GAO Says White House Broke the Law by Holding Science Meetings With China

Constitutional conflict. White House science adviser John Holdren (left) is under attack by Representative Frank Wolf (R-VA) for meetings with Chinese officials.

(Left to Right) White House Office of Science and Technology Policy; U.S. House of Representatives

The watchdog agency for Congress has sided with an influential House of Representatives Republican in his attempt to block bilateral scientific exchanges with China. But the Obama Administration insists that Congress has overstepped its authority.

The Government Accountability Office (GAO) issued a report yesterday that says the White House Office of Science and Technology Policy (OSTP) has violated a provision in a 2011 spending bill that prohibits OSTP and NASA from using any money for such exchanges. The appropriations bill became law in April, and the GAO report examines a series of May meetings in Washington, D.C., between U.S. and Chinese officials, including OSTP Director John Holdren, aimed in part at removing barriers to scientific collaboration between the two countries.

"OSTP's participation in the Innovation Dialogue and the Strategic and Economic Dialogue contravened the appropriations restriction," concludes GAO General Counsel Lynn Gibson in an 11 October letter to Representative Frank Wolf (R-VA). Wolf, a staunch critic of China, authored the language and chairs the appropriations panel that sets the budget for both OSTP and NASA. Gibson notes that OSTP has also violated a law barring federal employees from exceeding their agency's annual budget—in other words, since OSTP was given no money for such activities, it had none to spend.

OSTP doesn't deny that the meetings occurred and, in fact, estimates that it spent $3500 participating in activities that included hosting a dinner for Chinese officials. But ever since the spending bill was passed, it has maintained that Wolf's language unduly restricts the president's ability to conduct foreign policy, one of his duties under the U.S. Constitution.

That argument was backed up by the Department of Justice in a 19 September memo to OSTP's general counsel. In it, Virginia Seitz, an assistant attorney general in the Office of Legal Counsel, concludes that "OSTP may engage in most, if not all, of the activities you have described. … As a general matter, discussions of the sort identified in your request—meetings and exchanges with Chinese officials regarding policy concerns and possible cooperative undertakings or agreements relating to science and technology—fall squarely within the scope of the President's constitutional authority to engage in discussions with foreign governments." Seitz also says that "the plain terms" of the appropriations bill "do not apply to OSTP's use of funds to perform its functions as a member of the Committee on Foreign Investment in the United States."

The GAO report sidesteps the issue of whether the clause in the 2011 spending bill is constitutional. But it says that "legislation passed by Congress and signed by the President … is entitled to a heavy presumption in favor of constitutionality." At the same time, Gibson hints that the next step in the controversy may be for the government to file suit. "Absent a judicial opinion from a federal court that a particular provision is unconstitutional," Gibson writes, "we apply laws as written to the facts presented."