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The defense authorization bill contains language designed to constrain the administration’s ability to negotiate an outer space code of conduct without consulting Congress. (credit: J. Foust)

Separation of powers battle continues over the Code of Conduct


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On January 3, the President signed into law H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013. H.R. 4310 authorizes support for service members and their families, and renews certain national security programs. The signed bill was followed by a signing statement, which further elaborated the President’s position on certain controversial provisions within the measure.1 The signing statement in this case mentioned several provisions within H.R. 4310 where the President disagreed with Congress, including Section 913, which deals with the potential future implementation of the International Code of Conduct.

Overall, the effect of Section 913 is to keep Congress in the loop during negotiations of the International Code of Conduct or any similar transparency and confidence-building measure.

This isn’t the first time that the Code of Conduct has been an issue between the Executive Branch and Congress. Beginning as early as 2010, when the United States was discussing the now-defunct European Code of Conduct, Congress noted its concern that the Administration was not including Congress in the negotiations or otherwise keeping it in the loop. The administration, for its part, asserted that the European Code of Conduct was not intended to be a legally binding treaty, that it was not required to seek the advice or consent of Congress, and it did not require Congressional intervention while negotiating it. The administration continued to hold this stance even after the failure of the EU Code.

After the announcement that the United States would not sign on to the EU Code of Conduct as proposed, several members of Congress sent a letter to the President of the United States addressing the Administration’s plan. The letter extended support for the administration’s decision not to sign on to the EU Code and, at the same time, expressed concern about Secretary of State Hillary Clinton’s announcement that the United States intended to negotiate a similar measure, using the European Code as a starting point. While the letter did not directly challenge the administration’s position that it had exclusive jurisdiction to negotiate or enter into a measure such as the Code of Conduct, it postured that Congress could have say over the implementation via its exclusive jurisdiction under the Commerce Clause. (See “Congressional opposition to a code of conduct for space”, The Space Review, February 6, 2012.)

In May 2012, the separation of powers battle over the Code of Conduct entered a new chapter through a draft version of H.R. 4310. The House took a different approach to prevent implementation of the International Code of Conduct or the EU Code, through its power of the purse, specifically, by prohibiting federal agencies that may be pivotal in implementing a code of conduct from expending funds towards that end. The administration responded by objecting to the language and threatening to veto the bill. It reiterated that since the Code of Conduct is not legally binding, the Administration is not required to seek Congressional input or consent in negotiating it or signing it. The Administration also attempted to apply greater political pressure by stating that the H.R. 4310 encroaches on the President’s exclusive authority to conduct foreign relations and could impede the country’s ability to conduct bilateral outer space activities with important allies.2 (See “Separation of powers battle over a space code of conduct heats up”, The Space Review, May 21, 2012.)

The final version of H.R. 4310, which the President signed on January 3, notably lacks the provision concerning the prohibition against funding; however, Congress replaced it with a more substantial provision specifically addressing the International Code of Conduct. Section 913 covers two distinct scenarios. The first deals with the scenario where the United States becomes a signatory to the International Code of Conduct or a similar agreement. In that case, Section 913 requires that:

  • The President submit to the congressional defense committees, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate a certification that such agreement has no legally binding effect or basis for limiting the activities of the United States in outer space;
  • The Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Director of National Intelligence jointly submit to the congressional defense committees a certification that such agreement will be equitable, enhance national security, and have no militarily significant impact on the ability of the United States to conduct military or intelligence activities in space.
  • No action is taken that would obligate the United States to reduce or limit the armed forces or armaments of the United States in outer space in a militarily significant manner, except pursuant to the treaty-making power of the President set forth in Article II, Section 2, Clause II of the Constitution or unless authorized by the enactment of further affirmative legislation by the Congress of the United States.
  • If the United States becomes a signatory to a non-legally binding international agreement concerning an International Code of Conduct for Outer Space Activities or any similar agreement, not less than 60 days prior to any action that will obligate the United States to reduce or limit the armed forces or armaments or activities of the United States in outer space, the head of each Department or agency of the federal government that is affected by such action shall submit to Congress notice of such action and the effect of such action on such department or agency.

The second scenario deals with the negotiation of the International Code of Conduct or a similar agreement. In this case, Section 913 requires that the Secretary of Defense, the Secretary of State, and the Director of National Intelligence jointly provide to the covered congressional committees regular, detailed updates on the negotiation of a non-legally binding international agreement concerning an International Code of Conduct for Outer Space Activities or any similar agreement. This requirement under Section 913 expires whenever the United States signs such an agreement or otherwise ceases negotiations towards that end.

