Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer Funds Under Foreign Aid Legislation

The President lacks constitutional and statutory authority to create a new entity within the Executive Branch to receive and administer funds appropriated under the International Security and Development Act of 1985 (ISDA).

The Appointments Clause in the Constitution requires that “offices” of the United States be established “by Law.” Any agency created to receive and administer funds appropriated under the ISDA would have to be headed by an officer of the United States, who would occupy an “office” of the United States. Such new offices of the United States must be created or authorized by Congress through enactment of legislation.

Presidential creation of the United States Sinai Support Mission under Executive Order No. 11896 does not provide persuasive precedent for Presidential creation of a new agency to administer funds under the ISDA. In that situation, the President was able to rely upon authorization provided by § 631 of the Foreign Assistance Act of 1961, which gave the President power to establish “missions” abroad.