         Issues Raised by Foreign Relations Authorization Bill


P ro v isio n in foreign relations authorization bill conditioning an authorization fo r ap p ro p ria­
     tions on th e requirem ent that an entity controlled by the legislative branch be included at
     C onference on Security and C ooperation in E urope negotiations would u n constitutionally
     infringe on the P resident’s exclusive authority to conduct negotiations on beh alf o f the
     U nited S tates abroad and unconstitutionally deprive the President o f his co n stitutionally-
     m andated control over the disclosure o f the content o f negotiations.


T h e unconstitutional condition may be severed from the rem ainder o f the provision authorizing
     appropriations and the rest o f the bill.


A t least in the context o f legislation that infringes on the separation o f pow ers, the P resident has
     the constitutional authority to refuse to enforce a statutory provision that he believes is
     u nconstitutional. B ecause this unconstitutional requirem ent is severable, the P resident m ay
     enforce the rem ainder o f th e provision, while refusing to enforce the unconstitutional portion.


                                                                                  February 16, 1990

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


    This memorandum is in response to your request for this Office’s opinion
on several issues raised by section 102(c) of H.R. 3792*, the foreign rela­
tions authorization bill for fiscal years 1990 and 1991. Specifically, you
asked whether section 102(c)(2) is unconstitutional; whether it is severable
from the rest of H.R. 3792; and whether the President may decline to en­
force it. As set forth in greater detail below, we believe that section 102(c)(2)
is plainly unconstitutional. We further believe that it is severable from sec­
tion 102(c)(1) and the rest of H.R. 3792. Under the circumstances, we
believe that if the President chooses to sign H.R. 3792, he would be consti­
tutionally authorized to decline to enforce section 102(c)(2).

                                               Analysis

1.    Section 102(c)(2) Unconstitutionally Infringes on the P resid en t’s
      E xclusive A u thority to C onduct N egotiations on B e h a lf o f the
      United States


                                                    37
Section 102(c) provides:

          (c) INTERNATIONAL CONFERENCES AND CONTIN­
        GENCIES. — (1) There are authorized to be appropriated for
        “International Conferences and Contingencies”, $6,340,000 for
        the fiscal year 1990 and $7,300,000 for the fiscal year 1991
        for the Department of State to carry out the authorities, func­
        tions, duties, and responsibilities in the conduct of the foreign
        affairs of the United States with respect to international con­
        ferences and contingencies and for other purposes authorized
        by law.


          (2)   None of the funds authorized to be appropriated under
        paragraph (1), may be obligated or expended for any United
        States delegation to any meeting of the Conference on Secu­
        rity and Cooperation in Europe (CSCE) or meetings within
        the framework of the CSCE unless the United States delega­
        tion to any such meeting includes individuals representing the
        Commission on Security and Cooperation in Europe.


    The Commission on Security and Cooperation in Europe (the “Commis­
sion”) is an entity controlled by the legislative branch. The Commission
consists of twenty-one members, eighteen of whom are drawn from the houses
o f Congress, three of whom are appointed by the President. 22 U.S.C. §
3003(a). The Commission is deemed to be a standing committee of Con­
gress for the purpose of receiving disbursements of foreign currencies, see
id. § 3007(b), and Commission employees are considered congressional em­
ployees, id. § 3008(d).
    It is abundantly clear that section 102(c)(2), by purporting to require the
President to include “individuals representing the Commission” as part of a
delegation charged with conducting international negotiations, is unconstitutional.
    The President possesses broad authority over the Nation’s diplomatic af­
fairs. That authority flows from his position as head o f the unitary Executive
and as Commander in Chief. E.g., U.S. Const, art. II, §§ 1, 2 & 3; Haig v.
Agee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369 U.S. 186, 212, 213
(1962); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20
(1936). Article II, Section 2 o f the Constitution also gives the President the
specific authority to “appoint Ambassadors, other public Ministers and Con­
suls.” These constitutional provisions authorize the President to determine
the form and manner in which the United States will maintain relations with
foreign nations, and further to determine the individuals who will conduct
those relations. Section 102(c)(2) of the bill is thus clearly unconstitutional,
on two specific and distinct grounds.


                                        38
   First, the courts, the Executive and Congress have all concurred that the
President’s constitutional authority specifically includes the exclusive author­
ity to represent the United States abroad. A's the Supreme Court held in
Curtiss-Wright, speaking of the “federal power over external affairs”:

        In this vast external realm, with its important, complicated,
        delicate and manifold problems, the President alone has the
        power to speak or listen as a representative of the nation. He
        makes treaties with the advice 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.

299 U.S. at 319 (emphasis omitted). The Court’s opinion is directly appli­
cable here: “the President alone has the power to speak or listen as a
representative of the nation. . . . [H]e alone negotiates.” Id. (emphases
added). The Court went on to describe the President’s authority in the realm
of foreign affairs as

       the very delicate, plenary and exclusive power of the Presi­
       dent as the sole organ of the federal government in the field
       of international relations—a power which does not require as a
       basis for it’s exercise an act of Congress . . . .