Now that H.R. 4310 is now law, whether the administration will abide by the stipulations within the law or seek to avoid them, citing its own constitutional power over diplomatic matters, should soon become apparent.

Overall, the effect of Section 913 is to keep Congress in the loop during negotiations of the International Code of Conduct or any similar transparency and confidence-building measure (TCBM), and to ensure that the implementation of either the Code or Conduct or any future TCBM is done such that they are not legally-binding upon the United States.3 Section 913 appears to also take into consideration the potential arms control nature of TCBMs. TCBMs are traditionally used to pave the way towards legally binding arms control agreements, and Congress is apparently aware of this. It is this position on TCBMs for outer space security that both the Russian Federation and China have articulated as a prerequisite for entering into a TCBM such as the Code of Conduct.

Section 913 may also reinforce assertions by members of Congress in their January 18, 2012, letter to the President that a code of conduct could have a negative impact on commercial space activities, and that Congress could use its exclusive powers under the Commerce Clause to address them. Therefore, it appears that Congress intends to be involved with the Code of Conduct or any other similar transparency and confidence-building measure from negotiation to implementation. Obviously, the President’s mention of Section 913 in the signing statement accompanying H.R. 4310 is telling in that the President disagrees with the position Congress has taken to oversee both negotiation and implementation of the Code of Conduct and other subsequent TCBMs.

As noted earlier, there is nothing in Section 913 that indicates that Congress would attempt to use the power of the purse to prevent the implementation a code of conduct or similar measure. It is unclear whether the exclusion of the provision was the result of negotiation, veto threat, or because the provision would be unconstitutional on its face. However, like the implied use of its power under the Commerce Clause, the use of its power of the purse could be implied as well or may find its way into an amendment in a future appropriation.

Now that H.R. 4310 is now law, whether the administration will abide by the stipulations within the law or seek to avoid them, citing its own constitutional power over diplomatic matters, should soon become apparent. No doubt a sign of the administration’s intention will come soon given ongoing efforts regarding an International Code of Conduct as well as negotiations over the use of TCBMs in the Group of Government Experts.

Regardless of the fact that H.R. 4310 and its provisions, including those surrounding the Code of Conduct, have become law, the President, through his signing statement, makes it clear that the separation of powers battle on a code of conduct is set to continue on the domestic front. Congress, on the other hand, will likewise seek to enforce the provisions of H.R. 4310. Given past experiences between Congress and the White House there is certain to be disagreement. For its part, the task of the White House is more onerous for not only must it negotiate a Code of Conduct at the international level, but also contend with the new requirements set upon it on the home front.

Footnotes

1 Presidential signing statements are written comments issued by a President at the time of signing legislation. Frequently, signing statements only comment on the bill signed, by stating that the legislation is good or meets one or more pressing needs. Signing statements can also contain claims by presidents that they believe part of the legislation interferes with powers enumerated to the Executive Branch only making them unconstitutional, and they intend to ignore those parts or implement them only in ways they believe is constitutional. The use of signing statement is controversial, especially in the second instance.

2 The White House may be relying on a legal opinion requested by the General Counsel of the House Office of Science and Technology from the Department of Justice regarding the Wolf Amendment to the NASA Authorization Act of 2010. The Amendment specifically forbids NASA and the OSTP to expend funds for bilateral collaboration with China in any space-related activities, including the hosting of Chinese nationals. The memorandum is titled Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 and dated September 19, 2011. While the analysis in the memorandum is extensive, the essence of the memorandum is that Congress cannot use the threat of withholding funds to abrogate a constitutional power of the Executive Branch, which in this case is diplomatic powers enumerated exclusively to the President. Notably, the memorandum found that some of the prohibitions in the Wolf Amendment were not diplomatic in nature and therefore the expenditure of funds could be prohibited. Taking this opinion, the implementation of a code of conduct by federal agencies might be considered an act in furtherance of diplomatic activities and therefore any effort to prevent them through the denial of funds might be unconstitutional.

3 TCBMs have been used extensively for the purpose of arms control and specifically in the arena of nuclear weapons. By their nature TCBMs are considered a “top-down” approach to addressing issues. They are not intended to supplant disarmament accords but rather to be a stepping stone to legally enforceable instruments. However, per the National Space Policy the approach by the US in the UN Group of Governmental Experts is to use TCBMs in place of legally-binding treaties. Because they are not legally-binding, the President or any of the agencies under the Executive Branch can enter into negotiations for bi-lateral or multilateral TCBMs without the involvement of Congress. A good example is the Incidents on the High Seas Agreement between the United States and the USSR.


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