Memorandum

April 5, 2004

Subject:	Analysis of Department of Justice Letter Regarding the Constitutionality of Mandatory Notice and Comment Provisions Proposed in Implementing Legislation for the Stockholm Convention on Persistent Organic Pollutants (POPs)
Prepared by:	Glenn Wiser, Senior Attorney, CIEL

This memorandum critiques arguments contained in a letter dated March 25, 2004 from William Moschella, Assistant Attorney General, Department of Justice to Senator Tom Harkin (hereinafter the DOJ letter). The DOJ letter responds to a February 12, 2004 request from Senator Harkin to EPA Administrator Leavitt, which asked the Administrator to explain the Bush Administration's position that mandatory notice and comment provisions proposed in U.S. implementing legislation for the Stockholm Convention on Persistent Organic Pollutants would unconstitutionally infringe upon the President's treaty making powers.


1. Background

The notice and comment provisions in question may be found in the POPs, LRTAP POPs, and PIC Implementation Act of 2003, S. 1486, 108th Cong. (2003), which the Senate Environment and Public Works Committee approved in July 2003.1 They pertain to the process in the Stockholm Convention under which parties may collectively decide to add other POPs chemicals to the treaty. See Stockholm Convention, art. 8. The notice and comment requirements would be triggered by three different stages of this international adding mechanism. When each of the stages occurred, EPA would be required by statute to publish a Federal Register notice providing general information about the international process and a synopsis of the implications the process could ultimately have for domestic regulation. The notice would invite the public to provide information relevant to subsequent stages of the international process. It would also instruct industry to submit information about production, use, export, etc. of the nominated chemical. EPA would then be required to prepare a report summarizing the information it had received. Finally, all of the EPA reports and information received would be part of the rulemaking record if (1) the international community adopted a new-listing amendment, (2) the United States supported the amendment, and (3) EPA initiated a rulemaking to regulate the chemical.

These notice and comment provisions were the product of extensive discussions between industry representatives, environmental and health NGOs, and majority and minority EPW staff. The intent behind the provisions was that (1) they would allow a domestic rulemaking to run roughly parallel in time to the international listing procedure, to avoid the delay that would result if the initial steps of a rulemaking were allowed to commence only after the full, multi-year international process had concluded; (2) they would give interested stakeholders a timely opportunity to learn of the various stages of the international listing procedure; (3) they would allow those stakeholders to provide relevant information to EPA, which EPA might elect to consider through the course of the international negotiations; and (4) they would provide a partial basis for the domestic rulemaking record if the United States ultimately decided to support a Stockholm new-listing amendment and to regulate the chemical. The provisions do not require EPA to consider any of the submitted information during the course of the Agency's participation in the international process, nor do they create any obligations for the State Department.

The Bush Administration has objected to these mandatory notice and comment provisions on the grounds that (1) they would represent an unconstitutional delegation of legislative powers to international bodies and (2) they would violate the separation of powers doctrine by allowing Congress to infringe upon the president's treaty making powers. Because the DOJ letter does not directly address the non-delegation issue, this memorandum focuses primarily on the separation of powers argument.


2. Summary of DOJ's legal arguments

DOJ cites "The Writings of Thomas Jefferson" and dicta from United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936), to support the proposition that the Executive Branch has sole authority over the United States' negotiations with other nations. From that proposition, DOJ derives two conclusions: Congress cannot direct the President to vote a certain way in an international negotiation, and Congress cannot require the President to consult with anyone as he prepares to cast a vote. The latter conclusion provides the core of the Administration's objections to the notice and comment provisions of S. 1486. While the structure of DOJ's argument implicitly suggests that this conclusion is required by Curtiss-Wright, the only authority DOJ actually cites in support of it is a generic passage from Joseph Story's 1833 "Commentaries on the Constitution of the United States."

The letter next refers to several previous instances in which DOJ purportedly objected to legislation that would mandate consultation with Congress or with private parties in connection with the conduct of international negotiations. The letter references objections regarding trade negotiations under the Clinton and Reagan administrations. However, because this passage of the letter contains no citations, it is not possible to evaluate its arguments or conclusions fully.

The balance of the precedents identified in the letter consist of two signing statements by Presidents Clinton and Bush for foreign operations appropriations acts. In both statements, the presidents object to provisions in the acts that they assert would impermissibly circumscribe their power to conduct foreign affairs.

Finally, DOJ concludes that an alternative approach to mandatory notice and comment developed by the Administration and contained in a draft FIFRA bill circulated by EPA and dated February 25, 2004 would be constitutionally acceptable because, among other things, it is not linked to decisions in the international process.


