Waiver of Claims for Damages Arising Out of CooperativeSpace Activity

• Court: Department of Justice Office of Legal Counsel
• Decided: June 7, 1995
• Status: Published

Opinion

Waiver of Claims for Damages Arising Out of Cooperative Space Activity Congress has not authorized the National Aeronautics and Space Administration to waive subrogated claims on behalf of federal agencies against foreign States for damages arising out of cooperative space activity. An amendm ent to the Space Act would be necessary to grant NASA such authority.

The President m ay waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government. The President may delegate this authority to an agency head.

The weight o f authority supports the President’s power to waive state claims against a foreign govern­ m en t

June 7, 1995

M e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r D epa r tm en t o f Sta te

This memorandum responds to your request for our opinion concerning a legal matter under discussion between the Department of State and the National Aero­ nautics and Space Administration (“ NASA” ). NASA has been negotiating execu­ tive agreements with Japan and certain other foreign States under which the United States and those States would agree to waive all claims, including subrogated claims, against the other for damages arising out of cooperative space activity. You have asked whether NASA is authorized to waive subrogated claims on behalf of other federal agencies, and if not, how a govemment-wide waiver could be implemented. In addition, you have asked whether the federal government may waive claims for damages to which state governments may be subrogated. We have concluded that Congress has not authorized NASA to waive such claims on behalf of other federal agencies. An amendment to the Space Act would be necessary to grant NASA this authority. At your request, we have considered a number of alternative sources of authorization for waiver of subrogated claims. While the full scope of the President’s authority in this regard is unclear, we have concluded that the President may waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government, and he may delegate that authority to an agency head.

I. Background

According to your submission, in mid-November 1994, NASA requested authority from the Department of State to negotiate an executive agreement with Japan establishing a mutual waiver of liability, including a waiver of subrogated claims, in connection with joint activities for the exploration of space. Article 3(2)(a) of the draft agreement provides that “ [e]ach Party agrees to a cross-waiver

140 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

of liability pursuant to which each Party waives all claims” against the other Party and its employees as well as “ related entities” and their employees for damage to property or persons. A “ party” is defined in relevant part as the governments of Japan and the United States, their agencies, and institutions estab­ lished by law for space development. “ Related entities” are defined so as to extend the waiver to contractors and subcontractors (including suppliers), users and customers, and their contractors and subcontractors. The cross-waiver applies to any claim for damages regardless of the legal basis of the claim, including tort and contract. Article 3(2)(d) sets forth a number of exceptions to the waiver:

Notwithstanding other provisions of this Article, this cross-waiver of liability shall not be applicable to . . . claims made by a natural person, his/her estate, survivors, or subrogees for injury or death of such natural persons [, except where the subrogee is a Party].

Agreement Between the Government o f the United States o f America Concerning Cross-Waiver o f Liability for Cooperation in the Exploration and Use o f Space for Peaceful Purposes (Draft), Article 3(2)(d) (Jan. 13, 1995) (brackets in original). Thus, under the draft agreement, the U.S. Government and its agencies would waive all claims, including subrogated claims, against the Japanese govern­ ment, “ related entities,” and employees. As you identified in your submission, there are a number of federal statutes that may create rights in the United States to recover from responsible third parties the amount the United States pays an injured employee in benefits or treatment, including the Medical Care Recovery Act, 42 U.S.C. §2651, the Social Security Act, 42 U.S.C. § 1395y(b)(2)(B)(iii), and the Federal Employees’ Compensation Act, 5 U.S.C. §8131. We were advised that it would be very difficult to identify definitively all sources of subrogated claims. NASA submitted a response setting forth the basis for its position that it pos­ sesses both express and implied statutory authority to enter into broad cross­ waivers of liability in its space activities, including waivers of other federal agen­ cies’ subrogated claims.1 The National Aeronautics and Space Act of 1958, (codi­ fied as amended at 42 U.S.C. §§2451-2484) (“ Space Act” ), establishes NASA and defines its functions and the scope of its authority. In its written submission, NASA interprets section 203 of the Space Act as vesting NASA with authority to waive subrogated claims of other federal agencies. According to NASA, subse­ quent passage of section 308 of the Space Act, an “ Insurance and Indemnification Provision,” ratified this authority. Finally, NASA argues, a provision of the 1 Based upon a subsequent meeting with attorneys from NASA and the Department o f State, we understand that NASA does not claim authority to waive nonsubrogated claims o f other federal agencies, apart from its practice of obtaining express waivers o f claims for damages where the other agencies are entering into agreements with NASA for joint activity. Further, NASA does not presently purport to waive any claims o f the 50 states and the District of Columbia.

141 Opinions o f the Office o f Legal Counsel in Volume 19

Commercial Space Launch Act (“ CSLA” ) expressly granting the Secretary of Transportation authority to waive certain claims of the United States and its agen­ cies, 49 U.S.C. §70112, supports NASA’s interpretation of its authority. See Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Edward A. Frankie, General Counsel, NASA (Feb. 7, 1995) (“ NASA Submission” ). In this memorandum, we first analyze the possible sources of express and implied statutory authority for NASA to waive subrogated claims of other federal agencies. We next discuss alternative basis for waiver of federal claims. Finally, we examine sources of authority to waive states’ claims.

II. Express Statutory Authority

We do not read the Space Act to confer expressly upon NASA the authority to waive subrogated claims on behalf of other federal agencies. NASA relies upon section 203 of the Space Act, 42 U.S.C. §2473, which out­ lines the functions of NASA, to argue that Congress authorized NASA to enter into executive agreements with foreign governments on any terms it deems appro­ priate. NASA states that Congress “ sought to create and foster a unique agency” and that due to its “ distinctive mandate, the agency has been provided with concomitantly distinctive authorities” including authority “ to acquire properties and enter into ‘contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate.' ” NASA Submission at 2, 3 (quoting 42 U.S.C. § 2473(c)(5)). See also NASA Submission at 12, 23. The most natural reading of this passage is that Congress was directing NASA, when it went about its business, to do so according to its best judgment, not that Congress was conferring plenary authority upon NASA to take any and all actions, even those that affected the interests of other governmental entities. Moreover, reading the statute in its entirety makes clear that Congress did not confer the discretion that NASA claims. Section 203(c)(5) provides that NASA may enter into

contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, Territory, or possession, or with any political subdivision thereof, or with any person, firm, association, corporation, or educational institution.

142 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

42 U.S.C. § 2473(c)(5) (emphasis added). Thus, Congress’s broad grant to NASA of discretion to enter into agreements “ on such terms as it may deem appropriate” does not extend to agreements with foreign governments.2 Nor does any other provision of the Space Act confer such authority. Only one provision concerns international agreements. Section 205, 42 U.S.C. §2475, provides that NASA,

under the foreign policy guidance of the President, may engage in a program of international cooperation in work done pursuant to this chapter, and in the peaceful application of the results thereof, pursuant to agreements made by the President with the advice and consent of the Senate.

