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Constitutionality of congressional obstacles to OSTP Chinese engagement uncertain, says CRS

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Congress may have acted unconstitutionally when it sought to restrict the Office of Science and Technology Policy from engaging with Chinese officials by attaching stipulations against it in a spending bill, says a report from the Congressional Research Service.

In the report (.pdf) dated Nov. 26 and posted online by Secrecy News, CRS says there is still no final word on whether the president's constitutional authority to conduct foreign diplomacy prevents Congress from barring certain OSTP activities or if Congress has authority to stop OSTP from doing business with nations or companies from specific countries through language in its appropriations bills.

Congress attached language to a 2011 appropriations act to keep OSTP and other agencies from doing business with China or any Chinese-owned company. But, OSTP still engaged "in activities with China that Congress sought to proscribe," says the report--namely, the executive agency spent about $3,500 May 6 through May 11 on bilateral meetings with Chinese officials, according to OSTP officials.

OSTP and the Justice Department say the president's diplomacy authority shield OSTP because of its advisory role, but the Government Accountability Office disagreed and found OSTP in violation of the Antideficiency Act.

GAO says the appropriations act likely makes Congress's restrictions valid because "legislation that was passed by Congress and signed by the President, thereby satisfying the Constitution's bicameralism and presentment requirements, is entitled to a heavy presumption in favor of constitutionality."

At this point, says CRS, Congress has three likely paths to take.

First Congress may continue to assert its authority to restrict OSTP activities. It will likely do this through continued use of language to restrict activities, cuts to OSTP's budget to encourage compliance or "amend OSTP's organic statute with restrictive provisions."

This seems likely as Congress reduced OSTP's budget by 32.3 percent in fiscal 2012 and the language in its relevant appropriations act prohibits it from any activity that could "carry the risk of transferring sensitive technology to China." The current continuing resolution extends those restrictions through March 27, 2013, says CRS.

Congress may also acknowledge the president's authority to choose agents to act on his behalf in diplomatic efforts, permitting some OSTP acts that have been forbidden by law.

The final possibility put forth is that Congress may opt to remove existing restrictions entirely and not include them in its future appropriations laws, leaving the power over OSTP activities uncertain but still resolving the issue.

For more:
- read the CRS report, RL34736 (.pdf)

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