3. Analysis

A. Constitutional framework

The first part of DOJ's argument, in which it states that the Executive Branch has sole authority over the United States' negotiations with other nations, is unremarkable. DOJ quotes the oft-cited dicta from Curtiss-Wright: "[T]he President alone has the power to speak or listen as a representative of the nation . . . he alone negotiates." From this dicta, DOJ extracts two conclusions. First, Congress cannot direct the President to vote a certain way in an international negotiation; second, Congress cannot require the President to consult with anyone as he prepares to cast a vote.

The latter conclusion is the most important one insofar as DOJ's analysis is concerned. However, in order to derive it from Curtiss-Wright, DOJ must rely on a syllogism: (1) Congress cannot direct the President how to negotiate a treaty. (2) Consultations with others are part of the negotiating process. (3) Therefore, Congress cannot direct the President to consult with others during a treaty negotiation.

It is not at all clear that this syllogism is logically coherent or that Curtiss-Wright supports it.2 In Curtiss-Wright, the Court was asked to determine whether a joint resolution of Congress that empowered the President to make findings that could result in the criminalization of certain international arms sales violated the rule forbidding the delegation of legislative power. See 299 U.S. 304, 315. The dicta cited in DOJ's letter is part of the discussion supporting the Court's determination that the President possesses foreign affairs powers that are independent of any legislative power delegated by Congress. See id. at 321-22. The opinion did not reach the question of whether Congress could require the Executive Branch to invite public comment relating to an international negotiation that might later be part of a domestic rulemaking record. Nor did it reach the question of whether such a requirement for public comment would be tantamount to negotiation.

Yet the syllogism embedded in DOJ's argument requires an assumption that the Court did reach that latter question. When the Court states in Curtiss-Wright that "[T]he President alone has the power to speak or listen as a representative of the nation . . . he alone negotiates," the Court is acknowledging that only the President may negotiate with other nations on behalf of the United States. DOJ's reasoning presumes that, in the realm of international relations, consultations with U.S. stakeholders must be viewed as part of the actual negotiations, even when the Executive Branch is completely free to ignore any information it obtains through such consultations and is completely free to negotiate in the international fora as if it had never received the information at all. This assumption that consultations are tantamount to negotiations is essential to DOJ's conclusion that statutes cannot require the President to consult with private organizations as he negotiates an international agreement. Yet the assumption is not supported by any passage in Curtiss-Wright.

The S. 1486 notice and comment provisions do not require or even suggest that the Executive Branch must utilize any acquired information in formulating its negotiating strategy, conducting a negotiation, or concluding any agreement. Instead, the focus of the notice and comment is on the Environmental Protection Agency informing stakeholders of the various ways that an agreement under the Stockholm Convention might affect domestic regulation, and providing those stakeholders with a timely opportunity to submit information that could be considered internationally or in an eventual domestic rulemaking if the President were to decide to conclude an agreement.

The domestic regulation of toxic chemicals, including the regulation of trade in them between the United States and other nations, falls squarely within the enumerated powers of Congress. See U.S. Const. art. I, § 8, cl. 3 (stating Congress has power to regulate commerce with foreign nations and among the several states). Because a congressional mandate for EPA to acquire information relevant to the exercise of these powers does not fall under the purview of international negotiation or the President's treaty making powers, DOJ's assertion that mandatory notice and comment provisions in the Stockholm Convention implementing legislation violate the separation of powers doctrine is without merit.

B. Prior practice under previous and current administrations

DOJ supports its analysis by claiming that the Department has a long history of objecting to legislation that would mandate consultation with Congress or with private parties in connection with the conduct of international negotiations. However, as we note above in our summary of DOJ's legal arguments, the letter fails to provide citations for any of the trade negotiation examples it describes, making a critical evaluation of those examples impossible. Despite that omission, reliance on these examples does not especially advance DOJ's point, because presidents including President Bush have long recognized that in the area of trade, they must often seek and obtain special authority from Congress if they are to negotiate effectively on behalf of the United States, see, e.g., Remarks to the Business Roundtable, PUB. PAPERS OF GEORGE W. BUSH (June 20, 2001) (acknowledging "in order for me to be effective on trade, I need trade promotion authority. I need the capacity as an administration to negotiate free trade agreements without the fear of them being undermined."), and that Congress may give this authority on the condition that the President will agree to notify and consult with Congress at various stages of any ensuing negotiation. See, e.g., Trade Act of 2002, 19 U.S.C. § 3804 (requiring President to notify and consult with Congress before initiating trade promotion negotiations).

