Memoranda & Opinions |
Overview of Document |
STATUS OF PRESIDENTIAL MEMORANDUM ADDRESSING THE USE OF POLYGRAPHS
lbj-memo-opinion.pdf |
An undated four-page memorandum from President Lyndon Johnson entitled “Use of the Polygraph in the Executive Branch” and addressed to the heads of Executive Branch departments and agencies, which was neither issued as a directive to the Executive Branch nor understood contemporaneously to have legal effect, does not now bind the Department of Justice or other entities within the Executive Branch.
January 14, 2009 |
MEANING OF "TEMPORARY" WORK UNDER 8 U.S.C. § 1101(A)(15)(H)(II)(B)
dhs-temp-worker.pdf |
A regulation proposed by United States Citizenship and Immigration Services providing that "temporary" work under the H-2B visa program "[g]enerally . . . will be limited to one year or less, but . . . could last up to 3 years" is based on a permissible reading of 8 U.S.C. § 1101(a)(15)(H)(ii)(b) and is consistent with the 1987 opinion of this Office addressing the meaning of "temporary" work under 8 U.S.C. § 1101(a)(15)(H)(ii)(a).
December 18, 2008 |
CONSTITUTIONALITY OF THE OLC REPORTING ACT OF 2008
olc-reporting-act.pdf |
S. 3501, the “OLC Reporting Act of 2008,” which would require the Department of Justice to report to Congress on a wide range of confidential legal advice that is protected by constitutional privilege, is unconstitutional.
The bill raises very serious policy concerns because it would undermine the public interest in confidential advice and information sharing that is critical to informed and effective Government decisionmaking.
November 14, 2008 |
REQUESTS FOR INFORMATION UNDER THE ELECTRONIC COMMUNICATIONS PRIVACY ACT
fbi-ecpa-opinion.pdf |
The Federal Bureau of Investigation may issue a national security letter to request, and a provider may disclose, only the four types of information—name, address, length of service, and local and long distance toll billing records—listed in 18 U.S.C. § 2709(b)(1).
The term "local and long distance toll billing records" in section 2709(b)(1) extends to records that could be used to assess a charge for outgoing or incoming calls, whether or not the records are used for that purpose, and whether they are linked to a particular account or kept in aggregate form.
Before issuance of a national security letter, a provider may not tell the FBI whether that provider serves a particular customer or telephone number, unless the FBI is asking only whether the number is assigned, or belongs, to that provider.
November 5, 2008 |
SCOPE OF EXEMPTION UNDER FEDERAL LOTTERY STATUTES
FOR LOTTERIES CONDUCTED BY A STATE
ACTING UNDER THE AUTHORITY OF STATE LAW
state-conducted-lotteries101608.pdf |
The statutory exemption for lotteries "conducted by a State" requires that the State exercise actual control over all significant business decisions made by the lottery enterprise and retain all but a de minimis share of the equity interest in the profits and losses of the business, as well as the rights to the trademarks and other unique intellectual property or essential assets of the State's lottery.
It is permissible under the exemption for a State to contract with private firms to provide goods and services necessary to enable the State to conduct its lottery, including management services, as discussed in the opinion.
October 16, 2008 |
ENFORCEABILITY OF CERTAIN AGREEMENTS BETWEEN THE DEPARTMENT OF THE TREASURY AND GOVERNMENT SPONSORED ENTERPRISES
treasury-gse-ltr-opinion.pdf |
The Amended and Restated Senior Preferred Stock Purchase Agreements between the United States Department of the Treasury and the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation, according to their terms, would create rights enforceable through actions brought in the United States Court of Federal Claims in accordance with the ordinary rules and procedures governing litigation in that Court.
September 26, 2008 |
SCOPE OF THE DEFINITION OF “VARIOLA VIRUS” UNDER THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
variola-virus.pdf |
The definition of “variola virus” in 18 U.S.C. § 175c does not include other naturally occurring orthopoxviruses, such as cowpox and vaccinia, but is rather limited to viruses that cause smallpox or are engineered, synthesized, or otherwise produced by human manipulation from the variola major virus or its components.
