Filed: Jul. 25, 2001
Latest Update: Mar. 03, 2020
Summary: At the same time, the Amendment also encroaches on the Presidents, authority to breach or terminate the Peace Treaty (again, without deploying, Congresss power of abrogation) by seeking to cause an outcome in the litigation, over the Treaty that would place the United States in violation of it.
Constitutionality of the Rohrabacher Amendment
The Rohrabacher Amendment, which imposes a funding restriction on the Justice Department’s ability
to litigate matters relating to the Treaty of Peace with Japan, violates established separation of
powers principles and, therefore, is unconstitutional.
July 25, 2001
MEMORANDUM OPINION FOR THE SENIOR ASSOCIATE COUNSEL TO THE
PRESIDENT AND LEGAL ADVISER TO THE NATIONAL SECURITY COUNCIL
You have asked for the Office of Legal Counsel’s views on the constitutional
issues posed by Representative Dana Rohrabacher’s amendment (“Rohrabacher
Amendment”) to H.R. 2500, the Departments of Commerce, Justice, and State, the
Judiciary and Related Agencies Appropriations Act, FY 2002 (commonly referred
to as “CJS Bill”). For the reasons set forth more fully below, we conclude that the
Rohrabacher Amendment violates established separation of powers principles and,
therefore, is unconstitutional.
I. Introduction
The Rohrabacher Amendment passed the House of Representatives on July 18,
2001, by a 395-33 vote, see 147 Cong. Rec. H4195 (daily ed. July 18, 2001), and
is set forth in section 801 of title VIII (“Additional General Provisions”) of the
CJS Bill. The Rohrabacher Amendment reads as follows:
Sec. 801. None of the funds made available in this Act may be used
by the Department of Justice or the Department of State to file a
motion in any court opposing a civil action against any Japanese per-
son or corporation for compensation or reparations in which the
plaintiff alleges that, as an American prisoner of war during World
War II, he or she was used as slave or forced labor.
Id. at H4168.
II. General Constitutional Principles
The Rohrabacher Amendment is a restraint on spending, and thus is an exercise
of Congress’s power of the purse—a legislative authority central to the Constitu-
tion’s scheme of separated powers. 1 Indeed, in a very early debate in the House of
1
The Constitution delegates to Congress the power to raise revenue and to appropriate it for the
activities of the federal government, U.S. Const. art. I, § 8, cl. 1, and it expressly prohibits federal
expenditures except “in Consequence of Appropriations made by Law,” id. art. I, § 9, cl. 7. The
Supreme Court has emphasized the breadth and significance of these core congressional powers. See,
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Representatives, James Madison described Congress’s power of the purse as “the
great bulwark which our Constitution had carefully and jealously established
against Executive usurpations.” 3 Annals of Cong. 938 (Mar. 1, 1793); see also
The Federalist No. 58, at 327 (James Madison) (Clinton Rossiter ed., 1999) (the
power of the purse is “the most complete and effectual weapon with which any
constitution can arm the immediate representatives of the people”). The Executive
Branch has accordingly long recognized that even where the President has the
independent constitutional authority to take some action, the availability of funds
depends on the existence of a relevant appropriations provision. 2 “Congress holds
the purse strings, and it may grant or withhold appropriations as it chooses, and
when making an appropriation may direct the purposes to which the appropriation
shall be devoted and impose conditions in respect to its use.”3
On the other hand, even with due recognition of Congress’s broad spending
powers, the Executive Branch has also insisted that those powers may not be used
to subvert the basic constitutional scheme for allocating federal powers among the
three branches of the government. See Mutual Security Program—Cutoff of Funds
from Office of Inspector General and Comptroller, 41 Op. Att’y Gen. 507, 530
(1960) (“[T]he Constitution does not permit any indirect encroachment by
Congress upon th[e] authority of the President through resort to conditions
attached to appropriations.”). 4 The Executive Branch’s insistence on this principle
is long-standing. In 1860, President Buchanan issued a signing statement denying
Congress’s power to interfere with his authority to issue orders to military officers
through the device of a condition on the availability of appropriated funds. The
e.g., Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978); see also The Floyd Acceptances, 74 U.S.
