B-316655, Delegation of Authorities to the Director of Foreign Assistance, October 29, 2008
The Honorable Howard L. Berman
Chairman, Committee on Foreign
Affairs
House of Representatives
The Honorable Robert Menendez
Chairman, Subcommittee on International
Development and Foreign Economic
Affairs,
and International Environmental
Protection
Committee on Foreign Relations
United States
Senate
The
Honorable Daniel K. Akaka
Chairman,
Subcommittee on Oversight of Government
Management, the Federal Workforce, and
the
Committee
on Homeland Security and Governmental Affairs
United States
Subject: Delegation
of Authorities to the Director of Foreign Assistance
This opinion responds to your letter of
Our practice when rendering legal opinions includes
obtaining the views of the relevant agency to establish a factual record and to
elicit the agency’s legal position on the subject matter of the request.[3] In
accordance with this practice, we sent a development letter to the State
Department to solicit its views of the facts and law in question. We received a timely response from State and
followed up with informal discussions.
Based
on information and documentation we received from State, as well as our
independent research and analysis, we conclude for the reasons discussed below that,
with respect to functions originally conferred by statute either upon the Secretary
or the President, the subsequent redelegation by the Secretary of these
functions to the DFA was authorized by law.
BACKGROUND
The Secretary announced
the creation of the position of the Director of Foreign Assistance in
2006. According to the Secretary, she
created the position to better align foreign assistance programs with foreign
policy goals by having the DFA provide
guidance within State and to other agencies to develop and implement a coherent
foreign assistance strategy for the United States government.[4] According
to State’s fact sheet entitled, “New Direction for U.S. Foreign Assistance” and
the State Department Foreign Affairs Manual, the DFA:
·
develops a coordinated U. S. Government foreign
assistance strategy, including developing country specific assistance
strategies and annual country-specific assistance operational plans as well as the
Director of Foreign Assistance goals and priorities;
·
creates and directs consolidated policy, strategic
and program plans, the operational budget, implementation mechanisms, and staff
functions required to provide umbrella leadership to foreign assistance;
·
has authority over all Department of State and
USAID foreign assistance funding and programs, with continued participation in
program planning, implementation, budget, oversight, and program results
reporting from the various bureaus and offices within State and USAID, as part
of the integrated interagency planning, coordination and implementation
mechanisms;
·
provides coordination, guidance, and assistance
to all development assistance delivered through the Millennium Challenge
Corporation and the Office of the Global AIDS Coordinator as well as implement
a mechanism to effectively facilitate interagency collaboration of foreign
assistance programs and policies of other agencies and entities of the U.S.
Government; and
·
directs the required transformation of the U. S.
Government approach to foreign assistance in order to achieve the President’s
Transformational Development Goals, and provides high-level comprehensive
framework for reporting on achievements and summary of performance results that
support the organization’s strategic objectives.[5]
The Secretary subsequently delegated specific functions to the DFA related
to overseeing and administering various aspects of
DISCUSSION
As the head of a department, the Secretary has broad authority to create positions within the
agency and to employ and appoint officials in such positions. 5 U.S.C. sections 301, 3101. In addition, the State Department Basic
Authorities Act gives the Secretary broad authority to administer, coordinate,
and direct the personnel of the Department.
22 U.S.C. sect. 2651a. Utilizing
these authorities, the Secretary created the position of the DFA within the
Department. According to the State
Department Foreign Affairs Manual, the DFA serves concurrently as the USAID
Administrator, reports directly to the Secretary, and holds the rank at the
level of the Deputy Secretary of State.”[6]
The State Department Basic Authorities Act also
authorizes the Secretary to promulgate such rules and regulations as may be
necessary to carry out the functions of the Secretary and delegate “authority
to perform any of the functions of the Secretary or the Department to officers
and employees under the direction and supervision of the Secretary.” 22 U.S.C. sect. 2651a. Exercising this authority, the Secretary
delegated numerous functions to the DFA in section 1 of the Department of State
Delegation of Authority 293 (hereinafter Delegation 293).[7] The
functions delegated to the DFA in Delegation 293 fall into two broad
categories: (1) functions conferred upon
the Secretary of State by statute, and (2) functions originally conferred upon the President by statute and subsequently
delegated to the Secretary of State.[8] These two categories are covered by
subsections (a) and (b), respectively, of section 1 of the delegation, which provide:
“(a) The functions conferred upon the Secretary of State by sections 101(b), 531(b) and 622(c) of the Act [Foreign Assistance Act of 1961 (FAA), as amended], section 2(b) of the Arms Export Control Act, and section 1523 of the Foreign Affairs Reform and Restructuring Act of 1998 (22 U.S.C. 6593), including the authority to provide for continuous supervision and general direction of development and other economic assistance, military assistance, military education and training, and foreign military financing, designing a U.S. foreign assistance strategy and budgetary approach, determining whether there shall be a program for a country and the amount thereof, and approving the programming of foreign assistance. “(b) The functions conferred upon the Secretary by section 1-100 of the Order [Executive Order 12163, Sept. 29, 1979] and section 1 of Executive Order 11077 of January 22, 1963 (28 FR 629) insofar as such functions are necessary to approve assistance and programs under chapters 3 and 8 of Part I of the Act [FAA], Part II of the Act [FAA] (including chapters 4, 6 and 8 thereof), and the Migration and Refugee Assistance Act of 1962 (22 U.S.C 2601) [sic] as part of a coordinated U.S. foreign assistance strategy.”