Nothing in the text of section 205 itself, an OLC legal opinion interpreting the scope of NASA’s authority to engage in international cooperative activity,3 or the President’s signing statement suggests that section 205 should be interpreted as conferring upon NASA the authority to enter into executive agreements con­ taining government-wide waivers of claims. There are as yet no reported decisions interpreting section 205. Finally, Congress amended the Space Act to authorize NASA to provide third party liability insurance to users of NASA’s space vehicles and to indemnify users for third party liability in excess of the insurance coverage. Section 308, 42 U.S.C. § 2458b.4 As discussed below, NASA argues that, in enacting the insurance- 2 This Office previously had noted that there is ' ‘some evidence" in the legislative histoiy that another subsection, 42 U.S.C. §2473(b)(6)(1958), which authorizes NASA to cooperate with other government and public and private agencies, was intended to include foreign governments. Letter for Leonard C. Meeker, Legal Adviser, Department of State, from William H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel at 3 n.I (Apr. 29, 1969). Our review o f that House Report (which accompanied the original 1958 Space Act) found no sim ilar evidence in relation to § 2473(c)(5). H.R. Rep. No. 85-1770 (1958). 3 Although section 205 only expressly authorizes NASA to engage in international programs pursuant to the terms o f treaties entered into by the President, then-Assistant Attorney General Rehnquist concluded that international cooperation in space activity could be carried out pursuant to other forms of international agreements. (The issue before this O ffice was whether NASA had authonty to provide launch services to a foreign government for a domestic communications satellite system and whether it could do so independently o f COMSAT.) In reaching this conclusion, this Office relied upon President Eisenhower’s signing statement in which he declared that he did not construe section 205 as prescribing the only permissible form o f international cooperation, because “ [t]o construe the section otherwise would raise substantial constitutional questions.” Letter for Leonard C. Meeker, Legal A dviser, Department of State, from W illiam H. Rehnquist, Assistant Attorney General, Office o f Legal Counsel at 3—4 (Apr. 29, 1969). 4 42 U.S.C. § 2458b provides in relevant pan: (a) Authorization The Administration is authorized on such terms and to the extent it may deem appropriate to provide liability insurance for any user o f a space vehicle to compensate all or a portion o f claims by third parties for death, bodily injury, or loss o f o r damage to property resulting from activities carried on in connection with the launch, operations or recovery o f the space vehicle. Appropriations available to the A dministration may be used to acquire such insurance, but such appropriations shall be reimbursed to the m aximum extent practicable by the users under reimbursement policies established pursuant to section 2473(c) o f this title. (b) Indemnification Under such regulations in conformity with this section as the Administrator shall prescribe taking into account the availability, cost and terms o f liability insurance, any agreement between the Administration Continued

143 Opinions o f the Office o f Legal Counsel in Volume 19

indemnification system, Congress implicitly approved NASA’s practice of entering into cross-waivers of subrogated claims on behalf of other federal agencies. We do not understand NASA to take the position that section 308 itself expressly authorizes NASA to waive such claims, nor can the statute be read to do so.

III. Im plied Statutory Authority

We understand NASA’s principal argument to be that Congress implicitly authorized NASA to waive subrogated claims on behalf of all federal agencies. First, according to NASA, the legislative history of section 308 of the Space Act (the insurance and indemnification amendment) and 49 U.S.C. §70112 (the insur­ ance provision of the CSLA) demonstrate that Congress was aware of and approved of NASA’s longstanding practice of entering into government-wide cross-waivers of subrogated claims. Second, NASA argues, the insurance-indem- nification regime Congress adopted in section 308 of the Space Act can function effectively only if there are government-wide cross-waivers of subrogated claims. However, neither argument for implied congressional authorization is supported by adequate evidence.

A. Legislative History

As a threshold matter, we note that reliance upon legislative history in inter­ preting a statute is vulnerable to challenge where the statute is unambiguous. City o f Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994); Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). There is no ambiguity in the Space Act regarding NASA’s authority to waive subrogated claims on behalf of the U.S. Government. Granted, there is no express prohibition against NASA taking such action, but where an action as exceptional as waiving the claims of other agencies is concerned, silence should ordinarily not be interpreted as ambi­ guity or authorization. Cf. CSLA, 49 U.S.C. §70112(b)(2) (expressly authorizing the Secretary of Transportation to enter into reciprocal cross-waivers on behalf of the United States and certain agencies). Moreover, NASA overstates the evidence contained in the legislative history. NASA asserts that it had a long history of consistent practice of entering into government-wide cross-waivers of subrogated claims, of which Congress was aware and which it took into account— and thereby implicitly authorized— in

and a user o f a space vehicle may provide that the U nreel States w ill indemnify the user against claims (including reasonable expenses of litigation or settlement) by third parties for death, bodily injury, or loss o f o r dam age to property resulting from activities carried on in connection with the launch, operations or recovery o f the space vehicle, but only to the extent that such claims are not compensated by liability insurance o f the user. Provided, That such indemnification may be limited to claims resulting from other than the actual negligence o r willful misconduct o f the user.

144 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

amending the Space Act to grant NASA authority to insure and indemnify users of its space vehicles and in adopting the waiver provisions of the CSLA. Our review of the legislative history and the executive agreements executed by NASA fails to support NASA’s position in two respects. First, it appears that NASA’s practice has not been uniform. NASA began to execute cross-waivers of liability during the 1970’s as it undertook projects with multiple parties. According to NASA, although the cross-waiver provisions evolved over time and contained minor variations, NASA had an “ open and widely-endorsed seventeen- year practice of requiring the use of broad no-fault, no-subrogation inter-party waivers of liability in its space launch activities.” NASA Submission at 1. NASA has provided a number of examples of the cross-waiver provisions. A review of these agreements indicates that the scope of the waiver varies. Most provisions broadly and generally waive “ claims” ; at least one excludes claims subrogated to the government from the scope of the waiver. More important, there is also variability in the scope of the parties bound by the waiver.5 In most cases, the agreement waives claims of only NASA, not those of other federal agencies; in others, there is ambiguity as to the scope of the parties bound by the waiver.6 Second, the legislative history is inconclusive. NASA emphasizes that it explained its broad and consistent cross-waiver practice to Congress in seeking indemnification authority. According to NASA, Congress relied upon NASA’s practice of entering into cross-waivers in adopting section 308 of the Space Act (granting NASA indemnification and insurance authority) and in subsequently granting the Secretary of Transportation authority to waive claims under the

5 Evaluating the scope o f the waiver actually raises two distinct issues: whether the waiver encompasses claims of other federal agencies as well as NASA, and whether the waiver encompasses subrogated as well as nonsubrogated claims. The Department o f State submitted the narrow question whether NASA has authority to waive subrogated claims o f other federal agencies, and it suggests that a general w aiver o f claims does not necessarily encom pass a waiver o f subrogated claims. Similarly, NASA has focused on demonstrating that it had a long-standing practice o f executing broad waivers that included waivers o f subrogated claims. Although we confine our opinion to the question presented to u s — whether NASA has authority to waive subrogated claims o f other agencies— in o u r view, the issue is not whether NASA has authority to waive subrogated (as opposed to nonsubrogated) claims, but whether it has authority to waive claims, o f whatever sort, o f another agency. We are aware of no principle that would distinguish between subrogated and nonsubrogated claims for the purpose of analyzing w aiver authority. And we are aware of no basis for interpreting a waiver o f “ all claims*' as not including subrogated claims. 6 A number o f agreements provide that “ the parties agree to a no-fault, no-subrogation inter-party w aiver of liability.” In most agreements that we reviewed, “ parties” is defined for the purpose o f the relevant section as “ NASA and the U ser.” However, in some agreements “ parties” is not a defined term, and the preambles state that the agreements are entered into by “ the United States of America represented by the National Aeronautics and Space Adm inistration.” Arguably then, the “ party” agreeing to waive the claim is the U.S. Government. This interpretation is undercut by the fact that the provisions continue to read “ [t]hus, if N A SA ’s property, while involved in STS Operations, is damaged by the User or another user, NASA agrees to be responsible for that Damage and agrees not to bring a claim against or sue any user.” See, e.g.. Agreement for Exchange o f Services Between the United States o f America Represented by the National Aeronautics and Space Administration and Messerschmitt - Bolkow - Blohm GMBH (June 12, 1981). We have identified only two cooperative space agreements that unequivo­ cally waive claims on a government-wide basis. One was executed by the President, the other by the Secretary of State. Agreement Between the United Stales o f America and Ukraine on Cooperation in the Exploration and Use o f Outer Space fo r Peaceful Purposes (Nov. 22, 1994); Agreement Among the Government o f the United States o f America, Government o f Member States o f the European Space Agency, the Government o f Japan, and the Govern­ ment o f Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization o f the Permanently Manned Civil Space Station (Sept. 29, 1988).

