involve some as­
pect of foreign relations. See, e.g., § 121 (“Childcare Facilities at Certain
Posts Abroad”); § 225 (“Eastern Europe Student Exchange Endowment
Fund”); § 301 (“Persian Gulf War Criminals”); § 359 (“Human Rights Abuses


  HThe Stale D epartm ent agrees that “if Congress cannot directly prohibit the issuance of m ultiple
diplom atic passports, it cannot do so indirectly through its appropriations power." Selby M em oran­
dum at 13 (em phasis and capitalization omitted).

                                                29
in East Timor”); § 402 (“Multilateral Arms Transfer and Control Regime”); §
507 (“Sanctions Against Use o f Chemical or Biological Weapons”). There is no
textual evidence that Congress would not have enacted this wide-ranging bill if
the isolated provision regarding issuance of multiple passports had not been
included.15 Nothing in the legislative history undermines this conclusion.16
The absence of section 129(e), moreover, would in no way impair the execution
o f the remainder of the statute in a manner fully consistent with the intent of
Congress. There is, in short, no reason to conclude that Congress would have
declined to enact Pub. L. No. 102-218 had it known that section 129(e) would
not pass constitutional muster. We therefore conclude that the single-passport
requirement is severable from the remainder of Pub. L. No. 102-138.
    The appropriations bill, Pub. L. No. 102-140, contains an express sever­
ability clause. Section 604 provides:

            If any provision of this Act or the application of such provi­
          sion to any person or circumstances shall be held invalid, the
          remainder of the Act and the application of each provision to
          persons or circumstances other than those as to which it is
          held invalid shall not be affected thereby.

105 Stat. at 823. The Supreme Court has held that the inclusion of a sever­
ability clause “creates a presumption that Congress did not intend the validity
of the statute in question to depend on the validity of the constitutionally
offensive provision. In such a case, unless there is strong evidence that
Congress intended otherwise, the objectionable provision can be excised from
the remainder of the statute.” Alaska Airlines, 480 U.S. at 686 (citations
omitted). In the case of Pub. L. No. 102-140, there is no strong evidence —
indeed, there is no evidence at all — that Congress intended the validity of
the statute to depend on the validity of section 503. The single-passport
   l5T he absence o f a severability provision is not dispositive, for “[i]n the absence of a severability
clause . . . . C ongress' silence is just th at — silence — and does not raise a presumption against
severability.” A laska A irlines, 480 U.S. a t 686.
   '‘ The Senate Foreign Relations Committee gave this provision no special attention that would indicate
its centrality to the legislation as a whole. The portion o f the Comm ittee’s 134-page report devoted to
w hat later becam e section 129 consumed only a single page, and was merely a synopsis o f the provision's
text. See S. Rep. No. 98, 102d Cong., 1st Sess. 55 (1991). The House bill did not even contain a single­
passport requirem ent. See H.R. Rep. N o. 53, 102d Cong., 1st Sess. 62 (1991).
   O n the Senate floor, the Chairman of the Foreign Relations Committee (Senator Pell) did not mention
the single-passport requirem ent as he sum marized the bill, see 137 Cong. Rec. S 11,121 (daily ed. July
29, 1991) and only one speaker discussed the passport provision. See id. at SI 1,189-90 (statem ent of
Sen. Lautenberg).
   The conference com m ittee adopted alm ost verbatim the language o f the Senate bill. See H R. Conf.
Rep. No. 238 at 107. The conferees devoted no m ore attention to section 129 than to many other
provisions. N or did the conferees give any indication that this provision of the bill was so central to its
adoption that the bill would fail without it.
   W hen the bill cam e back from conference, the passport provision merited only a single sentence of
discussion on the Senate floor. See 137 Cong. Rec. S14,438 (daily ed. Oct. 4, 1991) (statement o f Sen.
Kerry). In the House, the Democratic floor manager spoke about the provision at greater length, but
gave no indication that it was in any sense the keystone o f the entire bill. See 137 Cong. Rec. H7638
(daily ed. Oct. 8, 1991) (statement of Rep. Berman).

                                                    30
requirement did not even appear in the House bill, but was added by the
Senate. See S. Rep. No. 106, 102d Cong., 1st Sess. 114 (1991). The Con­
ference Report did not discuss the provision at all. See H.R. Conf. Rep. No.
233, 102d Cong., 1st Sess. 87 (1991) (noting only that the Senate’s amend­
ment adding the single-passport requirement was “[r]eported in disagreement”).
Finally, the respective committee reports gave no indication that the sever­
ability clause was to be given anything but its natural construction. See S.
Rep. No. 106, at 123; H.R. Rep. No. 106, 102d Cong., 1st Sess. 97 (1991).17
   Thus, we conclude that the single-passport requirements of Pub. L. No. 102-
138 and Pub. L. No. 102-140 are severable from the remainder of those bills.