We discuss each of these categories of functions in turn below.
Delegation of Functions Originally Conferred upon the
Secretary
With respect to those functions statutorily conferred
directly upon the Secretary, which are delineated in section 1, paragraph (a)
of Delegation 293, supra, the State
Department Basic Authorities Act states that “[u]nless otherwise specified in law, the Secretary may delegate
authority to perform any of the functions of the Secretary or the Department to
officers and employees under the direction and supervision of the
Secretary.” 22 U.S.C. sect. 2651a (emphasis
added). Under Delegation 293, functions statutorily
conferred upon the Secretary were delegated to the DFA.[9]
To determine if the Secretary’s authority to delegate these
functions to the DFA was otherwise specifically prohibited by law, we
researched and analyzed the statutory provisions that conferred these functions
upon the Secretary, as well as other relevant statutes including public laws
amending the FAA. We found no specific
prohibition in law on the Secretary’s authority to delegate the functions named
in paragraph (a) of Delegation 293 and described above. Based on this analysis, we conclude that it
was lawful for the Secretary to delegate these functions to the DFA pursuant to
the general delegation authority provided to the Secretary in the State
Department Basic Authorities Act.[10]
Delegation of Functions Originally Conferred upon the President
In addition to the delegation of functions that had been directly conferred upon the Secretary by statute, the Secretary also delegated certain functions to the DFA, which are delineated in section 1, paragraph (b) of Delegation 293, supra, that Congress had originally granted to the President. These functions were conferred upon the President by the Migration and Refugee Assistance Act of 1962[11] (MRAA) and the Foreign Assistance Act of 1961[12] (FAA). The President subsequently delegated these functions, and many others, to the Secretary of State in Executive Order No. 11077 and Executive Order No. 12163.
In order to determine whether redelegation of these functions to the DFA was authorized, we reviewed the relevant provisions of the MRAA and the FAA to determine (1) whether they authorized the President to delegate the functions to the Secretary, and (2) whether they provided authority for the Secretary to redelegate the same functions to a subordinate, such as the DFA. With respect to the MRAA, section 4(a)(1) states:
“The President is authorized to designate the head of any department or agency of the United States Government, or any official thereof who is required to be appointed by the President by and with the advice and consent of the Senate, to perform any functions conferred upon the President by this Act. If the President shall so specify, any individual so designated under this subsection is authorized to redelegate to any of his subordinates any functions authorized to be performed by him under this subsection, except the function of exercising the waiver authority specified in section 3(b) of this Act.” [13]
In authorizing the President to designate the head of an agency to perform the functions conferred on the President by the MRAA, the Act provides explicit authority for the President to delegate such functions to the Secretary of State. The Act also explicitly provides that the President may specify that his designee, in this case the Secretary of State, may redelegate the same functions to any subordinate.[14] Consistent with the authority granted to him in section 4(a)(1) of the MRAA, the President, by Executive Order No. 11077, properly delegated certain functions to the head of the Department of State, namely the Secretary. In addition, and also consistent with section 4(a)(1), the President specified that the Secretary of State could “redelegate any of his functions under [the] order to any of his subordinates.”[15] By specifying in the original delegation to the Secretary that the Secretary had the authority to redelegate such functions, the President granted the Secretary the necessary authority to subsequently redelegate functions to her subordinate that had been delegated to her. Therefore, the Secretary’s delegation of these functions to the DFA, a subordinate who reports directly to the Secretary, was proper.[16]
In addition to the MRAA functions, the President also delegated certain functions to the Secretary that were originally granted to the President by the FAA.[17] With respect to this delegation, the relevant provision of the FAA is section 621(a). Section 621(a) states:
“The President may exercise any functions conferred upon him by this Act through such agency or officer of the United States Government as he shall direct. The head of any such agency or such officer may from time to time promulgate such rules and regulations as may be necessary to carry out such functions, and may delegate authority to perform any such functions, including, if he shall so specify, the authority successively to redelegate any of such functions to any of his subordinates.” [18]
Similar to the authority provided by the MRAA for the
President to designate an agency head to carry out the functions included in
that Act, section 621(a) of the FAA authorizes the President to direct an
agency or officer of the
CONCLUSION
Section 1 of the State Department Basic Authorities Act[22]
provides the Secretary with general authority to delegate performance of any of
the statutory functions originally conferred upon the Secretary to those under
her direction and authority, such as the DFA.
Therefore, with respect to the functions which were originally conferred
by statute directly upon the Secretary, we conclude that the Secretary lawfully
delegated those functions to the DFA.