(7 Wall.) 666, 676-77 (1868) (Executive may not supply army through advances of payments to
military contractors without statutory authorization). Congress’s control over public spending has
centuries-old legal and constitutional roots: “The histories of parliaments are largely the accounts of
how representative assemblies of the people, or some strata of the people, came to terms with kings and
lords and priests by gradually acquiring control over the disposition of their own and the nation’s
wealth.” James Burnham, Congress and the American Tradition 207 (1959).
2
See, e.g., Expense of Presents to Foreign Governments—How Defrayed, 4 Op. Att’y Gen. 358,
359 (1845) (in “the conduct of our foreign relations,” the Executive “cannot exceed the amount . . .
appropriated”).
3
Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 61 (1933).
4
See also Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. at 61
(“Congress may not, by conditions attached to appropriations, provide for a discharge of the functions
of Government in a manner not authorized by the Constitution. If such a practice were permissible,
Congress could subvert the Constitution.”); William H. Taft, The Boundaries Between the Executive,
the Legislative, and the Judicial Branches of the Government, 25 Yale L.J. 599, 612 (1916) (discussing
incident during President Taft’s Administration in which the President instructed his subordinates to
disregard an appropriations limitation as an unconstitutional interference with the President’s
responsibilities); David P. Currie, Rumors of Wars: Presidential and Congressional War Powers,
1809-1829, 67 U. Chi. L. Rev. 1, 22 (2000) (footnote omitted) (the fact that “the appropriation power
was intended as a check on Presidential authority does not prove it can be used to compel the President
to take action he has discretion to decline”).
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Constitutionality of the Rohrabacher Amendment
President therefore construed the statute at issue not to work such an interference.
See Signing Statement of President Buchanan to the House of Representatives
(1860), reprinted in 7 A Compilation of the Messages and Papers of the Presidents
3128 (James D. Richardson ed., 1897). 5 Since that time, the Executive Branch has
consistently denied the binding effect of appropriations conditions that violate the
constitutional separation of powers or that usurp the President’s constitutional
authority. See, e.g., Bill to Relocate United States Embassy from Tel Aviv to
Jerusalem, 19 Op. O.L.C. 123, 125 (1995) (“Jerusalem Opinion”) (bill condition-
ing spending authority on relocation of embassy was unconstitutional where it
would “trammel the President’s constitutional authority” over negotiation and
recognition).
Of particular relevance here, the Executive Branch has found that funding
prohibitions denying it any ability to communicate to the federal courts its views
on legal questions central to its responsibilities may give rise to “serious constitu-
tional problems.” The Effect of an Appropriations Rider on the Authority of the
Justice Department to File a Supreme Court Amicus Brief, 14 Op. O.L.C. 13, 19
(1990). 6 Accordingly, we must examine the Rohrabacher Amendment carefully in
order to determine whether it is an impermissible, albeit indirect, violation of
separation of powers principles.
5
The views expressed in the signing statement were subsequently reviewed and endorsed by an
opinion the President requested from Attorney General Black. The Attorney General wrote that “[i]f
Congress had really intended to [interfere with the President’s command authority], that purpose could
not be accomplished in this indirect manner any more than if it was attempted directly.” Memorial of
Captain Meigs, 9 Op. Att’y Gen. 462, 469 (1860).
6
As Representative Christopher Cox pointed out during the House debate over the Rohrabacher
Amendment, “[d]uring the Reagan Administration, the Department of Justice regularly advised
Congress of its constitutional concerns over the so-called Rudman Amendment, a funding bar annually
added by Congress that purported to bar the President from spending appropriated funds to advocate in
court the view that the antitrust laws did not bar vertical non-price restraints. The Justice Department
believed that the Rudman Amendment represented an attempt to accomplish indirectly through the
appropriations power that [which] Congress could not, consistent with the Constitution, accomplish
directly through legislation—namely, to tell the President how to ‘take Care that the laws (in this case,
the antitrust laws) be faithfully executed.’” 147 Cong. Rec. at H4170 (remarks of Rep. Cox).
