Population Institute v. McPherson
| Decision Date | 12 August 1986 |
| Docket Number | Nos. 85-6042,85-6043,s. 85-6042 |
| Parties | POPULATION INSTITUTE, Population Council, et al., Appellants, v. M. Peter McPHERSON, Administrator, et al. POPULATION INSTITUTE, Appellant, William S. Green, et al. v. M. Peter McPHERSON, Administrator, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 85-03131).
Stanley J. Marcuss, with whom Dorothy A. Doherty and George V. Allen, Jr., Washington, D.C. were on brief, for appellant in Nos. 85-6042 and 85-6043.
Robert V. Zener, Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Dept. of Justice, Washington, D.C. were on brief, for appellees in Nos. 85-6042 and 85-6043.
Before MIKVA and BORK, Circuit Judges, and GREENE, * District Judge.
Opinion for the Court filed by Circuit Judge MIKVA.
The Administrator of the Agency for International Development (AID) has withheld ten million dollars earmarked by Congress for the United Nations Fund for Population Activities (UNFPA). The Administrator determined that a statutory prohibition on funding "any organization ... which ... supports or participates in the management of a program of coercive abortion or involuntary sterilization" bars the UNFPA from receiving the earmarked funds. Appellant, Population Institute, has been a grantee of UNFPA; it filed suit in the United States District Court to enjoin the Administrator from withholding such funds.
The district court ultimately dismissed appellant's complaint. Because we find that the Administrator's determination to withhold earmarked funds was reasonable, the Administrator may disburse the withheld funds in accord with his decision to reprogram them. We disagree, however, with the district court's reasons for dismissal and accordingly vacate that decision and remand the case with instructions.
The Agency for International Development is part of the United States government and is charged with providing assistance for family planning and demographic projects abroad. See 22 U.S.C. Sec. 2151b; Reorganization Plan No. 2 of 1979, 44 Fed.Reg. 41,165 (1979); Executive Order 12163, 44 Fed.Reg. 56,673 (1979). In October 1984, Congress appropriated $290 million to the AID for population planning programs. Foreign Assistance and Related Programs Appropriations Act of 1985, Pub.L. No. 98-473, 98 Stat. 1837, 1887 (1984) ("the Act"). The Act provided "[t]hat not less than $46 million, or 16 per centum of the amount appropriated, ... whichever is lower shall be available to support the United Nations Fund for Population Activities." Id. The UNFPA uses the funds it receives from the AID to provide grants to foreign countries and private agencies engaged in population control activities. Appellants Population Council and Population Institute, both private entities, receive grants from the UNFPA and devote them to population planning and demographic programs in the People's Republic of China.
Congress restricted the availability of earmarked funds for population planning programs. The Act provided "[t]hat none of the funds appropriated under this paragraph may be available to any country [or organization] which includes as part of its population planning programs involuntary abortion." In July of 1985, a Supplemental Appropriations Act for fiscal year 1985, Pub.L. No. 99-88, 99 Stat. 293 (1985), amended the Act and imposed a new condition on the disbursement of funds appropriated for population planning. That amendment ("the amendment") provides that
[n]one of the funds made available in this bill nor any unobligated balances from prior appropriations may be made available to any organization or program which, as determined by the President of The new restrictions on population planning funds resulted from heated controversy in the Congress and the Executive. The People's Republic of China has a one-child-per-family policy. Some U.S. policymakers suspect that coerced abortions and involuntary sterilization play a part in enforcing this population control goal. Because of these suspicions, some members of the Administration and the Congress desire to end all funding for Chinese population control programs. Others doubt the reports of atrocities and coercive practices in China, and believe that China's programs should be supported by the United States.
the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.