The MRAA[23] authorized
the President to delegate to the Secretary both the authority to perform
certain of those functions conferred upon him therein, and the authority for
the Secretary to redelegate those functions to a subordinate, such as the DFA. The FAA[24]
authorized the President to delegate certain functions conferred upon him
therein to the Secretary. Once the
President made such a delegation, the Secretary had authority under the FAA to
further delegate those functions to a subordinate, such as the DFA. Therefore, with respect to the functions
which were originally conferred by the Congress directly upon the President and
subsequently delegated by the President to the Secretary, we conclude that the
Secretary lawfully delegated those functions to the DFA.
Gary L. Kepplinger
General Counsel
Enclosure
Delegation of Functions Pursuant to State Department Delegation of
Authority 293 to the Director of Foreign Assistance
[1] Nomination of
Ambassador Randall Tobias: Hearing Before the Committee on Foreign Relations,
109th Congress, 2nd Session (2006) (questions for the record
submitted to Ambassador Randall Tobias by Senator Joseph Biden).
[2]
[3] GAO, Procedures
and Practices for Legal Decisions and Opinions, GAO-06-1064SP (
[4] Remarks on Foreign Assistance by Secretary of State
Condoleezza Rice, Washington, D.C., January 19, 2006, available at http://www.state.gov/secretary/rm/2006/59408.htm
(last visited Oct. 16, 2008).
[5] U.S. Department of State Foreign Affairs Manual
Volume 1, section 033.1.
[6]
[7] Delegation of
Authority by the Secretary of State to Officers of the Department of State and
the Administrator of the U.S. Agency for International Development of
Authorities Under the Foreign Assistance Act of 1961 and Other Related
Acts, 71 Fed. Reg. 38202 (
[8] The
[9] The functions that were delegated to the DFA
originate from the following statutory provisions: (1) sect. 101(b) of the Foreign Assistance Act of
1961 (FAA), Pub. L. No. 87-195, sect. 101(b), 75 Stat. 424 (Sept. 4, 1961) (codified as amended at 22 U.S.C. sect. 2151)
(establishing State’s policy guidance authority); sect. 531(b) of the FAA (codified as amended at 22 U.S.C. sect. 2346)
(establishing the State Department’s responsibility for the programming of the
economic support fund); sect. 622(c) of the FAA (codified as amended at 22 U.S.C. sect. 2382) (establishing the State
Department’s responsibility for the supervision and general direction of
assistance programs, except for the transfer of excess defense articles under
section 622(c)); sect. 2(b) of the Arms Export Control Act, (Foreign Military Sales
Act), Pub. L. No. 90-629, sect. 2(b), 82 Stat. 1320, 1322 (Oct. 22, 1968) (codified as amended at 22 U.S.C. sect. 2752)
(establishing the State Department’s role in foreign military financing); and sect.
1523 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, Div. G, sect. 1523, 112 Stat. 2681, 2681-794 (Oct. 21, 1998) (codified as amended at 22 U.S.C. sect. 6593)
(establishing the Secretary’s
[10] 22 U.S.C. sect.
2651a.
[11] Migration and Refugee Assistance Act of 1962, Pub. L.
No. 87-510, 76 Stat. 121 (June 28, 1962) (codified as amended at 22 U.S.C. sections 2601-2606).
[12]Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. sections 2151-2431k).
[13] Pub. L. No. 87-510, sect. 4(a)(1) (codified as amended at 22 U.S.C. sect. 2603).
[14]
[15] Exec. Order No. 11077, 28 Fed. Reg. 629.
[16] Neither
the MRAA nor Executive Order No. 11077 requires a “subordinate” who is the
recipient of the delegation to meet any additional criteria. For example, there is no requirement that the
subordinate to whom the Secretary redelegates functions be a Senate-confirmed
official.
[17] Exec. Order No. 12163, reprinted as amended in 22 U.S.C. sect. 2381.
[18] Pub. L. No. 87-195, sect. 621(a), 75 Stat. 424, 445 (codified as amended at 22 U.S.C. sect. 2381).
[19] The President also delegated a number of other
functions to the Secretary relying on additional statutory authorities in Executive
Order No. 12163. However, none of these
other functions were subsequently redelegated to the DFA.
[20] Exec. Order No. 12163, reprinted as amended in 22 U.S.C. sect. 2381.
We note that, in the
absence of specific delegation authorization, the general delegation statute,
sections 301 and 302 of title 3 of the United States Code, explicitly authorize
delegation to Senate confirmed positions except where precluded by
statute. See, e.g., 5
[21] As with the MRAA, neither the FAA nor Executive Order
No. 12163 requires a “subordinate” who is the recipient of the delegation to
meet any additional criteria. For
example, there is no requirement that the subordinate to whom the Secretary
redelegates functions be a Senate-confirmed official.
[22] 22 U.S.C. sect. 2651a.
[23] 22 U.S.C. sect. 2603.
[24] 22 U.S.C. sect. 2381.