145 Opinions o f the Office o f Legal Counsel in Volume 19

CSLA. However, review of congressional reports and hearings reveals that vir­ tually all references to waiver o f claims were to NASA waiving its claims or were silent as to the scope of the parties bound by the waiver. NASA quotes from the Senate Report that accompanied the 1980 NASA Authorization Act (which authorized the insurance-indemnification system). NASA Submission at 12 n.18. However, the Senate Report refers to waivers by NASA of its claims. In discussing the indemnification provision, the Senate and House reports state that, because of the reciprocal waiver, indemnification

would not normally include persons who contract with NASA for launch services, since NASA expects to include in its launch agree­ ments a provision under which the person procuring launch services agrees that he will not make a claim (and that he will hold NASA and other users harmless) for damage to his property or employees caused by NASA, other users or any other person involved. . . . In turn, NASA and other users would promise not to bring a claim against the user for damage to their property or employees.7

Similarly, the General Counsel for NASA, S. Neil Hosenball, testified before the House that

With respect to inter-party liability, i.e., liability between the users and NASA, NASA has under existing authority adopted a no-fault, no-subrogation approach where NASA and each user agree not to bring a claim against the other or any other user for damage to its property or injury or death to its employees.8

NASA also cites to hearings unrelated to section 308 as evidence of congres­ sional authorization. For example, NASA states that it informed Congress during the Space Shuttle Hearings “ that the proposed Shuttle ‘no-fault, no-subrogation cross-waiver was a continuation of the ELV practice.’ ” NASA Submission at 9 n.15. However, the quoted material does not appear at or surrounding the section of hearings cited by NASA.9 O f perhaps greater significance, a written statement submitted by NASA’s General Counsel explains in regard to cross-waivers:

At this point, I would draw a distinction between what we refer to as “ third-party” liability— which involves potential liability for 7 S. Rep. No. 96 -2 0 7 , at 47 (1979), reprinted in 1979 U.S.C.C.A.N. 829, 831. H.R. Rep. No. 96-52, at 225 (1979). 8 1980 NASA Authorization: Hearings on H.R. 1756 Before the Subcomm. on Space Science and Applications o f the House Comm, on Science and Technology, 96th Cong., pt. 4, at 1943 (1979) (statement o f S. Neil Hosenball, General Counsel, NASA, w ith attached memorandum for the record). 9 Space Shuttle Operational Planning, Policy and Legal Issues: Hearings Before the Subcomm. on Space Science and Applications o f the House Comm, on Science and Technology, 96th Cong. 110 (1979).

146 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

damage to property or injury to persons not involved in the Shuttle use — and “ interparty liability” — that is, potential property dam­ age and bodily injury to those flying aboard the Shuttle. With respect to “ interparty” liability, we have adopted a no-fault approach where each party is responsible for insuring (or self- insuring) its own property or employees. Thus, if a user damages the Shuttle in some way, we agree not to press a claim or sue the user. Similarly, if NASA or a user were to damage another user’s payload, the “ damaged” user would not sue NASA or the other user.

We located only one reference to a government-wide waiver of claims. NASA submitted a written statement to a Senate subcommittee, which states that:

All Users of the STS and the U.S. Government will agree not to make a claim or bring a legal action against each other for negligent or other acts resulting in injury or death of employees or damage or loss to property at the launch or landing site or during flight. . . .

The U.S. Government will agree to waive its right of action against STS Users for their negligent or other acts resulting in injury or death to U.S. Government employees or damage to the Orbiter, the STS system or other U.S. Government property at the launch or landing site or during flight.10

Clearly, on its face and considered in isolation, this indicates that NASA was purporting to waive claims on behalf of the U.S. Government. When considered in context, however, it can be accorded little, if any, weight. First, this testimony was provided in the form of written answers to questions submitted in order to expedite the proceedings; there is no way to know by whom the written answers were ever considered. Second, NASA makes clear that its described policy regarding liability issues was “ tentative,” “ undergoing review in NASA,” and subject to review and comment by potential users. A tentative policy statement submitted in writing to a subcommittee of Congress cannot be interpreted as congressional ratification of that policy; otherwise any statement submitted to any one of the numerous congressional subcommittees would constitute ratification of the submission absent explicit rejection by Congress. See McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 494 (1931) (“ [Individual expressions” made to Committees of Congress or in discussions on the floor of the Senate, “ are without 10NASA Authorization for Fiscal Year 1979: Hearings on S. 2527 Before the Subcomm. on Science, Technology, and Space o f the Senate Comm, on Commerce, Science, and Transportation, 95th Cong., pt. 1, at 131, 132 (1978) ( “ NASA Authorization FY 1979” ).

