Boland Does Not Apply to the President

President Reagan did not violate the Boland Amendment when he asked the leaders of foreign governments to contribute funds to help the Nicaraguan contras .

The relevant language of the amendment during the period at issue prohibited “direct or indirect” support for the contras from any funds available to “the CIA, the Department of Defense, any intelligence agency, or any other agency of the United States.”

Very simply, the Boland Amendment does not apply to the President because he is not an “agency of the United States.”

The Federal Trade Commission, the Internal Revenue Service and the Coast Guard are agencies of the United States. Few if any Americans, if asked to give a comprehensive list of all agencies of the United States, would include the President. The President is not an agency of anything. He is the President of the United States, the person in whom the Constitution vests all executive authority.

If Congress had intended the Boland Amendment’s prohibitions to apply to the President, it could have said so. In the absence of a clear expression, Congress should not be assumed to have limited the President’s ability to exercise his best judgment as to what is in the best interest of the United States. Whether the same considerations would apply to the President’s subordinates would depend on whether they acted at his direction or on their own.

In some areas it may be all right for Congress to express its will in ambiguous terms and then leave it to the courts and others to decide what it really meant. But congressional fuzziness followed by expansive judicial interpretation is not acceptable in cases in which Congress attempts to regulate the head of another coordinate branch of government.

Under our separation-of-powers system, the dividing line between the responsibilities of Congress and the President is not always clear and bright. This is especially true in the area of foreign relations. It is quite clear that the Constitution contemplates a foreign-affairs role for both Congress and the President.

The President is our head of state. He deals on our behalf with his world counterparts, and is also the commander-in-chief of the Army and Navy.

Congress’ foreign-affairs responsibilities include the power to appropriate money (including that needed for foreign relations and to maintain a military force), the power to regulate international commerce and the power to declare war.

Under ideal circumstances, the exercise by these two branches of their foreign-relations prerogatives will be mutually compatible and will combine to serve American interests. It is important, however, that neither branch unduly intrude on the responsibilities of the other.

Because of the differences in constitutionally assigned powers, and also because of inherent differences in the branches themselves, each branch must go about its foreign-policy tasks in quite different ways. Congress’ legislative power is spread among 535 individuals. Their contribution, as a consequence, is limited to matters of broad policy determination. Congress is institutionally ill suited for such foreign-policy tasks as keeping secrets, authoritatively resolving a dispute and achieving a shared multinational objective. This nation, or any other nation, must have some person authorized to act on its behalf, decisively and authoritatively, when necessary.

From the standpoint of institutional capabilities, therefore, congressional hegemony is in the area of long-range policy determination. The President’s inherent advantage, by contrast, is in his ability to move more quickly and decisively. The importance of the President’s greater agility is demonstrated by the fact that the last American war that we entered as a result of a deliberate decision by Congress, rather than because of action-forcing events that left us little choice, was the War of 1812.

Continuing dialogues with other foreign leaders, and requests that those leaders act in the interest of our country, lie at the very core of presidential responsibility. To be sure, he may differ from Congress about what is in the best interest of our country. Difficult constitutional problems would arise in the rare instances in which (1) Congress’ and the President’s views differ, and (2) Congress acts unambiguously to prohibit the President from pursuing his objectives rather than those of Congress. But such instances are so rare that the circumstances under which one branch of government can completely take away the foreign-policy prerogatives of the other need not, and should not, be decided as a blanket matter.

For present purposes, the point is simply that, short of such an express confrontation, Congress’ laws should be interpreted so as to avoid clashes between the constitutional prerogatives of our two elected branches of government. As long as any other interpretation is possible, neither Congress nor the President should be assumed to have impaired the ability of the other to implement its own foreign-relations objectives. To the extent possible, each should be given the leeway to exercise its own best judgment, and then leave the ultimate judgment where the ultimate power is: in the people to whom both the President and Congress must periodically account for their stewardship.