Representative Cox added that the Rohrabacher Amendment “appears to raise a still more serious
constitutional question, because in addition to attempting to use the appropriations power indirectly to
control the executive branch’s interpretation of statutes pursuant to the Take Care Clause, it also
attempts indirectly to use the appropriations power to control the President’s exercise of the Foreign
Affairs Power—a power he enjoys directly under the Constitution, and not by grant of delegated
legislative authority.” Id.
The views of the Justice Department relating to antitrust enforcement to which Representative Cox
referred are set forth in, e.g., Memorandum for William F. Baxter, Assistant Attorney General,
Antitrust Division, from Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal Counsel,
Re: Scope of Limitation Imposed by Appropriations Act Provision Relating to Resale Price Mainte-
nance (Dec. 2, 1983). In a signing statement dated November 28, 1983, President Ronald Reagan
expressed “strong reservations about the constitutional implications” of the funding restriction.
Statement on Signing a Fiscal Year 1984 Appropriations Bill, 2 Pub. Papers of Pres. Ronald Reagan
1627, 1627 (Nov. 28, 1983).
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III. The Rohrabacher Amendment
The Rohrabacher Amendment is addressed to particular consolidated cases
brought in United States courts by former members of the United States Armed
Services against Japanese nationals and corporations, based on claims that the
plaintiffs were used for slave labor or forced labor during the Second World War
while they were prisoners of war of Japan. The claims arise despite the fact that
the Treaty of Peace with Japan appears to bar them. See Treaty of Peace with
Japan art. 14, Sept. 8, 1951, 3 U.S.T. 3169, 3180-83 (the “Peace Treaty” or
“Treaty”). Article 14(a) of the Peace Treaty establishes the terms of Japan’s
reparations to the Allied Powers “for the damage and suffering caused by it during
the war.” After prescribing how such reparations are to be paid, Article 14(b) of
the Peace Treaty provides as follows (emphases added):
Except as otherwise provided in the present Treaty, the Allied
Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the prosecu-
tion of the war, and claims of the Allied Powers for direct military
costs of occupation.
In a recent decision rejecting the claims to compensation by Americans who
were prisoners of war of Japan, a federal district court held:
The treaty by its terms adopts a comprehensive and exclusive set-
tlement plan for war-related economic injuries which, in its whole-
sale waiver of prospective claims, is not unique. . . . The waiver pro-
vision of Article 14(b) is plainly broad enough to encompass the
plaintiffs’ claims in the present litigation.
In re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939,
945 (N.D. Cal. 2000).
Pursuant to the Executive Branch’s constitutional responsibilities to interpret
and uphold treaties, to conduct foreign relations, and to execute the law, the
federal government filed “Statements of Interest” at various times in this litigation.
See, e.g., Statement of Interest of United States of America (Aug. 17, 2000), In re
World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D.
Cal. 2000) (No. MDL-1347), available at http://www.state.gov/s/l/c8185.htm (last
visited May 23, 2012). The government took the position that
[t]he United States must honor its international agreements, includ-
ing the Peace Treaty with Japan. There is, in our view, no basis for
the U.S. or Allied citizens to reopen the question of international
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Constitutionality of the Rohrabacher Amendment
commitments and obligations under the 1951 Treaty. It is the United
States’ position that the claims of the United States, its nationals and
Allied nationals against Japan and its nationals arising out of their
conduct during the war were finally settled by the Treaty of Peace
with Japan in 1951.
Id. at 2-3.
The intent of the Rohrabacher Amendment is apparently to prevent the Execu-
tive Branch from expressing to the courts its view of the Peace Treaty in the
consolidated cases captioned In re World War II Era Japanese Forced Labor
Litigation. Thus, Representative Rohrabacher stated, “I would hope that we can
put this type of restriction into this bill that would prevent the State Department
from using any funds that we authorize and appropriate today in order to prevent
our POWs from suing the Japanese corporations that used them as slave labor in
the Second World War.” 147 Cong. Rec. at H4169.