147 Opinions o f the Office o f Legal Counsel in Volume 19

weight in the interpretation of a statute.” ); Kelly v. Robinson, 479 U.S. 36, 51 n.13 (1986) (refusing to “ accord any significance” to comments made at hearings that were not made by Members of Congress and were not included in the Official House and Senate Reports).11 Finally, this single reference to a government-wide waiver must be balanced against the numerous references to a waiver by NASA of its claims.12 The legislative history of the CSLA also is not as clear as NASA represents. In its submission, NASA states that “ in authorizing the Secretary of Transpor­ tation to waive all claims on behalf of the U.S. Government, the Congress observed that such broad inter-party waivers of liability ‘are a standard element in all [NASA] launch contracts.’ ” NASA Submission at 21. In fact, this reference to the standard element in NASA contracts was made in connection with 12 11 In its subm ission, NASA continues to d raw from this written subcommittee testimony as follows: More specifically, however, NASA w ent on to address the very issue o f subrogation for the Administration in this context by declaring that: [T]his risk o f liability to the U se r is lessened by the fact that the U.S. Government is frequently subrogated to the rights o f an injured Government employee under the [Federal Employees Com­ pensation Act] (5 U.S.C. 8131-8132). . . . This will tend to lessen the frequency of actions brought by an injured Government employee, [citation omitted] The cross-w aiver was to be an inter-party waiver and, therefore, did not purport to reach the claims of individual persons, w hether military, civil servant or contractor employees. All individuals were treated as third parties rather than second parties. What would be waived, as the quote makes clear, would be subrogated claims o f the Government after it had paid for compensation to an employee for Shuttle work- related injuries. NASA Subm ission at 10 & n.16. The sentence that NASA deleted from its quotation, together with the surrounding materia], however, supports a different interpretation. The section in its entirety states* STS Users would continue to be exposed to a risk o f liability if a NASA employee was injured or damaged or if a NASA contractor o r one o f its employees was injured o r damaged and recovery was sought by the NASA employee, NASA contractor o r NASA contractor employee. This risk o f liability to the User is lessened by the fact that the U.S. Government is frequently subrogated to the rights o f an injured Government employee under the Federal act providing for compensation to G overnm ent employees for work injuries. Under this Act, the United States may be entitled to 80% o f the am ount recovered from the negligent User (5 U.S.C. 8131-8132). This will tend to lessen the frequency o f actions brought by an injured G overnment employee. NASA A uthorization FY 1979 at 132. W hen read in its entirety, it is clear that the section addresses Shuttle users' continued exposure to third-party claims from employees and other natural persons. The reference to subrogation is by way of explaining that the frequency o f such suits would tend to be reduced by the fact that the person would retain only 20% o f any recovery. This passage does not inform one way or th e other whether it was contemplated that the government would pursue or waive any claim s it may have. 12ln addition to those discussed above, see also H.R. Rep. No. 9 6 -5 2 , at 225 ( “ Indemnification would only be applicable to claims o f third parties w h o are defined in subsection 308(aXD(3) . . . . It is envisaged that a third party would not norm ally include persons who contract with NASA for launch services, since NASA expects to include in its launch agreements a provision under which the person procuring launch services agrees that he will not make a claim . . . for damage . . . . In turn, NASA and other users would promise not to bring a claim against the user for damage to their property or em ployees.” ); S. Rep. No. 96-207, at 47 (same), reprinted in 1979 U .S.C.C.A.N. at 831; International Space Activities, 1979: Hearings Before the Subcomm. on Space Science and Applications o f the House Comm, on Science and Technology, 96th Cong. 22 (1979) ( “ The U.S. Government would not be responsible for damage to another country’s materials processing o f scientific equipment on the Shuttle or during other space transportation system operations. W e will include a cross-waiver provision in each Shuttle Launch Services A greem ent whereby both NASA an d the user, including foreign countries, agree to a no-fault, no-subrogation w aiver o f liability under which NASA and the user will be solely responsible for any damage to its own property involved in such operations.” ); see also G erald J. Mossinghoff, Managing Tort Liability Risks in the Era o f the Space Shuttle, 1 J. Space L. 121, 124 (1979) ( “ NASA has under existing authority adopted a no-fault, no-subrogation approach w hereby NASA and each user agree not to bring a claim against the other or any other user for dam age.” ).

148 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

subparagraph (c), which requires so-called flow-down clauses binding users and contractors to the waiver. Two paragraphs later, the report addresses the subpara­ graph that authorizes the Secretary of Transportation to enter into government- wide waivers; the report makes no reference to NASA’s practices. S. Rep. No. 100-593, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 5525, 5538. Again, where there is reference to the scope of the parties bound by the reciprocal waiver of claims, it is to NASA’s waiver of its claims.13 NASA further states that the Department of Justice previously had reviewed and approved the waiver authority NASA now asserts. Even if this were so, it would not, of course, validate an otherwise invalid practice. According to NASA, in reviewing the proposed insurance-indemnification amendment, the Department of Justice “ raised no objection to the waiver of U.S. Government claims based on its understanding of the planned broad no-fault, no-subrogation cross-waiver.” NASA Submission at 11. The Department of Justice letter to which NASA refers, however, states that the department’s conclusion was based on a memorandum prepared by NASA;14 that memorandum refers only to waivers of claims that NASA may have:

With respect to inter-party liability, i.e., liability between the users and NASA, NASA is able under present authority to adopt a no­ fault, no-subrogation approach where NASA and each user agree not to bring a claim against the other or any other user for damage to its property or injury or death to its employees.15

Finally, NASA argues that its practice of waiving “ claims” generally should be broadly construed to include subrogated claims, and further points to its ref­ erences in congressional submissions to its waiver of subrogated claims to argue that, since there is no vehicle by which NASA can become a subrogee, its waiver 13 H.R. 3765, The Commercial Space Launch Act Amendments: Hearings Before the Subcomm. on Space Science and Applications o f the House Comm, on Science, Space, and Technology, 100th Cong. 12 (1988) ( “ NASA’s standard launch services agreement, or LSA, evolved over a long period o f time . . . . Perhaps the area which has been the most controversial and difficult to work out is the sharing o f liability risks between NASA and its customers. . . . With regard to damage to persons and property, NASA decided that, in order to facilitate the use of the Space Shuttle and to simplify the allocation o f risks, a cross-waiver policy would be put in place as a standard LSA provision. Under this policy, NASA and all Shuttle users agree to a no-fault, no-subrogation, inter-party waiver of liability. . . .” ) 14 Letter for the Honorable James T. McIntyre, Jr., Director, Office o f Management and Budget, from Patricia M. Wald, Assistant Attorney General, Office o f Legislative Affairs (Dec. 1978) (Attachment 8 to NASA Submission). 15 NASA Memorandum for the Record, “ Proposed Section 308 o f the National Aeronautics and Space Act o f 1958: ‘Indemnification and Insurance’ ” (Dec. 5, 1978). NASA also refers to a 1987 letter from NASA to OLC, in which NASA refers to OLC’s review of “ a proposed Space Station inter-party waiver clause.” In its current submission, NASA states that the agreements of interest to OLC “ each included an express waiver o f subrogated claim s." NASA cites as a typical example an agreement containing a provision whereby “ ‘[T]he Parties hereto agree to a no-fault, no subrogation, inter-party w aiver of liability.’ ” The attachment to which NASA refers does not appear to contain the quoted agreement. Thus we are unable to determine w hether the waiver was restricted to NASA or whether NASA was purporting to waive claims on behalf o f other agencies. NASA Submission at 24-25, Attachment 23 (Letter for John P. Giraudo, Attomey- Advisor, O ffice o f Legal Counsel, from Edward A. Frankie, Deputy General Counsel, NASA.)

149 Opinions o f the Office o f Legal Counsel in Volume 19

of subrogated claims must be understood as a waiver of other agencies’ claims. Even assuming the truth of the factual predicate — that NASA could never be a subrogee — we do not find this dispositive. First, the vast majority of the discus­ sion in Congress did not refer specifically to subrogated claims. Second, even assuming that Congress was aware that the waivers encompassed subrogated claims, in light of the fact that NASA and the other party to the agreement “ flowed down” the waiver to users and contractors, any reference to subrogated claims could be understood as applying to insurers of the users and contractors.16 Finally, and most important, this connection is simply too attenuated and subtle to constitute the basis for finding congressional authorization for such an excep­ tional act as one agency waiving claims of other agencies.

B. Logic o f Insurance-Indemnification System

NASA argues that, in amending the Space Act to authorize NASA to provide insurance and indemnification, Congress must be interpreted as having either rati­ fied or granted NASA authority to execute government-wide cross-waivers of sub­ rogated claims because the effectiveness of the insurance-indemnification regime depended upon such waivers. Section 308 of the Space Act authorizes NASA to provide liability insurance for users of a space vehicle to compensate them for claims by third parties. (In practice, with the aid of NASA, users were able to obtain such third-party liability insurance from private insurers.) In addition, Congress authorized NASA to indemnify users for third-party loss above the amount of the insurance.17 Thus, according to NASA, the scheme consisted of three parts: the existing inter-party cross-waiver of claims; insurance covering third-party liability — which NASA states could only be obtained at a reasonable rate because it had removed the largest class of claims, those between the parties; and U.S. indemnification of catastrophic loss above that covered by insurance— which NASA states could be justified in light of the broad cross-waiver. NASA argues that the indemnifica­ tion authority is “ inextricably linked to the cross-waiver described to the Congress and implemented in accordance with policies and procedures established under the agency’s broad discretionary authorities provided in . . . 42 U.S.C. § 2473(c).” NASA Submission at 12. As we understand the three-part regime, however, the government-wide cross­ waiver of subrogated claims, however sensible, is not “ inextricably linked” with the insurance-indemnification regime adopted in section 308. Under the terms of

i6See NASA A uthorization FY 1979 at 132. ( “ This risk o f liability [to the User for damage to property or em ployees o f the U nited States] may also be mitigated by action taken as a result of a NASA study now under way on the feasibility o f including a provision in N A SA 's contracts that would require NASA contractors to obtain insurance w ithout the right o f subrogation, which would provide insurance payable to themselves and their employees for dam age and injury caused by other Users in the course o f STS operations.” ). 17 See supra note 4.

