                                                             June 7, 1977


77-34     MEMORANDUM OPINION FOR THE
          GENERAL COUNSEL OF THE AGENCY FOR
          INTERNATIONAL DEVELOPMENT
          Reprogramming—Legislative Committee Objection


   This is in response to your request for our opinion on two questions
arising out of the administration of the Agency for International Devel­
opment (AID). The first is whether the legislative history o f a provi­
sion in Title I of the Foreign Assistance and Related Programs Appro­
priations Act, 1977, Pub. L. No. 94-441, 90 Stat. 1467, can be read to
convert that provision into more than a report-and-wait provision. We
believe that the legislative history of the provision cannot be so read,
and it is our opinion that the executive branch is in no sense legally
bound to abide by an objection of the appropriations committees of
Congress with regard to a specific reprogramming.
   The second question concerns the extent to which the Administrator
of your agency might be able to bind the agency, the State Depart­
ment, or the President not to go forward with reprogramming action
over the objection of these congressional bodies. We think that the
Administrator may give his or her personal assurance to Congress,
orally or in writing, of his intention to give the greatest weight to such
an objection, and that he may also convey, if authorized to do so,
similar assurances by the Secretary of State and the President. But the
Administrator may not legally bind himself, his agency, the Secretary
of State, or the President to honor the objection, because such an
agreement would constitute formal acceptance by the executive branch
of a legislative veto that is constitutionally suspect.

    I.   The Effect of the Provision
  Under the provision in question, your agency may not reprogram
funds for fiscal year 1977 “unless the Appropriations Committees of
both Houses of the Congress are previously notified fifteen days in
advance.” Thus, the provision constitutes a so-called “report and wait”
provision of the type that we regard as constitutionally permissible.
However, the conference report that deals with this provision discusses

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the fact that the provision represents a compromise between the House
and Senate managers of the bill, the latter having brought into confer­
ence a Senate-passed bill that purported to prevent reprogramming of
A ID funds without affirmative approval by the appropriations commit­
tees of the two Houses. T he report states that the compromise “is based
on the firm expectation of the conferees that the Executive Branch will
follow the historical pattern of honoring objections” to reprogram­
mings. H.R. Rep. No. 1642, 94th Cong., 2d Sess. 8 (1976). The confer­
ence report was approved by both Houses. 122 Cong. Rec. H 11142
(daily ed. Sept. 27, 1976); 122 Cong. Rec. S 16811 (daily ed. Sept. 28,
 1976). The question is whether the quoted language, taken together
with the language in Title I quoted above, binds your agency or the
executive branch to abide by committee “vetoes” of reprogramming
decisions as a statutory matter. We think it plain that it does not.
   W hatever the “firm expectations” o f the conferees might have been
in reaching this compromise, their expectations cannot be read as if the
Senate version had been enacted into law. As Mr. Justice White recent­
ly w rote for the Supreme Court, “legislative intention, without more, is
not legislation.” Train v. City o f New York, 420 U.S. 35, 45 (1975).
Thus, even if we were to read into the conference report an intent to
bind the executive branch to follow its historical practice, we would
nevertheless conclude that the legislation enacted was inadequate to
fulfill that purpose.

