Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991
I have signed today H.R. 3792, the "Foreign Relations Authorization Act, Fiscal Years 1990 and 1991." This Act authorizes funding for the Department of State at a level sufficient to cover appropriations for this fiscal year. The levels authorized for Contributions to International Organizations and Contributions for International Peacekeeping Activities are those requested by the Administration. These authorizations provide for full funding of our assessed obligations in the international area.
This Act, which provides the Department's basic operational authorities, includes welcome new authorities for the Department, many of them included at the Administration's request. I am pleased that this Act does not contain a provision that compelled me to veto an earlier version of this legislation (Section 109 of H.R. 1487). Additionally, H.R. 3792 also waives a number of restrictive earmarks that would otherwise apply. I regret, however, that the Congress has included several provisions in the Act that raise constitutional difficulties.
The Constitution vests in the President the executive power of the United States. The executive power includes, among other things, the authority to receive and appoint ambassadors and to conduct negotiations on behalf of the United States with foreign governments. Thus, pursuant to the Constitution, the President is entrusted with control over the conduct of diplomacy. The content, timing, and duration of negotiations with foreign governments are also within the President's control. Unfortunately, many provisions of this Act could be read to violate these fundamental constitutional principles by using legislation to direct, in various ways, the conduct of negotiations with foreign nations.
Section 102 of the Act would prohibit the use of certain appropriated funds for any U.S. delegation to any meeting within the framework of the Conference on Security and Cooperation in Europe unless individuals representing the Commission on Security and Cooperation in Europe, a body controlled by the legislative branch, are included in the U.S. delegation. By purporting to deny certain funds for the negotiation of certain arms control agreements unless representatives of the Commission are included in the U.S. delegation to such negotiations, this section impermissibly intrudes upon my constitutional authority to conduct our foreign relations and to appoint our Nation's envoys. I therefore shall construe it to express the sense of the Congress but not to impose any binding legal obligation, and as severable from the ability to continue the critically important negotiations at issue.
Section 108 would restrict the expenditure of appropriated funds for carrying on "the current dialogue on the Middle East peace process with any representative of the Palestine Liberation Organization if the President knows and advises the Congress that that representative directly participated in the planning or execution of a particular terrorist activity which resulted in the death or kidnapping of a United States citizen." I have frequently emphasized my determination to work to eliminate the scourge of terrorism, and I have no intention of negotiating with terrorists. This provision demonstrates that the Congress shares my concern. However, if this section were interpreted to prohibit negotiations with particular individuals under certain circumstances, it would impermissibly limit my constitutional authority to negotiate with foreign organizations. Accordingly, I shall construe this section to preserve my constitutional discretion for the conduct of foreign negotiations.
Section 407 of the Act is similarly subject to inappropriate interpretation. This section purports to require that no individual may be admitted to the United States as a representative to the United Nations if the individual "has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests." In effect, this provision could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations. While espionage directed against the United States and its allies is a problem of the utmost gravity, curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution. I therefore shall construe section 407 to be advisory.
Section 134 is consistent with the Administration's planned course of action and improves on prior law. Nevertheless, it infringes upon my constitutional authority to conduct foreign relations and receive representatives of foreign governments by purporting to permit the Soviet Union to occupy a consulate facility in the United States only upon certification that the U.S. mission in Kiev is able to occupy an interim facility. I also shall treat this section as advisory.
A number of other provisions might be construed to require the executive branch to contact foreign governments and espouse certain substantive positions regarding specific issues. See e.g., Sections 115, 210, 902(a)(7). My constitutional authority over foreign affairs necessarily entails discretion over the timing and subject matter of such contacts. Accordingly, I shall construe all these provisions to be merely precatory as well.
Similarly, several sections, in particular section 804, impose significant reporting requirements on the Secretary of State to inform the Congress of specified diplomatic contacts. Such blanket reporting requirements could be read to compel the disclosure of the contents of sensitive ongoing negotiations and may, therefore, compromise my constitutional authority over such negotiations. I am also concerned that such provisions tend to undermine the spirit of cooperation and trust between the executive and legislative branches that I have been laboring to foster. In reporting to the Congress, therefore, I shall construe these provisions in light of my constitutional duties.
Section 206 of the Act would establish a United States Advisory Commission on Public Diplomacy. Several of its provisions would impermissibly interfere with the President's control over the deliberative processes of the executive branch. Section 206 clearly contemplates that the Commission shall report to the Congress about deliberations within the executive branch and, indeed, shall monitor the executive branch in its execution of the laws. I shall interpret these provisions consistent with my authority as head of the unitary executive branch to "take care that the Laws be faithfully executed," U.S. Constitution, Article II, Section 3, to coordinate and supervise my subordinates, and to have the executive branch speak with one voice to the Congress.
Certain provisions of the Act could be construed to require impermissible racial preferences. In order to avoid legal challenge, these provisions will also be construed in accordance with the Constitution.
On a different matter, it is my understanding that section 128, removing the sunset provision on section 901 of the 1988 - 89 Authorization Act, which prohibits the exclusion of aliens on certain grounds, has no effect on the substance of section 901 or on the way the executive branch has applied it since its enactment.
Finally, with regard to Title IX, I want to reiterate that legislatively mandated sanctions represent an unwise constraint upon the President's ability to conduct foreign policy. I note, however, that the section provides flexibility, by permitting a Presidential waiver to lift suspensions, in whole or in part, when it is in the national interest of the United States.
The White House,
February 16, 1990.
Note: H.R. 3792, approved February 16, was assigned Public Law No. 101 - 246.
George Bush, Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/264187