150 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

at least the draft agreement with Japan and the Intergovernmental Agreement among the United States, Member States of the European Space Agency, Japan, and Canada,18 the cross-waivers do not extend to extinguish claims brought by “ natural persons.” And at least under the terms of the Medical Care Recovery Act and the application of FECA, the U.S. Government would recover only the amount it had expended in providing medical or other support to the injured per­ son. Thus, unless the injured person assigned his or her entire cause of action to the U.S. Government, in many, if not most cases, the amount recovered by the United States in pursuing subrogated claims is likely to be quite limited in comparison to that potentially obtained by the individual. Since, as NASA explains, the cross-waiver does not purport to reach the claims of individual per­ sons and all individuals would be treated as third parties, it is difficult to see that waiver of inter-party claims would affect third party insurance rates or indem­ nification costs. Moreover, as NASA emphasizes, NASA contractually extin­ guishes the bulk of nonsubrogated claims of other federal agencies that are either users or contractors by executing mutual waivers of claims and “ flowing-down” the waiver to subcontractors and customers. Finally, according to NASA, the real financial exposure was to the risk that the launch vehicle and other payloads would be destroyed. This is precisely the exposure that is eliminated by the waivers among and between the users and NASA. And this presumably is what made the insurance premium affordable. Even if we are incorrect in our assumptions regarding the actual operation of the insurance-indemnification regime, the link between enactment of section 308 of the Space Act .and the waiver authority NASA claims— that insurance pre­ miums and indemnification would be more affordable — is not sufficiently direct or express to constitute congressional authorization. Finally, NASA argues that the waiver provision contained in the CSLA is based upon and must be read to reaffirm NASA’s government-wide cross-waivers of subrogated claims. (As stated above, the CSLA expressly authorizes the Secretary of Transportation to enter into reciprocal waivers “ for the Government, executive agencies of the Government involved in launch services, and contractors and sub­ contractors involved in launch services.” 49 U.S.C. §70112(b)(2).) Rather, if any­ thing, the CSLA waiver provision undercuts NASA’s argument that the Space Act provides the necessary authorization; the waiver provision of the CSLA dem­ onstrates what Congress does when it wishes to authorize government-wide waivers. Moreover, the waiver authority contained in the CSLA is more narrow than that asserted by NASA under the Space Act; it extends only to those agencies involved in launch services. On its face, it would not apply to agencies that are

18 Agreement Among the Government o f the United States o f America, Government o f Member States o f the Euro­ pean Space Agency, the Government o f Japan, and the Government o f Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization o f the Permanently Manned Civil Space Station (Sept. 29, 1988).

151 Opinions o f the Office o f Legal Counsel in Volume 19

subrogated to claims or that have direct claims to reimbursement by virtue of providing care or resources to injured persons.

IV. President’s Constitutional Authority

We have concluded that the President may enter into international agreements providing for the waiver of subrogated claims of federal agencies in return for a reciprocal waiver from the other State. This conclusion, however, is subject to the following challenges and limitations. The President’s authority to enter into international agreements containing such a waiver derives principally from his constitutional authority to conduct foreign affairs. The Constitution has long been interpreted to grant the President plenary authority to represent the interests of the United States in dealings with foreign States, subject only to limits specifically set forth in the Constitution or to such statutory limitations that the Constitution permits Congress to impose by exercise of its enumerated powers.19 As part of this authority, the President may enter into “ sole” executive agreements — international agreements based on the Presi­ dent’s own constitutional powers.20 Although the President’s authority to enter into sole executive agreements is well established, the precise limitations that may exist on the proper scope of those agreements is far from settled. As one commentator has noted, “ [c]onstitutional issues and controversies have swirled about executive agreements concluded by the President wholly on his own authority. . . . Periodically, Sen­

19 M emorandum for the A ttorney General, from Charles J. Cooper, Assistant Attorney General, Office o f Legal C ounsel, Re: Legal Authority fo r Recent Covert Arms Transfers to Iran (Dec. 17, 1986); Letter for the Honorable David L. Boren, Chairman, Senate Select Com m ittee on Intelligence, U nited States Senate, from John R. Bolton, A ssistant Attorney G eneral, Office of Legislative Affairs (Nov. 13, 1987). See generally United States v. Curtiss - Wright Export Corp., 299 U.S. 304, 319-20 (1936) (Power o f the President as “ the sole organ o f the federal govern­ ment in the field o f international relations . . . does not require as a basis for its exercise an act o f Congress.” ) In Curtiss-Wright, the Court drew a distinction between the President's relatively limited inherent powers to act in the dom estic sphere and his far-reaching discretion to act on his own authority in managing the external relations o f the United States. W aiving claims of, fo r example, the Departments o f Labor or Health and Human Services to recover expenses incurred in providing resources to injured workers implicates domestic as well as foreign affairs. However, as a leading commentator notes in discussing limits to treaty-making power, “ [mjatters o f international concern are not confined to matters exclusively concerned with foreign relations. Usually, matters o f international concern have both international and domestic effects, and the existence o f the latter does not remove a matter from international concern.” Louis Henkin, Foreign Affairs and the Constitution 1S3 (1972) (quoting Restatement of the Law o f U nited States Foreign Relations §117(1)). Moreover, to the degree domestic interests are implicated, they arise in areas in which the President possesses considerable authority, as discussed below. 20 United States v. Belmont, 301 U.S. 3 2 4 (1937); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore v. Regan, 453 U.S. 654 (1981); Restatement (Third) o f The Foreign Relations Law o f the United States §303(4) (1987) ( “ R estatem ent” ) ( “ Subject to [the prohibitions or limitations in the Constitution applicable to the exercise o f authority by the U nited States] the President, on his own authority, may make an international agreement dealing w ith any m atter that falls w ithin his independent powers under the Constitution.” ); see also State Department Proce­ dures on Treaties and O ther International Agreements, C ircular 175 (Oct. 25, 1974) ( “ Circular 175” ), reprinted in 1 United States Foreign Relations Law: Documents and Sources 201 (Michael J. Glennon & Thomas M. Franck eds., 1980). W e note that government-wide waivers o f subrogated claim s could be implemented through treaties or congres­ sional-executive agreements. W e focus h ere on sole executive agreements, based on our understanding that NASA and the State Department seek advice on th e availability o f alternatives to congressional authorization.