IV. Analysis
In our opinion, there are at least two interlinked kinds of separation of powers
problems in the Rohrabacher Amendment—the first kind relating to its effect on
the Judiciary, the second kind to its effect on the Executive.
First, the Rohrabacher Amendment impermissibly impairs the ability of the
federal courts to perform the judicial functions of interpreting the Peace Treaty
and of adjudicating claims that appear to be barred by the waiver in Article 14(b)
of that Treaty. It does this by attempting to prevent the Executive Branch from
articulating to the courts its understanding of a treaty—an understanding on which
the courts traditionally rely, and to which they characteristically give great
deference. As we shall show, the courts’ reliance on, and deference to, Executive
Branch treaty interpretations is constitutionally grounded, and reflects the
constitutionally assigned roles of the two branches with respect to foreign affairs.
By preventing the courts from hearing the Executive’s interpretation of the Peace
Treaty, therefore, the Rohrabacher Amendment would force the courts to decide a
case that implicates sensitive questions of our relationship with a major ally and
treaty partner without having the benefit of the Executive’s guidance and special
expertise. The outcome at once impedes the courts from performing their constitu-
tional role of adjudicating cases or controversies, and accords the courts a role in
foreign policy decisionmaking that they do not properly have.
Second, the Rohrabacher Amendment impermissibly impairs the Executive
Branch’s ability to carry out the core constitutional responsibilities relating to
treaties, while also seeking to direct and control the Executive in the performance
of its exclusive functions. In particular, it prevents the Executive from articulating
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and defending its interpretation of the Peace Treaty, while also attempting to
induce the Executive and the courts to accept Congress’s preferred interpretation.
Underlying both types of separation of powers problems is the basic constitu-
tional principle of presidential primacy in the conduct of foreign affairs—a
principle that the Supreme Court has repeatedly recognized. See, e.g., United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); accord Dep’t of
Navy v. Egan, 484 U.S. 518, 529 (1988); Alfred Dunhill of London, Inc. v.
Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976); United States v. Louisiana,
363 U.S. 1, 35 (1960). The President’s constitutional primacy in this area follows
from specific textual grants of authority in Article II, including those that make
him “Chief Executive, U.S. Const. Art. II, § 1, cl. 1, and . . . Commander in Chief,
id., art. II, § 2, cl.1.” Nixon v. Fitzgerald,
457 U.S. 731, 749-50 (1982). It follows
as well from the “unique position” that the President occupies in the constitutional
structure. Id. at 749.
Of greatest relevance here, the President’s foreign relations power includes a
broad range of authority with respect to treaties. These include, inter alia,
responsibility for treaty interpretation and enforcement, and the authority to place
the United States in breach of a treaty or even to terminate it, should the President
find that advisable. 7 Moreover, the President’s authority with respect to treaties
intersects with his responsibility to “take Care that the Laws be faithfully execut-
ed.” U.S. Const. art. II, § 3. In consequence, the President’s responsibility to take
care that the laws be faithfully executed “is, if possible, more imperative” with
respect to the execution of treaties than statutes, “since the execution of treaties
being connected with public and foreign relations, is devolved upon the executive
branch” in a unique manner. United States v. The Amistad, 40 U.S. (15 Pet.) 518,
571-72 (1841). 8 It is this special presidential responsibility with respect to treaties
that constitutes the basic premise of the analysis that follows.
7
See John Yoo, Politics as Law? The Anti-Ballistic Missile Treaty, The Separation of Powers, and
Treaty Interpretation, 89 Cal. L. Rev. 851, 873-74 (2001) (“Yoo”).
8
See also Goldwater v. Carter, 444 U.S. 996, 1000 n.1 (1979) (Powell, J., concurring in judgment)
(President has “duty to execute [treaty] provisions”); Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C.
Cir. 1983) (President has “primary responsibility” for the “[i]nterpretation, clarification and implemen-
tation” of international agreements); Constitutionality of Proposed Conditions to Senate Consent to the
Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986) (“It is
indisputable that treaties are among the laws to be executed by the President.”); International Load
Line Convention, 40 Op. Att’y Gen. 119, 123 (1941) (“Attention to the observance of treaties is an
executive responsibility”); Restatement (Third) of the Foreign Relations Law of the United States
§ 112, cmt. c (1990).