Id. at 320.

    Such authority “in the field of international relations” must self-evidently
include the President’s power to select his subordinates, who will speak as
the President’s assistants or agents in the realm of foreign affairs. James
Madison observed in the First Congress that: “No person can be forced
upon [the President] as an assistant by any other branch of the Government.”
The First Congress 190 (Robert P. Williams ed. 1970).
   Justice Nelson relied upon the President’s primacy in foreign affairs in
dismissing a civil action for damages brought against the commander of an
American gun ship that had bombarded a town in Nicaragua where a revolu­
tionary government had engaged in violence against American citizens and
their property:

         As the executive head of the nation, the president is made
       the only legitimate organ of the general government, to open
       and carry on correspondence or negotiations with foreign na­
       tions, in matters concerning the interests of the country or of
       its citizens.



                                      39
D urand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. .1860) (No. 4186). In
Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), rev’d on other grounds, 444
U.S. 996 (1979), the Court o f Appeals for the District of Columbia Circuit
stated that: “The subtleties involved in maintaining amorphous relationships
are often the very stuff of diplomacy — a field in which the President, not
Congress, has responsibility under our Constitution.” Id. at 708. Section
102(c)(2) plainly conflicts with that fundamental constitutional command.
   From the earliest days o f the Republic the executive branch has made
clear that it controls the representation of the foreign policy of the United States.
In 1790, Secretary of State Thomas Jefferson made the point emphatically:

          The transaction of business with foreign nations is Executive
        altogether. It belongs then to the head of that department,
        except as to such portions of it as are specially submitted to
        the Senate. Exceptions are to be construed strictly.

Opinion on the Powers of the Senate Respecting Diplomatic Appointments,
April 24, 1790, reprinted in 16 Papers o f Thomas Jefferson 378, 379 (Julian
P. Boyd ed„ 1961).
   Jefferson made this point with even greater specificity in rebuking Citi­
zen Genet for attempting to present a consul whose commission was addressed
to the Congress of the United States. Jefferson emphatically declared that
the President is

        the only channel of communication between this country and
        foreign nations, it is from him alone that foreign nations or their
        agents are to learn what is or has been the will of the nation,
        and whatever he communicates as such, they have a right and
        are bound to consider as the expression of the nation.

Jefferson to Edmond C. Genet, November 22, 1793, reprinted in 9 The Writ­
ings o f Thomas Jefferson 256 (Albert E. Bergh ed. 1903).
   In modem times Presidents have also asserted their authority to control
negotiations. President Bush based his 1989 veto of the FS-X legislation in
part upon his constitutional authority to control foreign negotiations:

        In the conduct of negotiations with foreign governments, it is
        imperative that the United States speak with one voice. The
        Constitution provides that that one voice is the President’s.

II Pub. Papers George Bush 1042, 1043 (July 31, 1989). Other recent Presi­
dents have taken the same view. E.g., President Reagan’s Statement on
Signing H.R. 1777 into law, II Pub. Papers Ronald Reagan 1541, 1542 (Dec.

                                        40
22, 1987) (invoking the President’s “exclusive authority to determine the
time, scope, and objectives” on any international negotiations); President
Carter’s Statement on Signing H.R. 3363 into law, II Pub. Papers Jimmy
Carter 1434 (Aug. 15, 1979) (“decisions associated with the appointment of
Ambassadors are acknowledged to be a constitutional prerogative of the
President”).
    Congress has also repeatedly endorsed this understanding of the Constitu­
tion. John Marshall, when serving in Congress, described the President’s
primacy in the conduct of foreign negotiations by referring to the President
as “the sole organ of the nation in its external relations, and its sole representa­
tive with foreign nations.” 10 Annals of Cong. 613 (1800).' The Senate Committee
on Foreign Relations reported to the Senate in 1816 in similar words:

            The President is the constitutional representative of the United
          States with regard to foreign nations. He manages our con­
          cerns with foreign nations and must necessarily be m ost
          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[s] this responsibility the surest pledge
          for the faithful discharge of his duty. They think the interfer­
          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.

Reports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt.
8, 56th Cong., 2d Sess. 24 (1901).2
    These examples and authorities by no means exhaust the list of what
could be cited in support of our conclusion. Nonetheless, they are clearly
sufficient to demonstrate that the President has the constitutional responsi­
bility to represent the United States abroad and thus to choose the individuals
through whom the Nation’s foreign affairs are conducted. That responsibil­
ity cannot be circumscribed by statute.3 By requiring the President to conduct
negotiations by means of certain individuals, section 102(c)(2) would imper­
missibly interfere with that specific authority over foreign negotiations and
diplomatic appointments. Accordingly, the section is unconstitutional.




