Constitutionality of Statute Governing Appointment of United States Trade Representative ( 1996 )

Constitutionality of Statute Governing Appointment of United
States Trade Representative
19 U.S.C. § 2171(b)(3), which prohibits the appointment as United States Trade Representative o f
any person who has "represented, aided, or advised a foreign entity” in a trade negotiation or
dispute with the United States, is an unconstitutional intrusion on the President’s appointment
power and thus has no legal effect.
Ju ly 1, 1996
M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t
You have asked for our opinion whether 19 U.S.C. § 2171(b)(3) would bar the
appointment o f Ambassador (and Acting United States Trade Representative)
Charlene Barshefsky to be United States Trade Representative. The provision, re­
cently enacted as part of the Lobbying Disclosure Act of 1995, Pub. L. No. 104-
65, §21, 109 Stat. 691, 705, states that anyone “ who has directly represented,
aided, or advised a foreign entity (as defined by section 207(f)(3) of Title 18)
in any trade negotiation, or trade dispute, with the United States may not be ap­
pointed as United States Trade Representative.” We believe that the provision
is an unconstitutional intrusion on the President’s power of appointment, U.S.
Const, art. n , § 2, els. 2 & 3, and thus has no legal effect. *
Section 2171(b)(3) purports to disqualify for appointment as United States Trade
Representative a broad group of the most knowledgeable and experienced practi­
tioners in the field of international trade. When Congress was considering this
restriction, the Department of Justice stated that the provision “ would raise serious
constitutional concerns.” Letter for Hon. Henry Hyde, Chairman, Committee on
the Judiciary, U.S. House of Representatives, from Andrew Fois, Assistant Attor­
ney General, Office of Legislative Affairs at 2 (Nov. 7, 1995). In signing the
bill, President Clinton stated that “ Congress may not, of course, impose broad
restrictions on the President’s constitutional prerogative to nominate persons of
his choosing to the highest executive branch positions, and this is especially so
in the area of foreign relations.” Statement by President William J. Clinton Upon
Signing S. 1060, 2 Pub. Papers of William J. Clinton 1907 (Dec. 19, 1995). He
endorsed, however, the policy behind the provision: “ [B]ecause as a policy matter
I agree with the goal of ensuring the undivided loyalty of our representatives in
trade negotiations, I intend, as a matter of practice, to act in accordance with
this provision.” Id.
Under the Appointments Clause of the Constitution, the President “ shall nomi­
nate, and by and with the Advice and Consent of the Senate, shall appoint Ambas­
sadors, other public Ministers and Consuls, . . . and all other Officers of the
United States,” except for inferior officers whose appointment Congress vests in
* Editor’s Note: A portion o f this opinion addressing a separate issue is not being published.
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the President alone, the heads o f departments, or the courts of law. U.S. Const,
art. II, § 2 , cl. 2. Thus, under the Appointments Clause, “ [t]he President has the
sole responsibility for nominating [principal officers] and the Senate has the sole
responsibility o f consenting to the President’s choice.” Public Citizen v. United
States D e p ’t o f Justice, 491 U.S. 440, 487 (1989) (Kennedy, J., concurring in
the result). W hatever the possible role of Congress in setting reasonable qualifica­
tions for office, see Myers v. U nited States, 272 U.S. 52, 128-29 (1926), a restric­
tion ruling out a large portion o f those persons best qualified by experience and
knowledge to fill a particular office invades the constitutional power of the Presi­
dent and Senate to install the principal officers o f the United States. Any power
in the Congress to set qualifications “ is limited by the necessity of leaving scope
for the judgm ent and will of the person or body in whom the Constitution vests
the power of appointment.” C ivil Service Commission, 13 Op. Att’y Gen. 516,
520-21 (1871). Congress may not dictate qualifications “ unattainable by a suffi­
cient number to afford ample room for choice.” Id. at 525.
Even if “ [t]here is no settled constitutional rule that determines how . . . the
power o f the Congress to prescribe qualifications and the power of the President
to appoint . . . are to be reconciled,” we have opined that “ there must be some
constitutionally prescribed balance” and that this “ balance may shift depending
on the nature of the office in question.” Judges — Appointment— A ge Factor, 3
Op. O.L.C. 388, 389 (1979). Here, the restriction is particularly egregious because
the office in question involves representation of the United States to foreign gov­
ernm ents— an area constitutionally committed to the President. See, e.g., D epart­
m ent o f N avy v. E gan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recog­
nized ‘the generally accepted view that foreign policy was the province and re­
sponsibility of the Executive’ ” ) (quoting Haig v. Agee, 453 U.S. 280, 293-94
(1981)); A lfred D unhill of London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705-
06 n.18 (1976) (“ [T]he conduct of [foreign policy] is committed primarily to the
Executive Branch.” ); United States v. Louisiana, 363 U.S. 1, 35 (1960) (the Presi­
dent is “ the constitutional representative of the United States in its dealings with
foreign nations” ). See also W a rd v. Skinner, 943 F.2d 157, 160 (1st Cir. 1991)
(Breyer, J.) (“ [T]he Constitution makes the Executive Branch . . . primarily re­
sponsible” for the exercise o f “ the foreign affairs power.” ), cert, denied, 503
U.S. 959 (1992); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985)
(Scalia, J.) (“ [B]road leeway” is “ traditionally accorded the Executive in matters
o f foreign affairs.” ).
Furthermore, the position in question is especially close to the President. The
Office o f United States Trade Representative is “ established within the Executive
Office o f the President.” 19 U.S.C. § 2171(a). Congress has also expressed its
sense that the United States Trade Representative “ be the senior representative
on any body that the President may establish for the purpose of providing to the
President advice on overall economic policies in which international trade matters
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Constitutionality o f Statute Governing Appointment o f United States Trade Representative
predominate.” Id. § 2 1 7 1(c)(2)(A). We believe that, where an office thus entails
broad responsibility for advising the President and for making policy, the President
must have expansive authority to choose his aides. See also Promotion o f Marine
Officer, 41 Op. A tt’y Gen. 291, 292 (1956).
We therefore believe that § 2171(b)(3) is unconstitutional and cannot preclude
the President’s appointment of Ms. Barshefsky.
CHRISTOPHER SCHROEDER
Acting Assistant Attorney General
Office o f Legal Counsel
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