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).