                                                     IV.

    The final issue we address is whether the President may refuse to enforce
the single-passport requirements.18 The Department of Justice has consis­
tently advised that the Constitution provides the President with the authority
to refuse to enforce unconstitutional provisions.19 Both the President’s obli­
gation to “take Care that the Laws be faithfully executed,” U.S. Const, art.
II, § 3, and the President’s oath to “preserve, protect and defend the Consti­
tution of the United States,” id. § 1, vest the President with the responsibility
to decline to enforce laws that conflict with the highest law, the Constitu­
tion. We recognize, however, that the judicial authority addressing this issue
is sparse and that our position may be controversial.
    Among the laws that the President must “take Care” to faithfully execute
is the Constitution. This proposition seems obvious, since the Constitution
is “the supreme Law of the Land.” U.S. Const, art. VI, § 2 (emphasis
added). As the Justice Department has stated previously,
          the Executive’s duty faithfully to execute the law embraces a
          duty to enforce the fundamental law set forth in the Constitu­
          tion as well as a duty to enforce the law founded in the Acts


   17Although the severability clause of Pub. L. No. 102-140 is couched in terms of provisions of the act
being “held to be invalid,” and thus arguably might be read to contemplate a court decision on validity
o f portions of the act, it remains an accurate indicator of whether Congress would have enacted the bill,
and desired its other provisions to stand, if any particular section were not enforced.
   "T h e analysis of this question does not turn on the fact that the President has signed the two bills. As
the Supreme Court has observed, “ it is not uncommon for Presidents to approve legislation containing
parts which are objectionable on constitutional grounds." INS v. Chadha, 462 U.S. 919, 942 n.13
(1983). That the President has signed a bill in no way estops him from later asserting the bill's uncon­
stitutionality, in court or otherwise. See Letter for Peter W. Rodino, Jr., Chairman, House Com m ittee on
the Judiciary, from William French Smith, Attorney General at 3 (Feb. 22, 1985) (“Attorney General
Smith Letter”) (“ [T]he President’s failure to veto a measure does not prevent him subsequently from
challenging the Act in court, nor does presidential approval of an enactment cure constitutional defects.”);
Memorandum for Robert J. Lipshutz, Counsel to the President, from John M Harmon, Assistant A ttor­
ney General, Office of Legal Counsel at 1 (Sept 27, 1977) (“Harmon M emorandum”) (“ [P]rior to a
definitive judicial determination of the question of constitutionality a President may decline to enforce a
portion o f a statute if he believes it to be unconstitutional, even if he or one of his predecessors signed the
statute into law.").
   15Our most recent consideration of this issue is set forth in the Barr Memorandum. The follow ing
discussion is drawn in large part from that memorandum.

                                                      31
           of Congress, and cases arise in which the duty to the one
           precludes the duty to the other.

C onstitutionality o f Congress’ Disapproval o f Agency Regulations by Resolu­
tions N ot P resented to the President, 4A Op. O.L.C. 21, 29 (1980) (Opinion
o f Attorney General Benjamin R. Civiletti). See also, e.g., Bid Protest H ear­
ings at 23 (statement of Professor Mark Tushnet) (“[T]he President is required
faithfully to execute the laws o f the United States, which surely include the
Constitution as supreme law.”). Where an act of Congress conflicts with the
Constitution, the President is faced with the duty to execute conflicting “laws”
— a constitutional provision and a contrary statutory requirement. The reso­
lution o f this conflict is clear: the President must heed and execute the
Constitution, the supreme law of our Nation.
   Thus, the Take Care Clause does not compel the President to execute
unconstitutional statutes. An unconstitutional statute, as C hief Justice
M arshall explained in his archetypal decision, is simply not a law at all:
“Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and conse­
quently the theory of every such government must be, that an act o f the
legislature, repugnant to the constitution, is void.” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803) (emphasis added). As Alexander Hamilton
had previously explained, “[t]here is no position which depends on clearer
principles than that every act o f a delegated authority, contrary to the tenor
of the commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid.” The Federalist No. 78,
at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).20 Obviously, if a
statute is “void” or “no law,” it cannot be one of the “Laws” that the Presi­
dent must faithfully execute.
   We are aware that the Constitution provides that a bill enacted pursuant
to the procedure described in article I, section 7 “shall become a Law.”
Only laws “made in Pursuance” of the Constitution, however, “shall be the
supreme Law o f the Land.” U.S. Const, art. VI, § 2; see also Marbury, 5
U.S. (1 Cranch) at 180. In order to be a valid “Law,” therefore, a statute
must comport with the substance of the Constitution, as well as with its
procedures. When confronted with a suggestion to the contrary, the Su­
preme Court dismissed it in a footnote: “The suggestion is made that [a


