Use of “Unanticipated Needs” Funds to Pay the Security-
Related Hotel Expenses of a Supreme Court Nominee
Payment of expenses related to Judge Sotomayor’s hotel stays in Washington, D.C.
during the period between her nomination to the Supreme Court and the conclusion of
her confirmation hearings falls within the President’s discretion under 3 U.S.C. § 108.
January 15, 2010
MEMORANDUM OPINION FOR THE
PRINCIPAL DEPUTY COUNSEL TO THE PRESIDENT
This memorandum memorializes advice we previously provided re-
garding whether the White House could pay certain expenses related to
the Supreme Court nomination of then-Judge Sonia Sotomayor out of
funds appropriated “to enable the President, in his discretion, to meet
unanticipated needs for the furtherance of the national interest.” 3 U.S.C.
§ 108(a) (2006). These expenses related to the Judge’s hotel stays in
Washington, D.C. during the period between her nomination and the
conclusion of her confirmation hearings. We understand that, during this
period, the Judge met with White House personnel whose official duties
included assisting with her confirmation. We further understand that the
specific amount of the expenses was driven in part by the need for Judge
Sotomayor to stay at a hotel at which her security could be ensured. As
we understand it, the United States Marshals Service (“USMS”), based on
information obtained shortly after Judge Sotomayor’s nomination, deter-
mined that Judge Sotomayor required the protection of a security detail,
and specifically requested that she stay at a hotel with appropriately
configured entrances. On the facts presented to us, we think that payment
of these expenses falls within the President’s discretion under 3 U.S.C.
§ 108.
On its face, section 108 confers broad authority on the President to use
designated funds, “in his discretion, to meet unanticipated needs for the
furtherance of the national interest.” Id. Section 108 expressly provides
that the President may exercise this discretionary authority “without
regard to any provision of law . . . regulating expenditures of Government
funds.” Id. And, consistent with section 108, the appropriations bill for
the fiscal year during which the expenses at issue here were incurred
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Use of “Unanticipated Needs” Funds to Pay Security-Related Hotel Expenses
appropriated one million dollars “[f]or expenses necessary to enable the
President to meet unanticipated needs, in furtherance of the national
interest, security, or defense which may arise at home or abroad during
the current fiscal year, as authorized by 3 U.S.C. 108, . . . to remain
available until September 30, 2010.” Omnibus Appropriations Act, 2009,
Pub. L. No. 111-8, 123 Stat. 524, 643 (2009). The only requirements
imposed by this language are that the need for which funds are spent be
“unanticipated,” and that the spending of those funds further the “national
interest, security, or defense.”
In the years before section 108’s enactment in 1978, individual appro-
priations acts sometimes provided funds to permit the President to re-
spond to unanticipated needs. In earlier years, these funds were appropri-
ated to meet needs arising from “emergencies.” In the years closer to
1978, however, Congress made broader appropriations for needs that were
simply “unanticipated.” 1 When section 108 was enacted in November of
1 In particular, the appropriations acts for fiscal years 1972, 1973, and 1974 included
an appropriation of one million dollars for an “Emergency Fund for the President” for
“expenses necessary to enable the President . . . to provide in his discretion for emergen-
cies affecting the national interest, security, or defense which may arise at home or abroad
during the current fiscal year.” Treasury, Postal Service, and General Government Appro-
priation Act, 1972, Pub. L. No. 92-49, tit. III, 85 Stat. 108, 111 (1971); see also Treasury,
Postal Service, and General Government Appropriation Act, 1973, Pub. L. No. 92-351,
tit. III, 86 Stat. 471, 475 (1972); Treasury, Postal Service, and General Government
Appropriation Act, 1974, Pub. L. No. 93-143, tit. III, 87 Stat. 510, 514 (1973). The
appropriation for fiscal year 1975, similarly, included an appropriation of $500,000 for
“Unanticipated Personnel Needs” for “expenses necessary to enable the President to meet
unanticipated personnel needs, for emergencies affecting the national interest, security, or
defense which may arise at home or abroad during the current fiscal year.” Treasury,
Postal Service, and General Government Appropriation Act, 1975, Pub. L. No. 93-381,
tit. III, 88 Stat. 613, 617 (1974).
The appropriations acts for fiscal years 1976 through 1979, in contrast, omitted men-
tion of “emergencies,” and included an appropriation for “Unanticipated Needs” for
“expenses necessary to enable the President to meet unanticipated needs, in furtherance of
the national interest, security, or defense which may arise at home or abroad during the
current fiscal year.” Treasury, Postal Service, and General Government Appropriation
Act, 1976, Pub. L. No. 94-91, tit. III, 89 Stat. 441, 445 (1975); see also Treasury, Postal
Service, and General Government Appropriation Act, 1977, Pub. L. No. 94-363, tit. III,
90 Stat. 963, 968 (1976); Treasury, Postal Service, and General Government Appropria-
tion Act, 1978, Pub. L. No. 95-81, tit. III, 91 Stat. 341, 346 (1977); Treasury, Postal
Service, and General Government Appropriations Act, 1979, Pub. L. No. 95-429, tit. III,
92 Stat. 1001, 1006 (1978). The House report accompanying one of these acts indicated
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34 Op. O.L.C. 20 (2010)
1978, it borrowed this broader language from the appropriations acts that
immediately preceded it, and provided funds for unanticipated needs
generally, without any restriction to “emergencies.” The House and Sen-
ate reports accompanying section 108 noted that it “continues the authori-
ty provided by recent appropriations acts for a fund to enable the Presi-
dent, in his discretion, to meet unanticipated needs ‘for furtherance of
the national interest, security, or defense,’” without mentioning any
restriction to emergencies. H.R. Rep. No. 95-979, at 10 (1978); S. Rep.
