Egypt & the Take Care Clause

In the course of recent debates over how to respond to the events in Egypt, many have pointed out that the central legal question is whether Section 508 of the Foreign Assistance Act obligates the President to cancel hundreds of millions in U.S. military aid. Reports are now emerging that the Administration has quietly decided to suspend aid on a temporary basis, but without deciding that a coup has occurred. Putting aside the complex policy questions at stake, I want raise a couple of unconsidered points on the relationship between this decision and the President’s duty under the Take Care Clause, and suggest that the President has a statutory and constitutional obligation to go one step further and cancel military aid, unless Congress passes a new law overriding the current statute.

Here’s what Section 508 says:

None of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to finance directly any assistance to any country whose duly elected head of government is deposed by military coup or decree: Provided, That assistance may be resumed to such country if the President determines and reports to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office.

Like many others, I think it’s pretty clear that the statute applies. U.S. military assistance to Egypt falls into the category of funds that the text addresses, and there doesn’t appear to be any real question that a “coup” occurred. (The Administration’s careful avoidance of the term reminds me of the Clinton Administration’s refusal to use the word “genocide” to describe what happened in Rwanda in the early ‘90s.) As a result, the Administration probably has a statutory obligation to cut off aid. Some officials have suggested otherwise on the view that Section 508 doesn’t require a determination on whether a coup occurred, and thus permits the Administration to decline to make the factual finding necessary to trigger the statutory mandate, but that reading would gut the mandate itself. To say that the President has unlimited discretion to decide whether he will decide whether a coup has occurred is in effect the same as saying that the President has no real obligation to cancel aid. Perversely, such a reading would turn the statute’s prohibitory language into a pure grant of power—if a coup occurs, the President can cancel assistance if he so desires.

The more interesting question is whether the President has constitutional power to ignore the statute. On one hand, Article II states that the President “shall take Care that the Laws be faithfully executed,” and thus supports a simple argument in favor of cancelling assistance: Section 508 is a “law,” so the President has a duty to see that it is “faithfully executed,” and only by acknowledging that a coup occurred within the meaning of the statute can the President honor that duty; ignoring the statute or denying its application based on an implausible interpretation of its terms would be the opposite of faithful execution. Additionally, there is no general executive law-suspension power; the only textual support for a power not to honor valid federal law comes from the Suspension Clause, which applies only to habeas corpus, and resides in Article I, which suggests that the power is by nature legislative.

On the other hand, the Take Care Clause has limits. One is that it doesn’t obligate the President to oversee the execution of laws that are unconstitutional. Some have also advanced a second and more controversial limit under which an “extreme or emergency situation” involving foreign affairs or national security may justify an executive decision to violate a valid federal statute. The question posed by the coup in Egypt is whether either of these theories would authorize the President to resume military assistance in contravention of Section 508.

I think the better answer is no. One conceivable defense of eventually resuming aid is that the Take Care Clause does not apply to Section 508 because the statute interferes with the President’s exclusive power to recognize foreign governments, but that theory works only if barring assistance is equivalent to prohibiting the President from identifying the military leadership as the legitimate government of Egypt. I doubt the equivalence for a couple of reasons. First, there is no inherent link between recognition and aid, which the United States might restrict for any number of unrelated reasons, such as ensuring that U.S. weapons are not used to commit human rights abuses, maintaining a balance of power, punishing a government, or preventing assistance to a rival. Official practice demonstrates as much. A legislative prohibition on certain military aid to Russia, for example, doesn’t establish that the United States refuses to recognize President Putin’s regime as the government of Russia. Inversely, legislative authorization of military aid to Taiwan doesn’t mean that the United States recognizes Taipei as the government of China. Recognition hinges instead on the enumerated powers from which it derives—namely, the President’s powers to appoint and receive ambassadors. In the Russia and Taiwan examples, the status of diplomatic relations is the more reliable indicium of recognition, and has no relationship to military aid per se. Second, as some have pointed out, the executive previously honored Section 508 by cutting off aid to Cote d’Ivoire, the Central African Republic, and Pakistan, all without challenging the statute’s constitutionality. Those precedents make it hard to argue that Section 508 is now invalid.

One might also defend the eventual resumption of aid on a more controversial theory advocated by Robert Delahunty and John Yoo—i.e., that the Take Care Clause does not apply in extreme or emergency situations pertaining to foreign affairs. As applied to Egypt, the argument would have to be that the President has power to disregard Section 508 because the coup constitutes a national emergency for the United States and violating the statute is the only way to protect vital U.S. interests. Putting aside the general merits of the theory, its application to Egypt seems to encounter several significant problems. For one, the situation probably doesn’t qualify as an emergency in the extreme sense that the theory envisions. The United States is not a participant in the conflict, and faces no immediate risk of an armed attack as a result of Egyptian instability. If the Korean War was insufficient to justify President Truman’s unauthorized seizure of steel mills, then the Egyptian coup cannot justify the continuation of military aid in diametric opposition to the command of Congress.

Additionally, even assuming that the coup in Egypt qualifies as a national emergency, it’s doubtful that faithful execution of Section 508 would harm U.S. interests in such an extreme manner as to warrant disregarding the statute and the Take Care Clause. Strong ties with Egypt have produced a number of important benefits for the United States, including expedited transit through the Suez Canal, the use of Egyptian airspace, and peace between Egypt and Israel, but it’s not clear that ending U.S. military aid would completely reverse those benefits, and honoring the statute may even promote U.S. interests by deterring military takeovers in other states and encouraging the Egyptian generals to reconcile with their political opponents. Moreover, the cancellation of assistance would not have to be permanent. If assistance remains indispensable, Congress can always pass a new statute to override Section 508 vis-à-vis Egypt.

Finally, the purpose of Section 508 suggests that the rationale for the Delahunty & Yoo theory applies less persuasively here. It is one thing to argue that the President can violate a statute that may not have contemplated a new emergency; in that circumstance, the President might still plausibly claim to honor actual congressional intent. But it is another thing directly to violate the command of a statute that plainly envisions the circumstances that have arisen. Section 508 is not a law that simply failed to foresee the possibility of a coup, but one that Congress drafted for precisely that circumstance. Disregarding the statute would thus require a more robust and problematic assertion of executive power.

In short, even if one favors continuing aid as a matter of policy, the legal analysis seems to favor not simply suspending aid, but cancelling it altogether. Future aid will require either new statutory authorization or a transition back to democracy in Egypt. The Take Care Clause demands as much.

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