Hence, it is not apparent how or whether this passage of the DOJ letter advances any understanding toward determining the constitutionality of mandatory notice and comment provisions in the Stockholm Convention implementing legislation. Indeed, in describing a DOJ letter sent to Senator Weicker during the Reagan Administration, DOJ says that it believed "a proposed consultation requirement was objectionable because any provision that would require that the Executive Branch disclose information that might interfere with the success of international negotiations would be subject to a valid claim of executive privilege." DOJ letter at 2-3 (emphasis added). Yet DOJ fails to explain how the notice and comment provisions of S. 1486 could possibly interfere with the success of international negotiations, leading us to suspect that these trade references are entirely off point.

Superficially more relevant is the remaining part of this section of the letter, in which DOJ cites two signing statements by Presidents Clinton and Bush, respectively, for the 2001 and 2002 Foreign Operations Appropriations Acts. In the 2001 signing statement, President Clinton objects to provisions in H.R. 4811 that: instruct his administration how it may vote on several specific issues, attempt to restrict his ability to participate in Kyoto Protocol negotiations, and require him to provide a detailed account of activities related to the reduction of greenhouse gases. See Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001, 36 WEEKLY COMP. PRES. DOC. 2809-10 (Nov. 13, 2000). However, nowhere in his statement does President Clinton object to or even mention provisions in the Act that would require him to consult with others during the course of international negotiations, despite the fact that the Act requires the Executive Branch to consult with representatives of human rights organizations and all government agencies with relevant information when negotiating bilateral financial assistance agreements, to help prevent publicly indicted war criminals from benefiting from such assistance. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001, H.R. 4811, Pub. L. No. 106-429, § 564(k) (2000). While this signing statement supports the proposition that Congress may not direct the President to vote a certain way in an international negotiation, it contradicts DOJ's assertion that there is a long history of the Executive Branch objecting to statutory consultation requirements.

President Bush's 2002 signing statement makes a similar point to the Clinton statement regarding Congress' attempt to require the Executive Branch to take particular positions for the United States in international organizations or accord priority to a particular objective in negotiations with such organizations. See Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002, 38 WEEKLY COMP. PRES. DOC. 49, 50 (Jan. 10, 2002). Unlike the Clinton statement, it goes a step farther and does support DOJ's objection to statutory consultation requirements. In the statement, the President objects to H.R. 2506's requirement that he consult periodically with international human rights groups when deciding whether to certify that the Colombian Armed Forces have not committed human rights abuses. See id. at 50; see also Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002, H.R. 2506, Pub. L. No. 107-115, § 567(b) (2002).

Additionally, President Bush objects in the statement to a provision regarding arms sales to Taiwan, which requires the administration periodically to brief the appropriate congressional committees on discussions relating to such sales. See 2002 Signing Statement at 50, Foreign Operations Appropriations Act of 2002, § 573(a). The President opines that he alone has the authority to determine what information about international negotiations may, in the public interest, be made available to Congress. By contrast, President Clinton did not object to an analogous provision in the 2001 bill. That provision would have required the president to consult, on a classified basis, with appropriate congressional leaders and committee chairmen and ranking members. See Foreign Operations Appropriations Act of 2001, § 581.

Examining these signing statements and appropriations bills, one discovers that while both Presidents Clinton and Bush objected to appropriations provisions that instructed them how to vote in various international fora, only President Bush objected to consulting with human rights groups or Congress about international issues. DOJ provides no other precedent for the putative constitutional prohibition on consultation. Instead, the Department asks us to accept its circular argument that the Bush Administration's opinion is authoritative because it is based on an objection that the Bush Administration made before.

C. The nondelegation doctrine applied to international relations

Early in the discussions between industry representatives, environmental and health NGOs, and Senate Environment and Public Works Committee staff, we learned that the Bush Administration objected to certain proposals for the Stockholm Convention implementing amendments on the grounds that they would impermissibly delegate lawmaking powers to international bodies and thus violate an "international nondelegation doctrine." President Bush referred to such a doctrine in his signing statement for the Clean Diamonds Trade Act, H.R. 1584, Pub. L. No. 108-19 (2003), when he said, "If section 15 [of the Act] imposed a mandatory duty on the President to certify to the Congress whether either of the two specified events has occurred and whether either remains in effect, a serious question would exist as to whether section 15 unconstitutionally delegated legislative power to international bodies." (emphasis added). Statement on Signing the Clean Diamond Trade Act, 39 WEEKLY COMP. PRES. DOC. 491 (April 25, 2003).

As we noted above, the DOJ letter contains no explicit reference to this international nondelegation theory. However, in its closing comments, DOJ says that one of the reasons its preferred alternative to mandatory notice and comment provisions is acceptable is that EPA reporting under the alternative "is not linked to decisions in the international process [and thus] does not raise the same constitutional concerns." See DOJ letter at 4. Thus, it is apparent that the nondelegation theory informs at least to some degree the reasoning outlined in the DOJ letter.

