Prohibition of Spending for Engagement of the Office of Science and Technology Policy with China

Section 1340(a) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, which purports to prevent the Office of Science and Technology Policy from using appropriated funds “to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company,” is unconstitutional as applied to certain activities undertaken pursuant to the President’s constitutional authority to conduct the foreign relations of the United States.

The plain terms of section 1340(a) do not apply to OSTP’s use of funds to perform its functions as a member of the Committee on Foreign Investment in the United States.