   II.   Express Agreements Binding the Executive Branch to Abide by
         Congressional Directives
   W e think that an express agreement purporting to bind the Adminis­
trator to follow the dictates of congressional committees presents both
statutory and constitutional issues. In assessing the validity of such an
agreement, we would first characterize it as one in which the Adminis­
trator places his actual decisionmaking authority concerning specific
reprogramming in the congressional body. Thus, while the Administra­
tor exercises some discretion in what reprogramming proposals are to
be submitted to the cognizant committee, the latter body would exer­
cise the final decisionmaking authority by virtue of the veto power it
would have under the agreement.
A. The Statutory Question
   As a statutory matter, therefore, the question is whether the Adminis­
trator possesses the authority to delegate his decisionmaking power to a
congressional body. The Adm inistrator’s own power over reprogram­
ming decisions derives from § 101 of Executive Order 10973, 3 CFR
493 (1959-1963 Compilation), by which the President delegated to the
Secretary o f State the functions assigned to the President under the
Foreign Assistance Act o f 1961, 75 Stat. 424, 22 U.S.C. §§2151 et seq.
In that order the President directed the Secretary of State to establish
A ID , which the latter did by Public Notice 199, 26 Fed. Reg. 10608. In
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§ 2(a)(1) of the notice, the Secretary of State specifically delegated to
the Administrator his § 101 powers. Nothing in the notice would pur­
port to give the Administrator the authority to delegate beyond him­
self, much less to a congressional body, his discretion to administer the
provisions of the Foreign Assistance Act involved here.
   Thus, as a threshhold matter the Administrator does not possess the
power to make the kind of delegation of authority contemplated by the
proposed agreement. More importantly, we think that if either the
order or the public notice attempted to confer such power upon either
the Secretary of State or the Administrator, respectively, those docu­
ments would be contrary to § 621(a) of the Foreign Assistance A ct of
1961, as amended, 22 U.S.C. § 2381(a), which states that the “President
may exercise any functions conferred upon him by this chapter through
such agency or officer of the United States Government as he shall
direct.” We believe that § 2381(a) effectively prohibits delegation of
reprogramming decisions to any person outside the executive branch,
including congressional bodies or individual Members of Congress.
   We end our discussion of this question by pointing out that, under
our analysis in Part I, supra, of the Appropriations Act, nothing in that
Act could be said to qualify the express language of § 2381, We there­
fore conclude that the Administrator has no power to make the pro­
posed delegation and that any delegation of such power by him W w i i l d
violate § 2381(a).
B. The Constitutional Question
   Although our resolution of the statutory question makes it unneces­
sary to examine the constitutional issue, we briefly address the latter
because we think the answer is reasonably well established. As a practi­
cal matter, an agreement purporting to bind the Administrator to
follow the dictates of a congressional body, if assumed to be binding,
would constitute nothing less than a formal committee veto provision.
Such provisions have been considered unconstitutional by former Presi­
dents. See, e.g., Public Papers o f the Presidents: Dwight D. Eisenhower,
1955, at 688-89; John F. Kennedy, 1963, at 6. They have also been
declared to be unconstitutional by two former Attorneys General. See
37 Op. A.G. 56 (1933); 41 Op. A.G. 230 (1955). The fact that here the
Administrator would be a party to the agreement, constitutionally, does
nothing to remove the taint.
   The Administrator cannot delegate his executive power with respect
to reprogramming decisions to the chairman of a congressional commit­
tee. To do so would be to delegate an executive function to the
legislative branch in violation of the doctrine of separation of powers.

  111.   Express Agreements Binding the Executive Branch to Consult
         with Congressional Bodies
   Given our view that the Administrator lacks statutory and constitu­
tional authority to enter into an agreement effectively surrendering his
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decisionmaking authority to a congressional body, the question remains
as to what type of agreement the Administrator may enter into and the
extent to which he would bind himself and his agency by doing so.
   We believe that the Administrator may enter into an express agree­
ment by which he would consult with a congressional body prior to
making a reprogramming effective and agree to give great deference to
the views of that body in reaching a final decision. The crucial point is
that the Administrator must retain at all times the authority to make the
final decision.
   We also think that such a commitment on the part of the Administra­
tor could be made binding on AID if published in the Federal Register.
See 44 U.S.C. § 1510. A somewhat analogous situation was presented by
the action of Acting Attorney General Bork regarding the authority of
the W atergate Special Prosecutor to contest an assertion of executive
privilege. This commitment was published as a regulation and was said
by the Supreme Court to have “the force of law” so long as it was
extant. See, United States v. Nixon, 418 U.S. 683, 695 (1974).
   We also believe that such an agreement, whether or not published as
a regulation, could be revoked at will by the Administrator or his
successor. As the Court said of the regulation involved in the Nixon
case, “it is theoretically possible for the Attorney General to amend or
revoke the regulation. . . . ” Id. at 696. Once revoked, the agreement
would have no further effect.
                                          John M. H   arm on
                                 Acting Assistant Attorney General
                                                Office o f Legal Counsel




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