   “ This proposition is hardly a novel one. See e.g., Frank H. Easterbrook, Presidential Review, 40 Case
W. Res. L. Rev. 905, 920 (1990) (“The Supreme Court has said more times than one can count that
unconstitutional statutes are ‘no law at a ll.” ') (citing Norton v. Shelby County, 118 U.S. 425, 442 (1886)
(“ An unconstitutional act is not a law; . . . it is, in legal contem plation, as inoperative as though it had
never been passed.” )); Letter for Gerrit Smith, from Salmon P. Chase, C hief Justice of the United States
(Apr. 19, 1868) quoted in J.W. Schuckers, The Life and Public Services o f Salmon Portland Chase 577
(1874) (“C hief Justice Chase Letter”) (“ Nothing is clearer to my mind than that acts of Congress not
w arranted by the Constitution are not law s.”); Appointment o f Assistant Assessors o f Internal Revenue,
11 Op. A tt’y Gen. 209, 214 (1865) (“If any law be repugnant to the Constitution, it is void: in other
w ords, it is no law ” ).

                                                     32
legislative veto provision] is somehow immunized from constitutional scru­
tiny because the Act containing [the provision] was passed by Congress and
approved by the President. Marbury v. Madison resolved that question.”
Chadha, 462 U.S. at 942 n.13 (citation omitted).
    The President’s constitutional oath of office is further authority for the
President to refuse to enforce an unconstitutional law. The Constitution
requires the President to take an oath in which he promises to “preserve,
protect and defend the Constitution of the United States.” U.S. Const, art.
II, § 1. As Chief Justice Chase asked, “How can the President fulfill his
oath to preserve, protect, and defend the Constitution, if he has no right to
defend it against an act of Congress sincerely believed by him to have been
passed in violation of it?” Chief Justice Chase Letter at 578. He had
already answered the question: “[I]n the case where [an act of Congress]
directly attacks and impairs the Executive power confided to him by the
Constitution . . . it seems to me to be the clear duty of the President to
disregard the law . . . ” Id. at 577. Just as the Take Care Clause requires
the President to faithfully execute the laws, including the Constitution as the
supreme law, the oath to defend the Constitution allows the President to
refuse to execute a law he believes is contrary to that document.
    Although the Supreme Court has not squarely addressed the issue, four
Justices have recently endorsed the proposition that a President may decline
to enforce unconstitutional laws. In Freytag v. Commissioner, 501 U.S. 868
(1991), Justice Scalia, in an opinion joined by Justices O ’Connor, Kennedy,
and Souter, observed that “the means [available to a President] to resist
legislative encroachment” upon his power included “the power to veto en­
croaching laws, or even to disregard them when they are unconstitutional.”
Id. at 906 (Scalia, J., concurring in part and concurring in the judgment)
(citation omitted and emphasis added). The Court’s opinion did not take
issue with this observation.21
    Justice Scalia’s opinion is the latest in a long line of authority dating
back to the framing of the Constitution. For instance, James Wilson, a key
drafter and advocate for the ratification of the Constitution, addressed the
President’s authority to refuse to enforce unconstitutional laws in the Penn­
sylvania ratifying convention. He equated Presidential review o f statutes
with judicial review:

          I had occasion, on a former day . . . to state that the power of
          the Constitution was paramount to the power of the legisla­
          ture, acting under that Constitution. For it is possible that the

   21 The Supreme Court has considered several controversies that arose because of a President's decision
to ignore statutes that he believed were unconstitutional without suggesting that the President had acted
illegitimately. For example, as Attorney General Benjamin R. Civiletti has observed, the Court in
M yers v. United States, 272 U.S. 52 (1926), upheld the President’s decision to fire a postmaster despite
a statute preventing him from doing so and did not question the propriety o f the President’s action that
gave rise to the case before it. See The Attorney General's Duty to Defend and Enforce Constitutionally
Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980)

                                                 33
          legislature . . . may transgress the bounds assigned to it, and
          an act may pass, in the usual mode, notwithstanding that trans­
          gression; but when it comes to be discussed before the judges
          — when they consider its principles and find it to be incom­
          patible with the superior power of the Constitution, it is their
          duty to pronounce it void. . . . In the same manner, the P resi­
          dent o f the United S tates could shield him self and refuse to
          carry into effect an a c t that violates the Constitution.