   1Other congressm en contemporaneously recognized that communications with foreign governments
was an exclusive presidential prerogative. For example. Representative James A. Bayard o f Delaware
noted that “the Constitution has placed the power of negotiation in the hands o f the Executive only.” 9
Annals o f Cong. 2588 (1799); see also id. at 2677 (remarks o f Rep. Isaac Parker); id. at 2494 (remarks
o f Rep. Roger Griswold).
   2 Both M arshall’s and the Com m ittee’s statements were cited by the Supreme Court with approval in
Curtiss- Wright, 299 U.S. at 319.

                                                  41
   Second, section 102(c)(2) is also constitutionally offensive on the ground
that the individuals illegitimately “appointed” by the section are to “rep­
resent” a legislative entity. Section 102(c)(2) thus seeks to inject legislative
agents directly into the Executive’s foreign relations negotiations, giving
C ongress regular and unsupervised access to privileged information. The
role section 102(c)(2) thus envisions for the legislative branch— which
w ould be “represented” on a negotiating delegation and presumably would
receive reports on the conduct of negotiations from their “representative”—
w ould deprive the President o f his constitutionally-m andated control over
the disclosure o f the content of negotiations.4 That control— a necessary
and recognized element o f executive authority— would be impaired by
section 102(c)(2).
   That the Constitution mandates Presidential control over the disclosure of
negotiations was an essential element of the Founders’ vision. As John Jay
wrote in The Federalist:

            It seldom happens in the negotiation of treaties, of whatever
          nature, but that perfect secrecy and immediate dispatch are
          sometimes requisite. There are cases where the most useful
          intelligence may be obtained, if the persons possessing it can
          be relieved from apprehensions of discovery. Those appre­
          hensions will operate on those persons whether they are actuated
          by mercenary or friendly motives; and there doubtless are many
          of both descriptions who would rely on the secrecy of the
          President, but who would not confide in that of the Senate,
          and still less in that o f a large popular assembly. The conven­
          tion [has] done well, therefore, in so disposing of the power of
          making treaties that although the President must, in forming
          them, act by the advice and consent of the Senate, yet he will
          be able to manage the business of intelligence in such manner
          as prudence may suggest. . . . So often and so essentially have
          we heretofore suffered from the want of secrecy and dispatch

   ’ N or can section 102(c)(2) be viewed as a legitimate exercise o f congressional power over the appro­
priation o f public funds. Congress may not use that power
        to attach conditions to executive branch appropriations requiring the President to relin­
        quish his constitutional discretion in foreign affa irs.. . . [T]he President cannot be com­
        pelled to give up the authority of his Office as a condition o f receiving the funds neces­
        sary to carrying out the duties of his Office.
C onstitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification fo r Cer­
tain CIA Covert Actions, 13 Op. O.L.C. 258, 261-62 (1989) (footnote omitted).
   4T hat participatory role in ongoing negotiations is also completely divorced from the Fram ers’ inten­
tions with respect to the activities and authority of the legislative branch. As Alexander Hamilton
explained:
        The essence o f the legislative authority is to enact laws, or, in other words, to prescribe
        rules for the regulation of the society; while the execution of the laws and the em ploy­
        m ent o f the com m on strength, either for this purpose or for the common defense, seem to
        com prise all the functions of the executive magistrate.
   The Federalist No. 75, at 450 (Alexander Hamilton) (Clinton R ossitered., 1961).

                                                   42
          that the Constitution would have been inexcusably defective if
          no attention had been paid to those objects.

The Federalist No. 64, at 392-93 (John Jay) (Clinton Rossiter ed., 1961).
Similarly, James Madison, while serving in Congress, observed that “the
Executive had a right, under a due responsibility, also, to withhold informa­
tion, when of a nature that did not permit a disclosure of it at the time.” 5
Annals of Cong. 773 (1796).
   Moreover, the executive branch has repeatedly objected to requirements
for mandatory disclosure of information to Congress about international ne­
gotiations. At the same time, where possible, all Presidents have provided
broad information to Congress about international negotiations.5 The con­
duct of international negotiations is a function committed to the President
by the Constitution, see supra, and he must have the authority to determine
what information about such international negotiations may, in the public
interest, be made available to Congress and when such disclosure should
occur. As the Supreme Court observed in Curtiss-Wright:

          [C ongressional legislation which is to be made effective
          through negotiation and inquiry within the international field
          must often accord to the President a degree of discretion and
          freedom from statutory restriction which would not be adm is­
          sible were domestic affairs alone involved. Moreover, he, not
          Congress, has the better opportunity of knowing the condi­
          tions which prevail in foreign countries . . . .  He has his
          confidential sources of information. He has his agents in the
          form of diplomatic, consular and other officials. Secrecy in