Despite the fact that Article II does not enumerate a presidential power to interpret treaties, this
function has been recognized from the beginning as belonging to the President. When the question
arose concerning the proper interpretation of the 1778 Treaty of Alliance with France, President
Washington issued the 1793 Neutrality Proclamation construing the Treaty not to require United States
entry into the European wars on France’s side. Alexander Hamilton defended President Washington’s
authority to interpret the Franco-American Treaty by arguing that this power stemmed from his control
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Constitutionality of the Rohrabacher Amendment
A.
As the Supreme Court has repeatedly acknowledged, the Executive Branch’s
interpretations of treaties must be accorded substantial judicial deference. See, e.g.,
El Al Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (“‘Although not
conclusive, the meaning attributed to treaty provisions by the Government
agencies charged with their negotiation and enforcement is entitled to great
weight.’”) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,
184-85 (1982)). 9 Such judicial deference is a reflection of the general constitution-
al principle discussed above—that the primary responsibility for upholding and
enforcing treaties, and more generally for conducting foreign policy, lies with the
President. See United States v. Li, 206 F.3d 56, 67 (1st Cir. 2000) (Selya, J.,
concurring) (deference to Executive’s treaty interpretation is owed in part because
“when foreign affairs are involved, the national interest has to be expressed
through a single authoritative voice”). Reliance on the Executive Branch’s
interpretation of a treaty serves at least four constitutionally significant purposes:
(1) it helps the courts to avoid becoming the unwitting causes of friction between
the United States and its treaty partners (or other nations); (2) it averts the
embarrassments to the United States that would ensue if different branches of our
government spoke with contradictory voices on crucial questions of treaty
interpretation;10 (3) it helps to ensure consistency and uniformity of interpretations
within the Judicial Branch itself; and (4) it provides the courts with the Execu-
tive’s expertise on legal or diplomatic views or practices with which courts may
well be unfamiliar.11 All four of these considerations supporting judicial reliance
on the Executive in treaty cases derive ultimately from the Constitution’s alloca-
tion of responsibilities within the federal government and the specific institutional
competences that the Framers designed each branch to develop.12
The Rohrabacher Amendment would, however, effectively silence the Execu-
tive Branch if it attempted to articulate its interpretation of the Peace Treaty in
over the treaty process and the general vesting of the executive power in Article II, Section 1. See
Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 32
(Harold C. Syrett et al. eds., 1969); see also Yoo, 89 Cal. L. Rev. at 895-901.
9
See also Kolovrat v. Oregon, 366 U.S. 187, 194 (1961); Factor v. Laubenheimer,
290 U.S. 276,
295 (1933); Charlton v. Kelly, 229 U.S. 447, 468 (1913); Mendaro v. World Bank,
717 F.2d 610, 620
(D.C. Cir. 1983).
10
Cf. Baker v. Carr, 369 U.S. 186, 217 (1962).
11
Thus, the courts recognize that although they “are well equipped to resolve questions of domestic
law,” they “venture into unfamiliar territory” when interpreting treaties negotiated with foreign
governments. More v. Intelcom Support Servs., Inc., 960 F.2d 466, 472 (5th Cir. 1992).
12
Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (the Act of State doctrine
has “‘constitutional’ underpinnings” because it “arises out of the basic relationships between branches
of government in a system of separation of powers” and “concerns the competency of dissimilar
institutions to make and implement particular kinds of decisions in the area of international relations”).
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cases in which the courts were adjudicating claims that the Treaty appears to bar.
Apart from its effects on the Executive’s constitutional functions (which we
discuss in Part IV.B below), the provision would impair the Judiciary’s ability to
fulfill its “primary mission” of interpreting the law in the cases or controversies
before it. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001). In Velazquez,
a First Amendment case involving a funding restriction on the activities of the
Legal Services Corporation (“LSC”), the Court stressed that the bar on the LSC’s
ability to present certain types of claims and arguments operated to impair the
courts’ ability to adjudicate cases as “[a]n informed, independent judiciary.” Id.