II The Documentary History o f the Ratification o f the Constitution 450-51 (Merrill
Jensen ed., 1976) (statement o f Dec. 1, 1787) (second emphasis added).

    W ilson’s understanding illustrates the Framers’ profound structural con­
cern about the threat of legislative encroachments on the Executive and the
Judiciary. James Madison observed that “[t]he legislative department is
everywhere extending the sphere of its activity and drawing all power into
its impetuous vortex.” The Federalist No. 48, at 309 (James Madison) (Clinton
R ossiter ed„ 1961). The Supreme Court has said that: “the hydraulic pres­
sure inherent within each of the separate Branches to exceed the outer limits
o f its power, even to accomplish desirable objectives, must be resisted.”
Chadha, 462 U.S. at 951. Presidential decisions not to enforce statutes that
violate the separation of powers have been justified by the need to resist
legislative encroachment. In 1860, for example, Attorney General Black
advised President Buchanan that he could refuse to enforce an unconstitu­
tional condition in a law:

          Congress is vested with legislative power; the authority of the
          President is executive. Neither has a right to interfere with
          the functions of the other. Every law is to be carried out so
          far forth as is consistent with the Constitution. . . . You are
          therefore entirely justified in treating this condition (if it be a
          condition) as if the paper on which it is written were blank.

M em orial o f Captain Meigs, 9 Op. Att’y Gen. 462, 469-70 (I860).22

    M ore recently, the Department of Justice, under both Democratic and
Republican Administrations, has consistently advised that the Constitution
authorizes the President to refuse to enforce a law that he believes is uncon­
stitutional. Thus, Attorney General Smith explained that the Department’s
decision not to enforce or defend the Competition in Contracting Act was

  22 Cf. Raoul Berger, Executive Privilege: A Constitutional Myth 309 (1974) (“Agreed that a veto ex­
hausts presidential power when the issue is the wisdom o f the legislation. But the object o f the Framers
was to prevent ‘encroachm ent’ . . . . I would therefore hold that the presidential oath to 'protect and
defend the C onstitution’ posits both a right and a duty to protect his own constitutional functions from
congressional im pairm ent.” ).

                                                  34
       based upon the fact that in addition to the duty of the Presi­
       dent to uphold the C onstitution in the context o f the
       enforcement of Acts of Congress, the President also has a con­
       stitutional duty to protect the Presidency from encroachment
       by the other branches. . . . An obligation to take action to
       resist encroachments on his institutional authority by the legis­
       lature may be implied from [his oath to “preserve, protect and
       defend” the Constitution] . . . .

