OLC on Congressional Attempts to Control Diplomacy Through Foreign Appropriations

Charlie Savage has a piece in today’s NY Times on the OLC’s recent memo advising the State Department that it may ignore congressional constraints attached to the 2009 foreign appropriations bill that purport to prohibit U.S. diplomats from attending meetings led by officials from states designated as state sponsors of terrorism on the ground that such constraints unconstitutionally limit the president’s foreign affairs authority.  John Elwood discusses the memo over at Volokh here.   As several of the professors quoted by Savage note, this is not a new practice — nor was it new under President George W. Bush.  Administrations going back to Gerald Ford have pushed back on what they view as unconstitutional encroachments by Congress (typically through the foreign appropriations process) on the president’s foreign affairs authority. I am working on a longer article on this topic and will have a bit more to say in the coming weeks.  But it is worth noting that the change in administration has (rather unsurprisingly) not resulted in a change in legal advice about the core foreign affairs powers of the president.  (Julian discussed Obama’s early approach to foreign affairs signing statements here.)