The Court stated that, under the challenged restriction, “cases would be presented
by LSC attorneys who could not advise the courts of serious questions of statutory
validity . . . . By seeking to prohibit the analysis of certain legal issues and to
truncate presentation to the courts, the enactment under review prohibits speech
and expression upon which courts must depend for the proper exercise of the
judicial power.” Id.
In view of the traditional reliance of the courts on the Executive Branch’s
interpretation of treaties—a reliance that, as we have shown, is dictated by the
Constitution’s allocation of responsibilities to the two branches—we think that the
Rohrabacher Amendment, like the funding restriction invalidated in Velazquez,
impermissibly impairs “the proper exercise of the judicial power.”
Paradoxically, the Rohrabacher Amendment not only weakens the Judiciary’s
ability to perform its primary constitutional function, but also augments the
Judiciary’s power in a manner that is incompatible with the Constitution’s
distribution of governmental powers. As a general proposition, it is fair to say that
the courts will frequently decline to decide questions involving foreign relations,
or will defer to the Executive Branch when they do decide them, in order to avoid
embarrassing the Executive Branch in the conduct of foreign policy.13 That is to
say, the courts themselves are aware that the over-judicialization of foreign policy
disputes may cause the United States to speak to foreign nations with contradicto-
ry voices, and so undermine the Executive Branch’s ability to conduct foreign
relations. Under the Rohrabacher Amendment, however, the courts would be
deciding a question of the utmost importance to the relations between the United
States and Japan, despite the fact that the Executive Branch would be barred from
informing them of its views of the Treaty of Peace with Japan or of the conse-
quences of our breaching it. To invite the courts to play such a role, without the
benefit of hearing the Executive Branch’s view, is to disrupt the “proper distribu-
13
See, e.g., Baker v. Carr, 369 U.S. at 211-14; see also American Foreign Service Ass’n v.
Garfinkel, 490 U.S. 153, 161 (1989) (per curiam) (instructing lower courts “not [to] pronounce upon
the relative constitutional authority of Congress and the Executive branch [in a case involving national
security] unless [they] find[] it imperative to do so”); Goldwater v. Carter, 444 U.S. at 1003
(Rehnquist, J., concurring in judgment) (question whether unilateral treaty termination power belonged
to President was non-justiciable in part because “it involves foreign relations”).
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Constitutionality of the Rohrabacher Amendment
tion of functions between the judicial and political branches of the Government on
matters bearing upon foreign affairs.” Sabbatino, 376 U.S. at 427-28.
B.
As well as impairing the courts’ ability to exercise judicial power, the
Rohrabacher Amendment also impermissibly impairs the Executive Branch’s
performance of core constitutional functions with respect to treaties, while at the
same time seeking to aggrandize Congress’s authority over the same area. Either
type of interference—preventing a coordinate branch from performing a function
that the Constitution assigns to it, or seeking to direct and control another branch
in the performance of such a function—is a violation of separation of powers
doctrine.14
The Rohrabacher Amendment would prohibit the Executive Branch from
informing the courts of its interpretation of the Peace Treaty, but only if the
Executive “oppos[es]” the plaintiffs in the covered civil actions. In effect,
therefore, Congress would be requiring the Executive Branch either to present no
interpretation of the Treaty to the courts, or else to advocate the plaintiffs’—i.e.,
Congress’s—interpretation of it. Forcing the Executive to choose between these
alternatives is a violation of separation of powers principles. Insofar as Congress is
silencing the Executive Branch, it is impairing the Executive’s ability to perform a
central constitutional function. And insofar as Congress is seeking to direct the
Executive Branch to advocate Congress’s interpretation of the treaty, it is usurping
a constitutional power that does not belong to it.15 True, Congress may abrogate
treaties,16 but it has no constitutional power whatever to insist, through legislation,
14
Interferences by one branch with another branch’s functioning in violation of separation of
powers can take one of two basic forms. First, “it remains a basic principle of our constitutional scheme
that one branch of the Government may not intrude upon the central prerogatives of another.” Loving v.