152 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

ators (in particular) have objected to some agreements, and the Bricker Amend­ ment sought to curtail or regulate them, but the power to make them remains as vast and its constitutional foundations and limits as uncertain as ever.” 21 The leading cases on sole executive agreements support— though not unequivo­ cally— the President’s authority to enter into agreements disposing of government claims. In United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942), the Court upheld the validity of the Litvinov Assign­ ment, by which, through exchange of diplomatic correspondence, the Soviet Union assigned to the United States its claims against U.S. nationals. The Litvinov Assignment was part of an overall settlement of claims between the Soviet Union, the United States, and their nationals, undertaken to clear the way for United States recognition of the Soviet government. The Belmont and Pink opinions establish the President’s broad authority to enter into sole executive agreements that deal with international claims. However, the Litvinov Assignment was executed pursuant to the President’s recognition of the Soviet Union, and the opinions rely in part on that fact. Accordingly, it could be argued that they support only the limited proposition that the President may enter into sole executive agreements that accompany the exercise of his core power to recognize foreign governments. We reject this narrow reading. The opin­ ions impose no such restriction, but rather, find authority for the Assignment in the President’s authority as “ sole organ” of the federal government in the field of international relations 22 Even so, Belmont and Pink are not dispositive because, although the Litvinov Assignment anticipated an overall settlement of claims between the two governments, the Assignment itself appears only to have involved the assignment of Soviet claims to the United States — not the release by the United States of its claims.

21 Henkin, Foreign Affairs and the Constitution at 177 (footnotes omitted). See also Restatement §303, reporters’ note 11 ( “ Efforts to define the constitutional limits on the President’s authority to make sole executive agreements . . . have been resisted by the Executive Branch and have not gained wide acceptance in C ongress."); Peter M. Shane & Harold H. Bniff, The Law o f Presidential Power 543 (1988) (noting the lack of any “ principled line” to identify the limit o f constitutional sole executive agreements: “ The Supreme Court has not yet held any executive agreement ultra vires for lack o f Senate consent, nor has it given other guidelines that might define the President’s power to act alone. M embers o f the Senate have periodically charged presidential usurpation, but have not articulated plausible limits to presidential power. . . . Presidential practice, too, has not reflected any principle o f lim itation.'’). 22 See Department o f State Legal Adviser’s Reply to Senate Office o f Legislative Counsel Memorandum on Certain Middle East Agreements (Oct. 6, 1975), reprinted in 1 United States Foreign Relations Law: Documents and Sources 295 (Michael J. Glennon & Thomas M. Franck eds., 1980) (rejecting the argument that Belmont and Pink should be nanow ly interpreted as only authorizing agreements pursuant to recognition of foreign states); Henkin, Foreign Affairs and the Constitution at 178-79 ( “ Sutherland in fact seemed to find authority for the Litvinov Agreement not in the President’s exclusive control o f recognition policy but in his authority as ‘sole organ,' his ‘foreign affairs power’ which supports not only recognition but much if not most other foreign policy.” ). At the same time. Professor Henkin rejects a fully expansive reading. “ There have indeed been suggestions, claiming support in Belmont, that the President is constitutionally free to make any agreement on any matter involving our relations with another country. . . . As a matter o f constitutional construction, however, that view is unaccept­ able, for it would wholly remove the ‘check’ o f Senate consent which the Framers struggled and compromised to write into the Constitution. One is compelled to conclude that there are agreements which the President can make on his sole authority and others which he can make only with the consent of the Senate, but neither Justice Sutherland nor any one else has told us which are w hich." Id. at 179.

153 Opinions o f the Office o f Legal Counsel in Volume 19

In Dames & Moore v. Regan, 453 U.S. 654 (1981), the Court upheld the Presi­ dent’s authority to suspend individuals’ claims pursuant to an executive order that, among other things, established the U.S.-Iran Claims Tribunal. In addition to relying upon the “ general tenor” of the International Emergency Economic Powers Act, the Hostage Act, and the International Claims Settlement Act23 (which the Court found implicitly to authorize the challenged executive action), the Court emphasized the U.S. Government’s longstanding practice of exercising its sovereign authority to settle claims of its nationals against foreign governments and noted that those settlements frequently occur through executive agreements 24 If the President has authority to dispose of claims of individuals in furtherance of U.S. foreign policy objectives, it would seem reasonable to conclude that he must have authority to waive claims of federal agencies. Dames & Moore, how­ ever, did not so squarely raise separation of power concerns. Here, arguably, the President would be encroaching on Congress’s control over the federal fisc by declining to recover monies otherwise subject to claim by the United States.25 Although this argument is not without force, we are not persuaded by it in its current context, and we conclude that there would be no impermissible encroach­ ment upon congressional authority. First, this is not an instance of the executive branch bestowing a unilateral gift. The waivers are mutual. The United States is getting what it gives. More important, the President’s action must be considered against the backdrop of the statutes governing NASA and its operations. By enacting the insurance-indemnification scheme, Congress expressed its intent to commit very substantial resources to support NASA’s activities. In contrast to the indemnification system of the CSLA, which caps the government’s indem­ nification at a certain amount, Congress granted NASA unlimited indemnification authority. In addition, Congress endorsed a program of international cooperation, placed NASA under the foreign policy guidance of the President, and granted the President the authority to enter into international agreements to promote inter­

est) U.S.C. § 1701; 22 U.S.C. § 1732; 2 2 U.S.C. §§ 1621-1645. respectively. 34See also Ozanic v. United States, 188 F.2d 228, 231 (2d Cir. 1951) (Hand, J.) (“ The constitutional power o f the President extends to the settlement o f mutual claims between a foreign government and the United States, at least when it is an incident to the recognition o f that government; and it would be unreasonable to circumscribe it to such controversies. The continued m utual amity between the nation and other powers again and again depends upon a satisfactory comprom ise of mutual claims; the necessary pow er to make such compromises has existed from the earliest tim es and [has] been exercised by the foreign offices o f all civilized nations.'*); Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L J . 1255 (1988) (noting the great deference accorded to presidential authority by the model of statutory analysis adopted in Dames & Moore). 25 For exam ple, the Constitution dictates that only Congress can appropriate money. U.S. Const, an. 1, §9 , cl. 7. And courts have suggested that the President may not act alone to dispose o f property under Article IV. See Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert, denied, 436 U.S. 907 (1978). We do not find these restrictions dispositive because appropriations are not properly equated with waivers o f claims, and the property referenced in Article IV o f the Constitution does not appear to encom pass inchoate claims for damages. Id. at 1059 (reviewing debates o f C onstitutional Convention and state ratifying conventions to demonstrate that the property clause was intended to delineate the role played by th e central government in the disposition o f Western lands).