  ’ This balanced view of the President’s responsibilities with respect to the disclosure o f negotiations
has been the consistent position of the executive branch since 1792, when President Washington re­
ceived a request from the Congress for all “persons, papers, and records” relating to the failure of M ajor
General St. C lair’s military expedition against the Indians. 2 Annals of Cong 493(1792). Secretary of
State Jefferson’s notes reflect that President Washington thereafter convened the Cabinet to determ ine
the proper response. 1 The Writings o f Thomas Jefferson 303 (Andrew A. Lipscomb ed., 1903). The
President and the Cabinet concluded that “the Executive ought to com municate such papers as the
public good would permit, and ought to refuse those, the disclosure of which would injure the public.”
Id. at 304. The President ultimately decided to produce the requested documents. He directed Secretary
Jefferson to negotiate an agreement with Congress that acknowledged the President’s right to protect
state secrets, the public disclosure of which he determined could adversely affect national security.
Jefferson’s efforts were successful, and on April 4, 1792, the House resolved
       [t]hat the President of the United States be requested to cause the proper officers to lay
       before this House such papers o f a public nature, in the Executive Department, as may be
       necessary to the investigation of the causes of the failure of the late expedition under
       Major General St. Clair.
3 Annals of Cong. 536 (1792) (emphasis added).
        Similarly, in 1794, the Senate requested correspondence between the U. S. M inister to France and
the Republic of France, and between the Minister and the State Department. Senate Journal, 3d Cong.,
1st Sess. 42 (1794). President Washington submitted certain o f the correspondence requested, but w ith­
held “those particulars which, in my judgment, for public considerations, ought not to be com m uni­
cated.” 1 James D. Richardson, Messages and Papers o f the Presidents 152 (1896).

                                                   43
          respect o f information gathered by them may be highly neces­
          sary, and the premature disclosure of it productive of harmful
          results. Indeed, so clearly is this true that the first President
          refused to accede to a request to lay before the House of Rep­
          resentatives the instructions, correspondence and documents
          relating to the negotiation of the Jay Treaty — a refusal the
          wisdom of which was recognized by the House itself and has
          never since been doubted.

299 U.S. at 320.6 Curtiss-Wright thus clearly establishes that the President
has the authority to determine what information about international negotia­
tions may, in the public interest, be made available to Congress and when, if
at all, such disclosure should occur. Section 102(c)(2), however, would
subvert the President’s control over the disclosure o f negotiations by insert­
ing a “representative” of the legislative branch into diplomatic negotiations.7
    Again, the examples and authorities offered do not exhaust those that
could be invoked in support o f our conclusion. Nonetheless, we believe that
the historical record is clear that the President has the constitutional author­
ity to control disclosure of the content of negotiations to Congress. It follows,
equally clearly, that a provision that purports to place a “representative” of a
legislative entity upon an executive negotiating team is inconsistent with
that authority, and is unconstitutional.

2. Section 102(c)(2) is Severable

   The unconstitutional requirement that representatives of the Commission
be included at the CSCE negotiations may be severed from the authorization
for appropriations. Because the condition is severable, the President may
enforce the remainder of the provision, disregarding the condition contained
in section 102(c)(2).
   A presumption in favor of the severability of unconstitutional provisions
exists so long as what remains of the statute is capable of functioning inde­
pendently. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality
opinion); Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir.
1985), a j f ’d sub nom. Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987).
As the Supreme Court has explained on many occasions, “[ujnless it is
evident that the Legislature would not have enacted those provisions which


  ‘ The Court in Curtiss-W right specifically endorsed President Washington’s refusal to provide the House
w ith inform ation it requested about treaty negotiations, even after the negotiations had been concluded.
299 U.S. at 320-21. A fortiori, the President has constitutional authority to withhold such information
during the negotiations.
  7 The effect o f this provision would also be to vitiate the President’s authority to determine not to
disclose particular inform ation because such disclosure would jeopardize national security. See United
States v. N ixon, 418 U.S. 683, 710-11 (1974); Assertion o f State Secrets Privilege in Civil Litigation, 3
Op. O .L.C. 91 (1979).

                                                   44
 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 Comm'n, 286 U.S. 210, 234 (1932), quoted in Alaska Airlines,
480 U.S. at 684. This presumption may be overcome by evidence that,
 absent the unconstitutional provision, the statute will not function “in a m an­
ner consistent with the intent of Congress.” Alaska Airlines, Inc. v. Brock,
480 U.S. at 685.
    The authorization contained in section 102(c)(1) functions independently
of the provision in section 102(c)(2). Accordingly, the unconstitutional con­
dition in section 102(c)(2) may be severed from the remainder of the provision
unless there is evidence that Congress would not have enacted the authoriza­
tion absent the condition.8
    There is no such evidence. Nothing in the debates concerning the condi­
tion suggests that Congress would not have enacted the authorization if the
requirement of Commission representation was invalidated. The condition
was added in the House as an amendment to the existing authorization pro­
vision. See 135 Cong. Rec. 6265 (1989). Its purpose was to enable members
of the Commission to continue their previous participation in the CSCE
negotiations. See 135 Cong. Rec. 14,787 (1989) (statement of Sen. Fowler);
id. (statement of Sen. D ’Amato); id. (statement of Sen. DeConcini). No
one, however, indicated that they would disapprove funding for the negotia­
tions if the Commission access requirement were deleted. The chairman of
the House subcommittee said only that “[i]t is an okay amendment.” 135
Cong. Rec. 6265 (1989) (statement of Rep. Dymally).
    That Congress early desired to impose the condition on the authorization
does not mean that Congress would not have authorized the funds without
the condition. The Supreme Court declined to make this assumption in FCC
v. League o f Women Voters, 468 U.S. 364 (1984), where the court held that
an appropriations law’s prohibition on editorializing by public broadcasting
stations violated the First Amendment, but did not even consider whether
the invalidity of the condition should result in the invalidity of the entire