On March 30, 1985, the Administrator of AID announced his determination to withhold $10 million from the UNFPA. AID News Release No. 0021 (Mar. 30, 1985). The Administrator did not, however, find that UNFPA violated the Act's proscription on funding an "organization which includes as part of its population planning programs involuntary abortion." See id.; 131 Cong.Rec. S8526 (daily ed. June 20, 1985) (remarks of Senator Inouye). Indeed, the Administrator explained that AID News Release No. 0021 at 1. The Administrator could not withhold the earmarked funds in question indefinitely without finding that the UNFPA had violated the statutory restriction. He therefore announced that he would seek to have Congress remove the earmark and grant him authority to reprogram the $10 million.
Accordingly, on May 17, 1985, the President wrote to the Speaker of the House and requested that the Congress reduce fiscal 1985 funds earmarked for UNFPA from $46 to $36 million. Congress rejected the request and retained the $46 million earmarked for UNFPA funding. However, in a supplemental appropriations bill, H.R. 2577, the House proposed to amend the statutory limitations on the obligation of population planning funds by adding the following language:
None of the funds made available in this bill nor any unobligated balances from prior appropriations may be made available to any organization or program which supports or participates in the management of a program of coercive abortion.
See 131 Cong.Rec. H4052 (daily ed. June 11, 1985). On June 12 the House passed H.R. 2577 with the above language. See 131 Cong.Rec. H4200-01 (daily ed. June 12, 1985). In additional views appended to the House Committee Report, Representative Kemp, sponsor of the new limitation, stated that "the United Nations Fund for Population Activities would be immediately affected by this amendment because of its involvement with the program of coercive abortion in the People's Republic of China." H.R.Rep. No. 99-142, 99th Cong. 1st Sess. at 232.
After passing the House, H.R. 2577 was introduced in the Senate and referred to the Appropriations Committee. 131 Cong.Rec. S8170 (daily ed. June 13, 1985). The Senate Committee added the "as determined by the President of the United States" clause to the House version of the amendment. This addition was proposed by Senator Daniel Inouye, an opponent of defunding UNFPA activities in China. In its report, the Senate Committee stated that it believed the House version of the amendment would have "the effect of prohibiting any further U.S. assistance in fiscal year 1985 to the ... UNFPA." S.Rep. No. 99-82, 99th Cong., 1st Sess. at 107. The Inouye amendment was apparently designed to avoid this result. The Committee explained the addition of the Inouye amendment as follows:
The Committee finds that this issue is of such significance that the determination ought to be made by the President of the S.Rep. No. 99-82, 99th Cong., 1st Sess. at 107-08. The Senate Committee did not, however, include any specific language that affected the President's authority to delegate responsibility for making the determination. On June 20th the Senate passed the bill with both the Inouye amendment and a further amendment proposed by Senator Helms that added the words "or involuntary sterilization" to the provision. See 131 Cong.Rec. S8524-25 (daily ed. June 20, 1985); 131 Cong.Rec. S8587 (daily ed. June 20, 1985).
United States. The Committee recognizes that the President is empowered to delegate such responsibilities and would, in this particular instance, expect that the responsibility for making the required determination would, if delegated, be delegated only to the Secretary of State.
The Conference Committee accepted the Senate's amendments to H.R. 2577. See H.R.Rep. No. 99-236, 99th Cong., 1st Sess. at 53-54. The Committee reiterated the Senate Appropriations Committee's desire that the determination called for by the amendment be made by the President or the Secretary of State. The Conference Committee did not comment on the effect it believed the amendment would have on UNFPA funding. On August 15, 1985, the bill became law. Pub.L. 99-88, 99 Stat. 293.
On September 19th, the President delegated his authority to make the determination called for in the amendment to the Secretary of State. The President gave the Secretary full authority to redelegate the delegated authority. See Memorandum for the Secretary of State (Sept. 19, 1985); 3 U.S.C. Sec. 301 (); 22 U.S.C. Sec. 2381(a) (). Pursuant to the President's express authorization of a redelegation, the Secretary of State delegated the authority to M. Peter McPherson, Administrator of the AID and Acting Director of the International Development Cooperation Agency (IDCA), the AID's parent...
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