154 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space A ctivity

national cooperation.26 Finally, Congress has at least implicitly approved of the long-standing practice of NASA and other federal agencies that are using NASA’s services waiving their own claims for damages, which likely represents the greatest risk of financial exposure to the United States.27 Taken together, we believe that this statutory framework supports the conclusion that the President would not encroach upon congressional authority by entering into a mutual waiver of claims with a foreign State. Moreover, waiving claims for damages coincides with two other sources of Presidential power: the Presi­ dent’s prosecutorial discretion and his authority as chief administrator of the executive branch.28 Conceptually, a waiver operates similarly to a decision not to pursue a certain class of claims — an executive decision that is generally within the prerogative of the President.29 We further conclude that the President may delegate this authority to an appro­ priate agency head. The President is generally authorized under 3 U.S.C. §301 to delegate to heads of executive agencies “ any function which is vested in the President by law.’’ This Office has interpreted §301 as conferring a very broad grant of delegation authority. However, the legislative history indicates that §301 was intended only to authorize the delegation of functions vested in the President by statute.30 26 42 U.S.C. §2475. A lthough the statute refers only to treaties. President Eisenhower and this Office interpreted the statute as authorizing other forms o f international executive agreements. See supra note 3. 27 See supra note 12. 28 See Myers v. United States, 272 U.S. 52 (1926); Heckler v. Chaney, 470 U.S. 821 (1985); The Jewels o f the Princess o f Orange, 2 O p. Att’y Gen. 482, 491-92 (1831) ( “ Upon the whole, I consider the district attorney as under the control and direction o f the President . . . and that it is within the legitimate power o f the President to direct him to institute o r to discontinue a pending suit . . . Shane & Bruff, The Law o f Presidential Power at 327 (quoting Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 44 (1987) ( “ The President retains the constitutional power to direct the officer to take particular actions within his or her discretion or to refrain from acting when the officer has discretion not to a c t/'). 29 We n o te th a t, like treaties, an executive agreement authorizing the waiver o f claims would be superseded by subsequent contrary congressional action. Furthermore, unlike treaties, a sole executive agreement may not be effec­ tive in the face o f prior inconsistent legislation. Thus, if there is an extant statute requiring an agency to bring suit to recover certain costs, an executive agreement to the contrary may have no effect. According to Henkin, the Supreme Court has expressly declined to consider this issue. Henkin, Foreign Affairs and the Constitution at 186. See United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953) (holding that an executive agreement will not be given effect as against an earlier act o f Congress), a ffd , 348 U.S. 296 (1955); Circular 175 at 205 (“ The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise o f its constitutional authority/'); Restatement §303 cmt. j (status o f sole executive agreements in relation to earlier congressional legisla­ tion has not been authoritatively determined); Oliver J. Lissitzyn, The Legal Status o f Executive Agreements on Air Transportation, 17 J. A ir L. & Com. 436, 444 (1950) ( “ [W]hile a treaty, if self-executing, can supersede a prior inconsistent statute, it is very doubtful whether an executive agreement, in the absence of appropriate legislation, will be given similar effect.” ); see also Memorandum for the Honorable David Stockman, Director, Office of Management and Budget, from L any L. Simms, Acting Assistant Attorney General, Office of Legal Counsel, Re: Proposed Executive Order on Federal Regulation at 3 (Feb. 12, 1981) ( “ [TJhe President’s exercise o f supervisory powers must conform to legislation enacted by Congress. In issuing directives to govern the Executive Branch, the President may not, as a general proposition, require o r permit agencies to transgress boundaries set by Congress.” (footnote omitted)). 30The House Report o f the precursor statute to §301 states that “ it should be understood that the functions, as set out in this bill, refer to those vested in the President by statutory authority, rather than those reposing in the President by virtue o f his authority under the Constitution o f the United States.” H.R. Rep. No. 81-1139, at Continued

155 Opinions o f the Office o f Legal Counsel in Volume 19

The scope and source of the President’s authority to delegate responsibility con­ ferred upon him by the Constitution is less clear. We have recognized that the President possesses “ inherent” authority to delegate, and that this is not restricted to delegation of duties conferred by statute.31 In Myers v. United States, 272 U.S. 52, 117 (1926), the Court declared the general principle sustaining the delegation by the President of the exercise of his executive authority:

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.

We have endorsed the statement of the exception to this general rule expressed by one commentator that

Where . . . from the nature of the case, or by express constitutional or statutory declaration, the personal, individual judgment of the President is required to be exercised, the duty may not be trans­ ferred by the President to anyone else.32

Thus, this Office has concluded that the President may not delegate his authority to undertake specific functions that are expressly vested in him by the Constitu­ tion, such as to grant a pardon, or to transmit and proclaim the ratification of a treaty.33 And we have suggested that there may be greater limits on his delega­ tion authority in the area of foreign affairs. For instance, we have advised that it would be “ safer” to conclude that the President may not delegate his authority to terminate international trade agreements, and to carry out certain duties relating to military assistance, defense programs, and foreign aid. This limitation is based on the view that these were “ basic decisions relating to international relations and involve[d] far-reaching policy considerations.” 34 The waivers at issue here, in contrast, do not implicate, at least in their individual application, far-reaching

2 (1949). In addition, there are numerous references to the need to provide for delegation of statutory duties in other legislative history. S. Rep. No. 8 1 - 1867, (1950), reprinted in 1950 U.S.C.C.A.N. 2931. 31 “ In none o f the Reports o f the Congress [concerning 3 U.S.C. § § 301-303] is there any definition o f the inherent right o f the President to delegate the performance o f functions vested in him, but both Reports, as well as the Act, recognize that the President has such an inherent right*’ to the extent “ reasonably necessary in executing the express powers granted to him under the Constitution and Laws of the United States for the proper and efficient adm inistration o f the executive branch o f governm ent.” Memorandum from Office o f Legal Counsel, Re: President’s Authority to Delegate Functions at 3 (Jan. 24, 1980) ( “ Generally, it may be said that the inherent rights or implied pow ers o f the President are ail those vast powers which are reasonably necessary in executing the express powers granted to him under the Constitution and Laws o f the United States for the proper and efficient administration o f the executive branch o f government.” ). 32 M emorandum , Re: President’s Authority to Delegate Functions (Jan. 24, 1980) (quoting Willoughby, Constitu­ tion, Vol. II, p. 1160). 33 M emorandum from the Office of Legal Counsel, Re: Delegation o f Presidential Functions, (Sept. 1, 1955). 34 Id. at 7.

156 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

policy considerations. The President would exercise his individual judgment that mutual, government-wide waivers under these particular circumstances are in the public interest; he would delegate merely the application of that judgment to par­ ticular agreements. Accordingly, we conclude that the President may delegate his authority to enter into mutual waivers of claims for damages that arise pursuant to cooperative space activity.

V. Authority to Waive States’ Claims

You have also asked us to advise whether the federal government could bind the fifty states and the District of Columbia to a waiver of state claims. NASA correctly notes that under the terms of its agreements, it does not purport to waive states’ claims. However, when federal states enter into international agreements, they are generally viewed as binding their constituent units as well as the central government.35 Moreover, absent an express agreement to the contrary, the central government generally is responsible for the failure of the constituent units to fulfil their legal obligations.36

33 Memorandum for W alter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Conrad K. Harper, Legal Adviser, Department o f State (May 5, 1995). 36 Ivan Bernier, International Legal Aspects o f Federalism 88 (1973) (As a matter o f international law, “ there can be no doubt that a federal state is responsible for the conduct o f its member states.’*). According to the Restate* ment, federal states sometimes have sought special provisions in international agreements to take account of restric­ tions upon the power o f the central government to deal with certain matters by international agreement. “ Som e proposed ‘federal-state clauses’ would permit a federal state to leave implementation to its constituent units, incurring no violation of international obligation if implementation fails. Even without a special provision, a federal state may leave implementation o f its international obligations to its constituent units, but the central government remains responsible if the obligation is not fulfilled.” Restatement § 302, reporters’ note 4. We note that the State Department construed the “ flow-down” clause o f the Intergovernmental Agreement Among the United States, Member States o f the European Space Agency, Japan, and Canada (w hich obligates each signatory to extend the cross-waiver o f liability to its ow n related entities) as follows: Each Partner may decide how it mtends to implement this obligation, for example, by including the cross- waiver in its contracts with related entities, by enacting legislation, o r by any other appropriate means. However, if a Partner had reason to believe that the cross-waiver would not be enforceable under its laws, that Partner should take reasonable steps to enforce the cross-waiver by alternative means, such as by legislation. The Partner’s obligation under this paragraph is to take the necessary and appropriate steps to achieve the result; however, it is not an obligation to guarantee the result. Thus, it was recognized that, under extraordinary circumstances, a Partner’s domestic court might not enforce the cross-waiver, and that Partner would not be responsible for the resulting liability on the theory that it had breached an obligation. At the same time, a Partner could be expected to take certain steps to minimize the likelihood of such cases. Memorandum o f Law from Alan J. Kreczko, Deputy Legal Adviser, Department of State, Re: Circular 175: Request for Authority to Conclude an Intergovernmental Agreement with Member States o f the European Space Agency, Japan, and Canada and Implementing Memoranda o f Understanding Between NASA and the European Space Agency, Canada’s Ministry o f State for Science and Technology, and the Government o f Japan on Cooperation in the Detailed Design, Development, Operation, and Utilization o f the Permanently Manned Civil Space Station at 15-16. It is not clear from the State Department’s memorandum what the basis was for its interpretation and conclusion (e.g., a subsequently deleted provision) and w hether the interpretation applied to the cross-waiver generally or only the “ flow-down” obligation. If it did not apply to the cross-waivers between the various governments, and absent any other provision, then if a U.S. state successfully brought suit against Japan for damages sustained from activities undertaken pursuant to the agreement between the United States and Japan, Japan might have a claim against the United States for indemnification.