   ' We reject any argum ent that the conditional clause “unless the United States delegation to any such
meeting includes individuals representing the Commission on Security and Cooperation in Europe” is
the relevant language to be severed from the provision. It is merely an accident of gram m ar that this
clause can be deleted without making nonsense of section 102(c)(2) as a whole Moreover, with this
clause deleted section 102(c)(2) would deny the President funding for a particular type o f negotiations.
For the reasons discussed above, this would in itself raise serious constitutional questions as an interfer­
ence with the President’s authority to conduct diplomacy as he sees fit. There is obviously no reason to
prefer a severability analysis that presents the same constitutional questions that gave rise to the analy­
sis in the first place. Cf. Edward J. DeBarlolo Corp v. Florida G ulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988) (statutes should be construed to avoid constitutional questions).
Section 102(c)(2) in its entirety is naturally understood as the condition regarding the CSCE negotia­
tions, and the proper question is whether that whole section is severable.

                                                   45
appropriation.9 Indeed, we are aware of no instance in which the Supreme
Court has ever invalidated an appropriation because a condition on the use of
the appropriation was held unconstitutional.
   We are also reluctant to attribute to Congress an intent to preclude the
U nited States from engaging in the CSCE negotiations. Congress was keenly
aware of the significance of the negotiations concerning conventional mili­
tary forces in Europe. The care with which Congress considered the
negotiations illustrates their importance to Congress. We cannot believe that
Congress would have preferred no participation by the United States in the
CSCE negotiations to participation by a delegation that does not include
representatives of the Commission.

3. The President M ay Refuse to Enforce Section 102(c)(2)

    The final issue we address is whether the President may refuse to enforce
an unconstitutional provision such as section 102(c)(2).10 The Department
o f Justice has consistently advised that the Constitution provides the Presi­
dent with such authority. Both the President’s obligation to “take Care that the
Laws be faithfully executed” and the President’s oath to “preserve, protect and
defend the Constitution of the United States” vest that conflict with the highest
law, the Constitution. We emphasize, however, that there is little judicial au­
thority concerning this question, and the position remains controversial.
    The President’s authority to refuse to enforce a law that he believes is
unconstitutional derives from his duty to “take Care that the Laws be faith­
fully executed,” U.S. Const, art. II, § 3 and the obligation to “preserve,
protect and defend the Constitution of the United States” contained in the
President’s oath of office. U.S. Const, art. II, § 1. The Constitution is the
suprem e law that the President has a duty to take care to faithfully ex­
ecute.11 W here a statute enacted by Congress conflicts with the Constitution,
the President is placed in the position o f having the duty to execute two
conflicting “law s” : a constitutional provision and a contrary statutory


  9Justice Stevens, dissenting alone, said that there was a “serious question . . . whether the entire public
funding schem e is severable from the prohibition on editorializing and political endorsements." FCC v.
League o f Women Voters, 468 U.S. at 411 n.3 (Stevens, J., dissenting).
   '“T he analysis o f this question does not depend on w hether the President signed the bill or not. As the
Suprem e Court has observed, “it is not uncomm on for Presidents to approve legislation containing parts
w hich are objectionable on constitutional grounds." IN S v. Chadha, 462 U.S. 919, 942 n.13 (1983)
T hat the President has signed the bill in no way estops his ability to assert the bill’s unconstitutionality,
in court or otherwise. See id.
   " It is generally agreed that the Constitution is a law w ithin the meaning of the Take Care Clause. See,
e.g.. C onstitutionality o f GAO's Bid Protest Function: Hearings Before the Subcomm. o f the House
Comm, on G overnm ent Operations, 99th Cong., 1st Sess. 23 (1985) ("B id Protest Hearings") (state­
m ent o f Professor Mark Tushnet) (“the President is required faithfully to execute the laws o f the United
States, w hich surely include the Constitution as supreme law ”); Letter for Secretary o f Education Shirley
M . H ufstedler from Attorney General Benjam in R. Civiletti at 12 (June 5, 1980) (“the Executive’s duty
faithfully to execute the law embraces a duty to enforce the fundamental law set forth in the Constitution
as w ell as a duty to enforce the law founded in the Acts o f Congress, and cases arise in which the duty
to the one precludes the duty to the other” ).

                                                     46
 requirement. The resolution of this conflict is clear: the President must
 heed the Constitution— the supreme law of our Nation.
    Moreover, the Take Care Clause does not compel the President to execute
 unconstitutional statutes. An unconstitutional statute is not a law. Alexander
 Hamilton explained:

             There is no position which depends on clearer principles
           than that every act of 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. To deny this would be to affirm that the deputy is
           greater than his principal; that the servant is above his master;
           that the representatives of the people are superior to the people
           themselves; that men acting by virtue of powers may do not
           only what their powers do not authorize, but what they forbid.