This theory is premised on the assumption that when Congress delegates responsibilities to the Executive Branch and makes the exercise of those responsibilities contingent on the occurrence of an international event, then Congress has unconstitutionally given lawmaking powers to whatever international institution is responsible for the event. But the theory is fatally flawed because it confuses who is exercising legislative power when the United States implements treaties in this fashion. While decisions by the international body may trigger the Executive Branch's responsibility to implement the law, that is so only because Congress decided that the law would be contingent on such a decision. Congress alone has established what the law will be, and it has delegated the responsibility to implement the law to the Executive Branch. The international body has no role in either of these functions.

U.S. courts have long held that such contingent delegations by Congress are constitutionally acceptable, so long as Congress provides an "intelligible principle" that "sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will." Yakus v. United States, 321 U.S. 414, 425 (1944); see also J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928) (applying "intelligible principle" test to sustain contingent delegation under the Tariff Act of 1922), Congressional Research Service, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 85-86 (Johnny H. Killian & George A. Costello eds., 1996) (discussing constitutional basis of contingent delegations).

We are aware of no instance in which a U.S. court has overturned any U.S. law on the basis of an international nondelegation doctrine. In fact, the U.S. Code contains numerous examples in which Congress requires the Executive Branch to act in response to the decision or action of an international body. These include, inter alia:

• Clean Air Act, 42 U.S.C. § 7671e, implementing the Montreal Protocol on Substances that Deplete the Ozone Layer (providing that in the event "the Montreal Protocol is modified to . . . control or reduce . . . any substance more rapidly [than otherwise provided by law]," the Administrator shall promulgate regulations to establish a more stringent phase-out schedule).

• Tariff Act, 19 U.S.C. § 1516(a)(g)(4)(A), implementing Chapter 19 of the North American Free Trade Agreement (NAFTA) (providing that when a Chapter 19 arbitration panel decides to refer a challenged matter on anti-dumping or countervailing duties back to the International Trade Commission, the ITC is bound by statute to "take action not inconsistent with the decision" of the panel).

• Chemical Weapons Convention Implementation Act, 22 U.S.C. § 6725, implementing the Chemical Weapons Convention (requiring the United States Government (through the State Department acting as the U.S. National Authority) to seek the issuance of a search warrant in response to a demand from the Organization for the Prohibition of Chemical Weapons (OPCW) to engage in a challenge inspection of a public or private facility).

• Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 811(d), implementing the Convention on Psychotropic Substances (providing that whenever the Secretary of State receives notification from the World Health Organization that a listing schedule will change, Secretary of Health, Education, and Welfare (now Health and Human Services) must publish the notice in the Federal Register, invite comment, and prepare medical and scientific evaluations).

• Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 346a(b)(4) (providing that the Administrator, in establishing a tolerance for a pesticide chemical residue in or on a food, shall determine whether a maximum residue level for the pesticide chemical has been established by the Codex Alimentarius Commission; if a Codex maximum residue level has been established for the pesticide chemical and the Administrator does not propose to adopt the Codex level, the Administrator shall publish for public comment a notice explaining the reasons for departing from the Codex level).

Based on our evaluation of relevant case law and the U.S. Code, we conclude that nothing in the domestic laws of the United States prevents the United States Congress from using treaty text as a basis for explaining to an administrative agency what Congress's policies and goals are, from requiring administrative agencies to implement international standards in a U.S. regulatory context, or from using a treaty obligation as the basis for a domestic regulation.


4. Conclusion

The Bush Administration continues to insist that mandatory notice and comment provisions proposed in U.S. implementing legislation for the Stockholm Convention would unconstitutionally infringe upon the President's treaty making powers. This memo has demonstrated that the Administration's position, as defended in the DOJ letter, has no grounding in law. DOJ's analysis fails because it rests on assumptions that are not supported by the U.S. case law it cites, and because DOJ's own practices do not demonstrate that previous administrations have held similar positions, despite DOJ's claims to the contrary.


For more information, please contact Glenn Wiser.

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Footnotes:

1. S. 1486 would amend the Toxic Substances Control Act (TSCA), 15 U.S.C. § 201 et seq. Similar notice and comment provisions have been proposed for companion amendments to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The constitutional issue DOJ raises is the same in both the TSCA and FIFRA contexts. At the time of this writing, no implementing bill to amend FIFRA has been introduced in the House or the Senate.

Both the TSCA and proposed FIFRA amendments also contain language to implement the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution (LRTAP POPs Protocol). While the analysis in this memorandum refers only to implementation of the Stockholm Convention, S. 1486 contains similar notice and comment provisions for each treaty. Our analysis applies equally to both.

2. DOJ also supports this conclusion by citing Joseph Story's commentaries on the constitution. Published in 1833, this passage is of little more than historical interest, is not binding, and is not on point to the issue.