July 27 (Bloomberg) -- Heard the one about the law that says the U.S. must cut aid to a country that has had a coup? Apparently the Barack Obama administration has: Its lawyers have reportedly told the president he can ignore the law simply by not asking whether Egypt has had a coup.
The joke would be funny if it weren’t so outrageous -- and such an affront to the rule of law in Washington, to say nothing of Cairo.
Many laws are complicated, but Section 508 of the Foreign Assistance Act isn’t. It reads: “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.”
In other words, money spent to aid a foreign country such as Egypt can’t be spent if there has been a coup. There is no loophole in this language.
The unnamed “senior official” who revealed the Obama team’s legal opinion didn’t actually reveal the legal reasoning behind its decision to keep the aid flowing, except to say that “the law does not require us to make a formal determination as to whether a coup took place.” What in the world does this cryptic description of a secret legal opinion mean?
The most likely possibility is that State Department lawyers are being hyperliteralists. The law says no aid if there has been a coup, but it never explicitly orders the administration to inquire whether a coup has occurred. It also contains no trigger stating that when the government changes hands in a recipient country, the president needs to determine if it has been a coup. The lawyers may have concluded that the president can bury his head in the sand, ignore the realities of what has happened in Egypt, and keep signing checks.
This ostrich theory of the law makes no sense, however. If it were correct, the law would amount to nothing more than advice to the president to suspend aid after a coup if he felt like it. Otherwise, he could always ignore the coup. Yet the law as written explicitly forbids assistance when a coup has occurred. That means that if one has, and the president keeps sending funds, he’s violating the law.
There might be no one who has standing to challenge this decision in court -- but the president is obligated under the Constitution to “take care that the laws be faithfully executed.”
Wanting to give the White House every benefit of the doubt, I batted around some ideas with a few legal colleagues, and we came up with a few other possible legal arguments. None were convincing, either.
Perhaps the president might claim an inherent commander-in-chief power or foreign-relations power to keep the money coming because of national security. But we aren’t at war, and Congress certainly has the power of the purse. What’s more, Congress has spoken clearly in the law, which means that the president’s power is at its nadir, according to the test devised by Justice Robert Jackson in the Youngstown steel seizure case.
Another option would be to claim that U.S. aid to Egypt somehow doesn’t “directly” assist Egypt, but considering that Congress allocates specific funds for the country, and has done so since the 1978 Camp David agreement, it’s difficult to see how this argument could be made.
It’s hard to escape the conclusion that the Obama administration is adopting some highly doubtful legal conclusion just because it thinks it can get away with it. There is no reason whatsoever for secrecy here -- except to shield itself from criticism of the content of the opinion. At least when the administration claimed its support for the Libya bombing campaign didn’t count as “hostilities” under the War Powers Act, it told the public what its strained interpretation of the law was, so that it could be criticized.
Secret interpretations of the law are almost as bad as secret laws. Both are incompatible with the rule of law. The Foreign Assistance Act is supposed to give other countries incentive to follow the law. How seriously is military chief General Abdelfatah Al-Seesi likely take our encouragement to follow Egyptian law when he observes how freely the White House ignores our own?
(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition” and “The Fall and Rise of the Islamic State,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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