The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). John Marshall stated the same position in Marbury v. Madison-.

            Certainly all those who have framed written constitutions
          contemplate them as forming the fundamental and paramount
          law of the nation, and consequently the theory of every such
          government must be, that an act o f the legislature, repugnant
          to the constitution, is void.

5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).12

   The President’s oath of office is the other constitutional provision autho­
rizing the President to refuse to enforce a 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 pre­
serve, 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?” Letter from Chief Justice Chase to Gerrit Smith, Apr. 19,
1868, quoted in J. W. Schuckers, The Life and Public Services o f Salmon

  ,! Even though the Constitution provides that a measure enacted pursuant to the procedure described in
U.S. Const, art. I, § 7 “shall become a Law,” the fact that a law was adopted consistently with the consti­
tutional process will not save it. Only laws “made in Pursuance” of the Constitution “shall be the su ­
preme Law o f the Land." U.S. Const, art. VI; see also Marbury v. M adison. 5 U.S. (1 C ranch)at 180. A
law that is not in pursuance o f the Constitution is not the supreme law of the land — indeed, it is not law.
And if an unconstitutional law is void, then the President has no obligation to enforce it. See, e.g.. Letter
from C hief Justice Chase to Gerrit Smith, Apr 19, 1868, quoted in J. W. Schuckers, The Life and Public
Services o f Salmon Portland Chase 577 ( 1874) (“Nothing is clearer to my mind than that acts of Congress
not warranted by the Constitution are not laws ”); 11 Op. A tt’y Gen. 209, 214 (1865) (“ If any law be
repugnant to the Constitution, it is void; in other words, it is no law.’’).

                                                    47
Portland Chase 578 (1874) (“Letter from Chief Justice Chase”). Chief Jus­
tice Chase concluded that the President’s obligation to defend the Constitution
of the United States authorizes him to decline to enforce statutes which he
believes are unconstitutional.13 The President’s obligation to defend the Con­
stitution permits him to decline to enforce a statute which is unconstitutional.
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 the supreme law, the Constitution.
    Indeed, the Framers of the Constitution anticipated the question of the
President’s authority to refuse to enforce unconstitutional laws and indicated
that the Constitution affords the President the authority to refuse to enforce
unconstitutional legislation. James Wilson, one of the key drafters and ad­
vocates o f the Constitution, addressed this question before the Pennsylvania
convention that was debating whether to ratify the proposed Constitution.
He stated:

           [I]t is . . . proper to have efficient restraints upon the legisla­
           tive body. These restraints arise from different sources. I will
           mention some of them. . . . I had occasion, on a former day . . . to
           state that the power o f the Constitution was paramount to the
           power o f the legislature, acting under that Constitution. For it
           is possible that the legislature, when acting in that capacity,
           may transgress the bounds assigned to it, and an act may pass,
           in the usual mode, notwithstanding that transgression; but when
           it comes to be discussed before the judges — when they con­
           sider its principles and find it to be incompatible with the
           superior power of the Constitution, it is their duty to pronounce
           it void. . . . In the sam e manner, the President o f the United
           States could shield him self and refuse to carry into effect an
           a c t that violates the Constitution.

2 The D ocum entary History o f the Ratification o f the Constitution 450 (Merrill
Jensen ed. 1976) (statement of James Wilson on Dec. 1, 1787) (second em ­
phasis added).

   13 C h ie f Ju stic e C h a se answ ered his q u e stio n by en d o rsin g P resident Jo hnson’s decisio n to refuse to
e n fo rc e th e law :
            To m e, th e re fo re , it seems p e rfe c tly clear that th e P resident had a p erfect right, and
         in d e e d w as u n d e r the highest o b lig a tio n , to rem ove Mr. Stanton, if he m ade the rem oval
         n o t in w a n to n d isre g ard o f a c o n stitu tio n al law, b u t w ith a sincere be lie f that the T enure-
         o f-O ffic e A ct w as u n constitutional an d fo r the p u rp o se o f b rin g in g the questio n before
         th e S u p rem e C o u rt. Plainly it w as a proper and peaceful, if not the only proper and peaceful
         m ode o f protecting an d defending th e Constitution.
L e tte r fro m C h ie f J u stic e C hase at 578. Sim ilarly, this O ffice has o p ined that “ the P resid e n t’s du ty to
u p h o ld th e C o n stitu tio n carrie s with it a prero g ativ e to d isreg ard unconstitutional statu tes.” M em o ran ­
du m fo r R o b ert J. L ip sh u tz , Counsel to th e P resident, fro m John M . H arm on, A ssistant A ttorney G e n ­
e ra l, O ffice o f L e g a l C o u n se l at 16 (S ept. 17, 1977) (“ H arm o n M em orandum ” ).