Attorney General Smith Letter at 3; see also Letter for Thomas P. O ’Neill,
Jr., Speaker of the House, from Benjamin R. Civiletti, Attorney General at 3
(Jan. 13, 1981) (“[T]he Executive’s independent [constitutional] obligation
to ‘take care that the laws be faithfully executed’, permits the Attorney
General not to initiate criminal prosecutions that will undoubtedly prove
unsuccessful on constitutional grounds.”) (citation omitted); Harmon M emo­
randum at 16 (“[T]he President’s duty to uphold the Constitution carries
with it a prerogative to disregard unconstitutional statutes.”).
    This Office has given the same advice, particularly when the statutes in
question would blur the separation of powers between the Congress and the
President, as do section 129(e) and section 503. See, e.g., Harmon Memo­
randum at 13 (“We have said that Myers [v. United States, 272 U.S. 52
(1926)], by implication, stands for the proposition that the President may
lawfully disregard a statute that trenches upon his constitutional powers. We
would be disposed to accept that proposition even in the absence of M yers.”)',
Memorandum for the Attorney General from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel at 17 (Aug. 27, 1984) (“[T]he
President need not blindly execute or defend laws enacted by Congress if
such laws trench on his constitutional power and responsibility.”). See also
Barr Memorandum, 14 Op. O.L.C. at 49-50. The Department has consis­
tently maintained that these principles apply whether or not the President
signed the law that he intends not to enforce. See supra note 18.
    We recognize that opponents of the specific Presidential authority to refuse
to enforce unconstitutional statutes draw support for their views from the
same constitutional texts we have cited, especially the Take Care Clause.
See, e.g., Arthur S. Miller, The President and Faithful Execution o f the Laws,
40 Vand. L. Rev. 389, 396 (1987) (“To say that the President’s duty to
faithfully execute the laws implies a power to forbid their execution is to
flout the plain language of the Constitution.”); Bid Protest Hearings at 89
(letter of Professor Eugene Gressman) (“ [I]t would be a novel and ‘entirely
inadmissible’ construction of the Constitution to contend that the President’s
obligation to see the laws faithfully executed implies a power to forbid their
execution.”). These conclusions appear to rest on the argument that the ex­
ecutive branch is not the institution within the federal government that is
authorized to determine whether a law is unconstitutional. Accordingly,
Professor Gressman has stated that “despite a Presidential belief that a duly
                                      35
enacted statute invades Executive powers, he must comply with and execute
that statute until it is definitively invalidated by the courts.'' Id. at 88 (em­
phasis added). As the Justice Department has acknowledged, “until a law is
adjudicated to be unconstitutional, the issue o f enforcing a statute of ques­
tionable constitutionality raises sensitive problems under the separation of
powers.” Id. at 318-19 (statement of Acting Deputy Attorney General D.
Lowell Jensen).
   We reject, however, the argument that the President may not treat a stat­
ute as invalid prior to a judicial determination, but rather must presume it to
be constitutional. This would subtly transform the proposition established
in M arbury v. M adison - in deciding a case or controversy, the Judiciary
must decide whether a statute is constitutional — to the fundamentally dif­
ferent proposition that a statute conflicts with the Constitution only when
the courts declare so. Professor Sanford Levinson explained why this can­
not be so:

          If one believes that the judiciary “finds” the [law] instead of
          “creating” it, then the law is indeed “unconstitutional from
          the start.” Indeed, the judicial authority under this view is
          derived from its ability to recognize the constitutionality or
          unconstitutionality of laws, but, at least theoretically, the con­
          stitutional status [of statutes] is independent of judicial
          recognition. To argue otherwise is ultimately to adopt a theory
          that says that the basis of law — including a declaration of
          unconstitutionality — is the court’s decision itself. Among
          other problems with this theory is the incoherence it leads to
          in trying to determine what it can mean for judges to be faith­
          ful to their constitutional oaths.

B id P rotest H earings at 67.

    Still others have argued that the veto power is the only tool available to
the President to oppose an unconstitutional law. Although we recognize that
the veto power is the primary tool available to the President; we disagree
with the contention that the Framers intended it to be the only tool at the
President’s disposal. Janies Wilson’s statement, quoted above, demonstrates
that the idea that the President has the authority to refuse to enforce a law he
believes is unconstitutional was familiar to the Framers. The Constitution
limits the President’s formal power in the legislative process to the exercise
o f a qualified veto, but it places no limit on his authority to take care that
the laws are faithfully executed.23

  23 We em phasize that this conclusion does not permit the President to determine as a matter of policy
discretion which statutes to enforce. T he only conclusion here is that he may refuse to enforce a law that
                                               Continued

                                                   36
                                             Conclusion

   For the reasons given above, we conclude that section 129(e) of Pub. L.
No. 102-138 and section 503 of Pub. L. No. 102-140 are unconstitutional to
the extent that they purport to prohibit the issuance of more than one official
or diplomatic passport to United States government officials. We also con­
clude that these provisions are severable, and that the P resident is
constitutionally authorized to decline to enforce them.

                                                           TIMOTHY E. FLANIGAN
                                                      Acting Assistant Attorney General
                                                           Office o f Legal Counsel




  “ (....continued)
he believes to be unconstitutional.
  Given this distinction, the Supreme Court's decision in Kendall v. United States ex rel. Stokes, 37
U.S. (12 Pet.) 524 (1838), has no relevance to the question whether the President may refuse to enforce
a law because he considers it unconstitutional. There, the Supreme Court states: “To contend that the
obligation imposed on the President to see the laws faithfully executed, im plies a power to forbid their
execution, is a novel construction o f the constitution, and entirely inadm issible.” Id. at 613. The Court,
however, took pains to deny that the President had made such an argument, as the case involved the
Postm aster G eneral's refusal, with no support from the President, to comply with a statute that ordered
him to pay two contractors for mail carrying services. Because the case did not involve a claim by the
President that he would not enforce an unconstitutional law, the Court had no occasion to examine the
unique considerations presented by such a claim.

                                                    37
