GAO Says OSTP’s Chinese Bilateral Activities Violate Anti-Deficiency Act

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In the Department of Defense and Full-Year Continuing Appropriations Act, 2011 that funded the White House’s Office of Science and Technology Policy (OSTP) is nestled Section 1340, otherwise known as the “Wolf Clause”, prohibiting the use of OSTP appropriations for bilateral activities between OSTP and China, or Chinese-owned companies. This provision was inserted by Rep. Wolf, a member of the full House Appropriations Committee. Rep. Wolf requested the GAO investigation in May after learning that NASA Director Holdren violated this section of the law to lead bilateral discussions with the Chinese government.OSTP does not deny that it engaged in activities prohibited by section 1340. Instead, OSTP argues that section 1340 unconstitutionally infringes on the President’s ability to conduct foreign affairs, based on a June 28th letter from the Department of Justice.

In a report released today, the GAO splashed some cold water on the OSTP’s arguments about 1340 and found OSTP in violation of the Anti-Deficiency Act.

    In our view, legislation that was passed by Congress and signed by the President, thereby satisfying the Constitution’s bicameralism and presentment requirements, is entitled to a heavy presumption in favor of constitutionality.

    As a consequence of using its appropriations in violation of section 1340, OSTP violated the Antideficiency Act. Under the Antideficiency Act, an officer or employee of the U.S. Government may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation… By using its fiscal year 2011 appropriation in a manner specifically prohibited, OSTP violated the Antideficiency Act. Accordingly, OSTP should report the violation as required by the act. – GAO


2 comments to GAO Says OSTP’s Chinese Bilateral Activities Violate Anti-Deficiency Act

  • Borecrawler

    So basically, if I understand correctly, the OSTP deliberately decided to ignore the law, claiming that it was unconstitutional (even though it was ratified by Congress and signed by the president). I am bothered by any group that feels that they have the right to interpret the law however they choose. We have a supreme court that is supposed to take care of that function!
    On the other hand, I should not be surprised after how the NASA administrators chose to interpret the NASA Authorization Act until they were literally forced to begin heavy launch. We desperately need leadership that is passionate about space (not more interested in working with China and reaching out to our Muslim bretheren). We have diplomats to take care of these roles.

    • This sort of conduct was part-and-parcel of the Administration. As you point-out, NASA disregarded the Shelby Language preventing changes to Constellation and didn’t get the Sec. 309 SLS report out until 256 days after it was due, which has to be a record for NASA.

      Lately, though, Bolden has been singing the praises of the Orion MPCV. His event in Houston was eye-popping. Charlie had seen the Orion mockup’s. But never had the press been invited nor had he held a press conference afterwards. I don’t know if this really marks a new NASA attitude on Orion or SLS. But it was nice to see Charlie glowing about Orion.