                                                           48
   This understanding comports with the Framers’ profound structural con­
cern about the threat of legislative encroachments on the Executive and the
judiciary. As Madison observed, “The 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 Rossiter
ed., 1961). As Chief Justice Burger more recently admonished, “[t]he hy­
draulic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must be
resisted.” INS v. Chadha, 462 U.S. at 951. In particular, presidential deci­
sions not to enforce a statute which violates the separation of powers have
been justified by the need to resist legislative encroachment. For example,
in 1860 Attorney General Black advised President Buchanan that the Presi­
dent could refuse to enforce an unconstitutional 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.

9 Op. Att’y Gen. 462, 469-70 (I860).14

   For the reasons discussed above, the Department of Justice in modem
times has also consistently advised that the Constitution authorizes the Presi­
dent to refuse to enforce a law that he believes is unconstitutional. See, e.g.,
Letter for Congressman Peter W. Rodino, Jr., from Attorney General W ill­
iam French Smith at 3 (Feb. 22, 1985) (“Attorney General Smith Letter”)
(the decision not to enforce the Competition in Contracting Act was based
upon “the duty of the President to uphold the Constitution in the context of
the enforcement of Acts of Congress” and the President’s “oath to ‘preserve,
protect and defend’ the Constitution”); Letter for Congressman Thomas P.
O ’Neill, Jr., from Attorney General Benjamin R. Civiletti (Jan. 13, 1981);
Harmon Memorandum at 16 (“the President’s duty to uphold the Constitu­
tion carries with it a prerogative to disregard unconstitutional statutes”).
The Department has given the same advice whether or not the President
signed the law which he intends not to enforce. See,, e.g., Attorney General
Smith Letter; Harmon Memorandum.


   14 See also R aoul B erger, Executive Privilege: A Constitutional Myth 309 (1974) (“ A greed that a v e to
e xhausts p re sid en tial p o w er w hen the issue is the wisdom o f the legislation. B ut the o b ject o f the
F ram ers w as to p rev en t ‘encroachment ’; and they w ere too practical to lim it the P resid e n t’s p o w e r to
‘d e fe n d ’ the C o n stitu tio n a g ain st a breach o f its very essence: the separation o f pow ers. . . . I w ou ld
therefore h o ld th at the p resid en tial o ath to ‘p ro tect and d efen d the C o n stitu tio n ' posits b oth a right a n d a
duty to protect h is ow n con stitu tio n al functions from congressional im pairm ent.” ).

                                                            49
    We, too, conclude that at least in the context of legislation that infringes
the separation o f powers, the President has the constitutional authority to
refuse to enforce unconstitutional laws. The opinions of the Department of
Justice have long recognized the President’s authority to refuse to enforce a
statutory provision that interferes with the President’s exercise of his consti­
tutional powers. See, e.g.. Attorney General Smith Letter at 3 (the decision
not to enforce the Competition in Contracting Act was justified by the
President’s “constitutional duty to protect the Presidency from encroach­
ment by the other branches”); Recommendation that the Department o f Justice
not D efend the Constitutionality o f Certain Provisions o f the Bankruptcy
Am endm ents and Federal Judgeship A ct o f 1984, 8 Op. O.L.C. 183, 195
(1984) (describing the historical practice of the President “under which the
President need not blindly execute or defend laws enacted by Congress if
such laws trench on his constitutional power and responsibility”). James
W ilson’s statement, quoted above, provides further evidence of the constitu­
tional authority of the President to shield him self from unconstitutional
legislation by refusing to enforce such laws. We therefore advise that the
President has the constitutional power to refuse to enforce laws that violate
the separation of powers.
    We recognize that opponents of presidential authority to refuse to enforce
an unconstitutional statute attempt to draw support for their views in the
same constitutional texts cited by proponents of such authority. The Take
Care Clause is often quoted as providing self-evident proof that the Presi­
dent may not refuse to enforce a law which he believes is unconstitutional.15
This reading of the provision denies the President any discretion to refuse to
enforce a law that is unconstitutional. See, e.g., B id Protest Hearings at 88
(Letter from Professor Eugene Gressman).
    We reject this reading of the Take Care Clause because it rests on two
faulty premises concerning the nature o f the “laws” which the President
must enforce: first, that the President will never be faced with a conflict
between a statute and the Constitution, and second, that an unconstitutional
law is truly “law” for the purposes of the Take Care Clause. As explained
above, both o f these premises are invalid. Statutes do conflict with the
Constitution, and unconstitutional statutes are not laws the President must
faithfully execute.
    We are also aware that others have argued that the President may not
refuse to enforce a law because the executive branch is not the institution
within the federal government that is authorized to determine whether a law
is unconstitutional. We have ourselves testified that “until a law is adjudi­


   'sSee, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1124 (9th Cir. 1988) ("To
c o n stru e th is d u ty to fa ith fu lly execute th e law s as im p ly in g the p o w er to forbid th eir execution perverts
the c le a r la n g u a g e o f th e ‘tak e care’ c la u s e . . . . ”), withdrawn in relevant part, 893 F.2d 205 (9th Cir.
1989); A rth u r S. M iller, The President and Faithful Execution o f the Laws, 4 0 V and. L. Rev. 389, 396
(1 9 8 7 ) ( “To say th a t th e P resident’s d u ty to faithfully e x ec u te the law s im plies a pow er to forbid their
e x e c u tio n is to flo u t th e p la in language o f the C o n stitu tio n .” ).

