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