157 Opinions o f the Office o f Legal Counsel in Volume 19

It is a fundamental principle of our constitutional law that our foreign affairs are governed by the federal government and that the state governments may not interfere.37 Moreover, sole executive agreements that purport to create legal obligations, like statutes and treaties, are “ the supreme Law of the Land” for purposes of the Supremacy Clause, U.S. Const, art. VI, cl. 2, and thus bind the states.38 Accordingly, it would seem that there would be no question but that the federal government could, in pursuance of its foreign policy objectives, pro­ hibit states from bringing certain claims against foreign countries. Yet, as Pro­ fessor Henkin notes, despite many such “ light, flat statements” that U.S. foreign relations are strictly national, they “ are not in fact wholly insulated from the States.” 39 Not surprisingly, the scope of state authority in this regard is not well defined. The Supreme Court has upheld limitations imposed on the states by the federal government in matters concerning foreign affairs. In both Belmont and Pink, the Court held that the Litvinov Assignment— a sole executive agreement— would prevail over any inconsistent state policy.40 In Zschernig v. Miller, 389 U.S. 429 (1968), the Court held that Oregon inheritance law that required probate courts to inquire into the type of government in particular foreign countries before

37See e.g., Belmont, 301 U.S. at 331 ( “ [C]omplete pow er over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part o f the several states. In respect o f all international negotiations and compacts, and in respect o f our foreign relations generally, state lines disappear.” (citations omitted)); Pink, 315 U.S. at 2 3 2 ( “ If state laws and policies did not yield before the exercise o f the external pow ers o f the U nited States, then o u r foreign policy might be thwarted These are delicate matters. If state action could defeat o r alter our foreign policy, serious consequences m ight ensue. The nation as a whole would be held to answ er if a State created difficulties with a foreign power.” ); Laurence H. Tribe, American Constitutional Law § 4 -6 , at 230 (2d ed. 1988) (noting th e general constitutional principle that, “ whatever the division of foreign policy responsibility within the national governm ent, all such responsibility is reposed at the national level rather than dispersed among the states and localities” ). 38 Restatem ent § 1 , reporters* note 5 ( “ There are no clear cases, but principle would support the view that the federal governm ent can preempt and exclude the States not only by statute but by treaty or other international agree­ ment, and even by executive acts that are within the President's constitutional authority.” ); Restatement §115, reporters’ note 5 ( “ A sole executive agreem ent made by the President on his own constitutional authority is the law o f the land and supreme to State l a w / ’); Memorandum for Conrad Harper, Legal Adviser, Department of State, from W alter D ellinger, Assistant Attorney General, O ffice o f Legal Counsel, Re: Enforceability o f Penalty-Related Assurances Provided to Foreign Nations in Connection with Extradition Requests (Nov. 18, 1993) (noting that sole executive agreem ents, valid under the President's own constitutional powers, preempt inconsistent state laws). 39 Henkin, Foreign Affairs and the Constitution at 228. 40 United Stales v. Belmont, 301 U.S. 3 2 4 (1937); United States v. Pink , 315 U.S. 203 (1942). Again, it could be argued that Belmont and Pink are distinguishable because they involved the President's exclusive constitutional pow er to recognize foreign governments and to normalize diplomatic relations. But, again, the language o f both opinions has been read to sanction a broader scope o f federal power. As Professor Henkin has written: [l]t has been suggested that the doctrine o f the Belmont case gives supremacy over state law only to executive agreements intimately related to the President's power o f recognition, and that even such agree­ ments will supersede only state pu b lic policy not formal state laws. Neither of these limitations was expressed— o r im plied— in Belmont, or in the Pink case decided five years later by a reconstituted Supreme Court. W hile Pink makes m uch o f the relation o f the Litvinov Assignment to the recognition o f the Soviet G overnment, the language and the reasoning o f both cases would apply as well to any execu­ tive agreem ent and to any state law. H enkin, Foreign Affairs and the Constitution at 185. See also Department o f State Legal A dviser's Reply to Senate O ffice o f Legislative Counsel Memorandum on Certain M iddle East Agreements (Oct. 6, 1975), reprinted in 1 United States Foreign Relations Law: Documents and Sources 295, 303-04 (Michael J. Glennon & Thomas M. Franck eds., 1980).

158 Waiver o f Claims fo r Damages Arising Out o f Cooperative Space Activity

permitting citizens of those countries to inherit property from Oregon residents was an invalid intrusion into the field of foreign affairs. See also Missouri v. Holland, 252 U.S. 416 (1920) (upholding, against state’s tenth amendment chal­ lenge, federal statute that executed a treaty protecting migratory birds). We are aware of no cases upholding state challenges to federal international agreements on the ground of impermissible interference with state sovereignty.41 There is, however, dicta suggesting hypothetical constitutional limitations on the federal government’s ability to enter into international agreements that override state law. See Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (“ It would not be contended that [the treaty power] extends so far as to authorize what the constitu­ tion forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.” ); Islamic Republic o f Iran v. Pahlavi, 62 N.Y.2d 474, 486 (1984) (“ [I]t is questionable whether the Federal Government could guarantee a New York forum by treaty without violating constitutional principles of federalism and separation of powers.” ), cert, denied, 469 U.S. 1108 (1985). It could perhaps be argued that the states’ right at issue here — the ability to bring claims to recover monies due the state — is a core state prerogative and more like the hypothetical examples of impermissible encroachments on the states than, for instance, the state policy against giving effect to confiscations of assets situated in the state and the inheritance laws at issue in Belmont, Pink, and Zschernig. However, this seems strained as compared to the federal government’s undisputed authority to maintain friendly relations with foreign governments, which, arguably, could be compromised by suits filed by states. We believe the weight of authority supports the President’s power to waive states’ claims against a foreign government.

TERESA WYNN ROSEBOROUGH Deputy Assistant Attorney General Office o f Legal Counsel

4i It is generally accepted that the Tenth Amendment does not apply to impose limits on the subject matter o f international agreements. Missouri v. Holland, 252 U.S. at 434 (federal treaty power is not checked by any “ invisible radiation from the general terms o f the Tenth Amendment” ); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) ( “ To the extent that the United States can validly make treaties, the people and the States have delegated their powerfs] to the National Government and the Tenth Amendment is no barrier.” ); Restatement §302 cmt. d ("[T )h e Tenth A m endm ent. . . does not limit the power to make treaties o r other agreements.” ).