                                                             50
cated to be unconstitutional, the issue of enforcing a statute of questionable
constitutionality raises sensitive problems under the separation of powers.”
B id Protest Hearings at 318-19 (statement of Acting Deputy Attorney Gen­
eral D. Lowell Jensen). We reject, however, the argument that the President
may not treat a law as invalid prior to a judicial determination but rather
must presume it to be constitutional. It affects a subtle, but fundamental
transformation from the position, established in Marbury, that in deciding a
case or controversy the judiciary ultimately decides whether a statute is
constitutional to the position that a law is unconstitutional only when the
courts say it conflicts with the Constitution. Professor Levinson has ex­
plained why this cannot 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 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 unconstitution­
       ality — 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 faithful to their
       constitutional oaths.

Bid Protest Hearings at 67.

    Still others have argued that the veto power is the only tool available to
the President to oppose an unconstitutional law. We agree that the veto
power is the primary tool available to the President. We disagree, however,
with the contention that the Framers intended it to be the only tool at the
President’s disposal. James Wilson’s statement, quoted above, demonstrates
that the idea that the President has the authority to refuse to enforce a law
which he believes is unconstitutional was familiar to the Framers. The
Constitution qualifies the President’s veto power in the legislative process,
but it does not impose a similar qualification on his authority to take care
that the laws are faithfully executed.
   Finally, we emphasize that this conclusion does not permit the President
to determine as a matter of policy discretion which statutes to enforce. The
only conclusion here is that he may refuse to enforce a law which he be­
lieves is unconstitutional. Obviously, the argument that the President’s
obligation to defend the Constitution authorizes him to refuse to enforce an
unconstitutional statute does not authorize the President to refuse to enforce
a statute he opposes for policy reasons. Thus, instances in which courts

                                      51
have rejected the claims of general presidential discretion to refuse to en­
force a statutory command are irrelevant to the question of whether the President
may refuse to enforce a law because he considers it unconstitutional.16

                                                        Conclusion

    For the reasons given above, we conclude that section 102(c)(2) is uncon­
stitutional. We also conclude that it is severable, and that the President may
constitutionally decline to enforce it.

                                                                               WILLIAM P. BARR
                                                                         Assistant Attorney General
                                                                          Office o f Legal Counsel




   “ In K endall v. U nited States, 37 U .S . (12 Pet.) 524 (1 8 3 8 ), the P ostm aster G eneral refused to com ply
w ith a s tatu te th at o rd e re d him to pay tw o c o n tracto rs fo r m ail carry in g services. T h e C ourt, alth o u g h
d e n y in g th a t the P resid e n t was m aking su ch an arg u m en t, said, “To contend that the o b ligation im posed
o n th e P resid e n t to see the laws faith fu lly executed, im p lie s a p o w er to forbid th e ir e xecution, is a novel
c o n stru c tio n o f th e constitution, an d e n tire ly in a d m issib le .” Id. a t 613. Kendall, how ever, d id not
in v o lv e a c la im by th e President that h e w as being o rd e re d to en fo rce an u n constitutional law, and thus
th e C o u rt h a d n o o c ca sio n to exam ine th e u n ique co n sid eratio n s p resented by such a claim .
   P re s id e n t N ix o n ’s d e cisio n to im p o u n d funds ap p ro p riated by C ongress is a nother e x am p le o f an
e x e c u tiv e re fu sa l to e n fo rc e a federal law, b u t th ere, to o . P resident N ixon did not contend that the law
w as u n c o n stitu tio n a l. A ssistant A tto rn ey G eneral R eh n q u ist acknow ledged that “ it seem s an a n o m a ­
lo u s p ro p o s itio n th a t b ecau se the E x e c u tiv e branch is b o u n d to ex ecu te the law s, it is free to d eclin e to
e x e c u te th e m .” H e a d d ed , however, th a t “ [o ]f co u rse, if a C ongressional d ire c tiv e to spend w ere to
in te rfe re w ith th e P re s id e n t’s authority in an are a c o n fid e d by the C onstitution to his su b stantive d ire c ­
tio n an d c o n tro l, su ch as h is authority as C o m m an d er-in -C h ief o f the A rm ed F orces and his auth o rity
o v e r fo re ig n affa irs, a situation w ould b e presented v ery d ifferent from the one before u s.” M em o ran ­
d u m Re: Presidential Authority to Im pound Funds Appropriated fo r Assistance to Federally Im pacted
Schools at 11 (D ec. 1, 1969) (citation om itted).



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