No. 95-868, at 11 (1978). And the practice under section 108 in the dec-
ades since its enactment confirms that its scope is not restricted to emer-
gencies. Previous administrations, moreover, have likewise declined to
construe the term “national interest” as a narrow category restricted to
matters closely connected with national security or defense, and instead
interpreted it as an independent, broad category that gives the President
the flexibility needed to exercise his official functions when faced with
new problems that arise after the appropriations process for a given year
has been completed.
Thus, according to a summary of Executive Office records provided by
your office, section 108 appropriations, for example, have been used to
fund advisory commissions in the Executive Branch, such as the Native
Hawaiians Study Commission and the Council on Wage and Price Stabil-
ity, that were charged with missions apparently unrelated to national
security or defense. See Executive Office of the President, Unanticipated
Needs History at 1 (FY 1972–present) (“Unanticipated Needs History”);
see also Budget of the United States Government, Fiscal Year 1984, app.
at I-D3; Budget of the United States Government, Fiscal Year 1982
(“Budget FY 1982”), app. at I-D4. Other uses of section 108 funds have
included unspecified expenditures for the White House Office, the Iran-
contra hearings, the U.S. Secret Service, Geneva Mission security for the
Office of the U.S. Trade Representative, presidential foundation expenses
for the funerals of Presidents Reagan and Ford, White House Office
that the purpose of the appropriation was to provide “a resource that the President can
effectively use to solve problems that occur after the appropriation process has been
completed.” H.R. Rep. No. 95-378, at 25 (1977). The report went on to observe that “[t]he
appropriation of funds is a time consuming process and the President ought to have some
degree of flexibility to handle unforeseen emergencies,”
id., although—as noted—the
terms of the act were broad and not limited to “emergencies.”
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Use of “Unanticipated Needs” Funds to Pay Security-Related Hotel Expenses
expenses for President Ford’s funeral, and an Office of Administration
e-mail restoration initiative. See Unanticipated Needs History at 1–3; see
also Budget FY 1982, app. at I-D4; Budget of the United States Govern-
ment, Fiscal Year 1989, app. at I-D1; Letter for Susan M. Collins, Chair-
woman, Senate Committee on Homeland Security, from John Straub,
Special Assistant to the President, encl. (Mar. 20, 2006) (Unanticipated
Needs Account); Letter for Harry Reid, Senate Majority Leader, from
Alan R. Swendiman, Special Assistant to the President, encl. (Nov. 23,
2007) (Unanticipated Needs Account); Letter for Harry Reid, Senate
Majority Leader, from Sandra K. Evans, Special Assistant to the Presi-
dent, encl. (Nov. 4, 2008) (Unanticipated Needs Account). These expendi-
tures have been reported to Congress on a yearly basis and Congress, far
from viewing them as inappropriate, has continued to appropriate funds
for unanticipated needs virtually every year. 2 Finally, and even more
directly, this Office has previously suggested that the President’s discre-
tion under section 108 may include the authority to pay travel expenses
incurred by persons who are not employees of the government but who
are traveling for purposes related to the duties of the President. See Mem-
orandum for Michael E. Shaheen, Jr., Counsel, Office of Professional
Responsibility, from Robert B. Shanks, Deputy Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: Use of Department of Justice Vehicles
at 13 n.12 (Jan. 23, 1984) (explaining that, “[u]nlike the Attorney Gen-
eral, the President has several possible sources of appropriated funds from
which a nonemployee traveling for official purposes of the Presidency
might be paid expenses,” and citing section 108).
In light of section 108’s broad language and this prior practice and
precedent, we believe use of “unanticipated needs” funds to pay for the
expenses at issue here would be permissible. The timing of Justice David
Souter’s resignation announcement may fairly be described as “unantici-
pated,” giving rise to the associated costs of ensuring that the nominee
who had been named to replace him would be readily available to the
White House personnel who are officially responsible for assisting with
2Based on the information you provided, the only year in which Congress did not
appropriate section 108 funds was in fiscal year 1997, when the one million dollars
requested for unanticipated needs were diverted to fund conferences on model state drug
laws through the Office of National Drug Control Policy. See Unanticipated Needs
History at 3 n.1.
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34 Op. O.L.C. 20 (2010)
the confirmation process. Moreover, the particular expenses at issue here
may also be characterized as “unanticipated,” given that the USMS unex-
pectedly received information about the President’s nominee that caused
it to determine that she required the protection of a security detail, and to
request that she stay at a hotel with appropriate security features. And we
think it is in furtherance of the national interest to protect the security of
a Supreme Court nominee prior to confirmation and swearing in, as well
as to ensure that the President’s advisors may effectively and efficiently
assist him in carrying out his constitutional authority to appoint a nominee
to the Supreme Court to fill a vacancy in that body. (We also understand
that the cost of housing Judge Sotomayor in Washington during the con-
firmation process was significantly less than the expected cost of moving
the White House preparation team to New York to meet with Judge So-
tomayor there.) We therefore conclude that Judge Sotomayor’s expenses
may properly be paid with funds appropriated under section 108.
JEANNIE S. RHEE
Deputy Assistant Attorney General
Office of Legal Counsel
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