United States, 517 U.S. 748, 757 (1996). Thus, where the Legislative or Executive Branch attempts to
usurp power constitutionally committed to the other, the attempt is invalid. Second, “[e]ven when a
branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not
impair another in the performance of its constitutional duties.” Id.
15
The fact that the Rohrabacher Amendment is an exercise of the spending power does not shelter it
from these separation of powers objections: It has long been recognized that Congress may not invade
the President’s foreign affairs powers by conditioning funding on the President’s exercising his
discretionary constitutional powers in a particular manner. Representative Daniel Webster, for
example, voiced such arguments in 1826, when opponents of the Panama Congress sought to attach
such conditions to the appropriation for the United States mission. See Edward S. Corwin, The
President: Offices and Powers 387-88 n.49 (1940).
16
“It has been adjudged that Congress by legislation, and so far as the people and authorities of the
United States are concerned, could abrogate a treaty made between this country and another country.”
La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899); see also United States v. Stuart,
489 U.S. 353, 375 (1989) (Scalia, J., concurring in part and in the judgment) (“[I]f Congress does not
like the interpretation [of] a treaty [that] has been given by the courts or by the President, it may
abrogate or amend it as a matter of internal law by simply enacting inconsistent legislation.”).
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that the other branches advocate or adopt Congress’s preferred construction of
them.1 7 The function of interpreting treaties belongs only to the Executive (as well,
of course, to the courts when cognizable cases or controversies arise). Cf. Bowsher
v. Synar, 478 U.S. 714, 733-34 (1986). Thus, whether viewed as an impairment of
the Executive’s ability to perform its constitutional function of treaty interpreta-
tion, or as a usurpation by the Legislative Branch of the interpretative authority
belonging solely to the other branches, the Rohrabacher Amendment appears to
violate separation of powers principles.18
Further, the President’s treaty powers also include the authority to enforce a
treaty or, should he deem it advisable, to breach or to terminate it.19 The
Rohrabacher Amendment, however, while not abrogating the Peace Treaty,
prevents the Executive Branch from upholding the Treaty by defending it in the
courts. At the same time, the Amendment also encroaches on the President’s
authority to breach or terminate the Peace Treaty (again, without deploying
Congress’s power of abrogation) by seeking to cause an outcome in the litigation
over the Treaty that would place the United States in violation of it. For these
reasons as well, the Rohrabacher Amendment impermissibly impairs the Execu-
tive’s constitutional power, while aggrandizing that of Congress.
In sum, then, we conclude that the Rohrabacher Amendment violates estab-
lished separation of powers principles and is unconstitutional.
SHELDON BRADSHAW
Deputy Assistant Attorney General
Office of Legal Counsel
ROBERT J. DELAHUNTY
Special Counsel
Office of Legal Counsel
17
It is clear that the Rohrabacher Amendment does not abrogate the Peace Treaty. It seems to
presuppose that the courts may consider Treaty-based defenses to the claims of former prisoners of war
(and thus that the Treaty remains in effect). But it denies to the Executive Branch the ability to present
its views of the Treaty, should they conflict with the views of the plaintiffs.
18
The constitutional problem we see here is thus similar to the problem we discerned in the Jerusa-
lem Opinion. There, a conditional funding constraint would in effect have forced the President to
choose between having no appropriations for embassies or situating the United States embassy to Israel
in a place (Jerusalem) which Congress rather than the President had designated. To the extent that the
provision would have precluded the Executive from maintaining embassies abroad, it constituted an
impermissible impairment of the Executive’s constitutional power; to the extent that it would have
directed the choice of Jerusalem rather than Tel Aviv as the site of the embassy in Israel, it usurped the
Executive’s sole recognition power, and hence was an impermissible legislative aggrandizement.
19
See Yoo, 89 Cal. L. Rev. at 873-74; John C. Yoo, Kosovo, War Powers, and the Multilateral
Future, 148 U. Pa. L. Rev. 1673, 1725-29 (2000); cf. The Paquete Habana, 175 U.S. 677, 700 (1900).
170
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