July 24, 2008 |
ASSERTION OF EXECUTIVE PRIVILEGE CONCERNING THE SPECIAL COUNSEL'S INTERVIEWS OF THE VICE PRESIDENT AND SENIOR WHITE HOUSE STAFF
agletterepclaim07-15-08final.pdf |
It is legally permissible for the President to assert executive privilege in response to a congressional subpoena for reports of Department of Justice interviews with the Vice President and senior White House staff taken during the Department's investigation by Special Counsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson's identity as an employee of the Central Intelligence Agency.
July 15, 2008 |
ASSERTION OF EXECUTIVE PRIVILEGE OVER COMMUNICATIONS REGARDING EPA'S OZONE AIR QUALITY STANDARDS AND CALIFORNIA'S GREENHOUSE GAS WAIVER REQUEST
ozonecalwaiveragletter.pdf |
The President may lawfully assert executive privilege in response to congressional subpoenas seeking communications within the Executive Office of the President or between the Environmental Protection Agency and the EOP concerning EPA's promulgation of a regulation revising national ambient air quality standards for ozone or EPA's decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles.
June 19, 2008 |
ADMISSIBILITY IN FEDERAL COURT OF ELECTRONIC COPIES OF PERSONNEL RECORDS
electronic-personnel-records.pdf |
Federal official personnel and civil service retirement records that have been converted from paper to electronic format should be admissible in evidence in federal court under the Business Records Act, 28 U.S.C. § 1732, and should also qualify as "public records" admissible under Rule 1005 of the Federal Rules of Evidence.
Electronic versions of particular personnel records which, pursuant to statute or regulation, must be notarized, certified, signed, or witnessed, may be authenticated under Rules 901 and 902 of the Federal Rules of Evidence. Converting such documents to electronic format should not affect their admissibility under hearsay rules.
May 30, 2008 |
AUTHORITY OF ENVIRONMENTAL PROTECTION AGENCY TO HOLD EMPLOYEES LIABLE FOR NEGLIGENT LOSS, DAMAGE, OR DESTRUCTION OF GOVERNMENT PERSONAL PROPERTY
epa-property-opinion052808.pdf |
The Environmental Protection Agency may hold its employees liable for the negligent loss, damage, or destruction of government personal property or for the unauthorized personal use of agency-issued cell phones.
May 28, 2008 |
VALIDITY OF THE FOOD, CONSERVATION, AND ENERGY ACT OF 2008
validity-farm-bill-energy-act-2008.pdf |
Where a title in the version of the Food, Conservation, and Energy Act of 2008 passed by both Houses of Congress was inadvertently omitted from the enrolled bill that was presented to and vetoed by the President, the version of the bill presented to the President became law upon Congress’s successful override of the President’s veto.
May 23, 2008 |
PROMOTIONS OF THE JUDGE ADVOCATES GENERAL UNDER SECTION 543 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008
dod-op-re-tjags-041408.pdf |
Section 543 of the National Defense Authorization Act for Fiscal Year 2008 does not automatically advance incumbent Judge Advocates General to a three star general officer grade, but rather such promotion requires a separate appointment by the President, by and with the advice and consent of the Senate.
The incumbent Judge Advocates General may continue to serve out their full terms in their present two star grades, though the President may nominate them for promotion to the higher grade at any time, if he so chooses.
April 14, 2008 |
OFFICE OF GOVERNMENT ETHICS JURISDICTION OVER THE SMITHSONIAN INSTITUTION
smithsonian-op-022908.pdf |
The authority of the Office of Government Ethics to administer the Executive Branch ethics program under the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian Institution or its personnel.
February 29, 2008 |
PAYMENT OF BACK WAGES TO ALIEN PHYSICIANS
HIRED UNDER H-1B VISA PROGRAM
payment-alien-physicians-h1b-visa.pdf |
The statute authorizing
the H-1B visa program does not waive the federal Government's
sovereign immunity. Therefore, an administrative award of
back wages to alien physicians hired by the Department of
Veterans Affairs under the program is barred by sovereign
immunity.
February 11, 2008 |
CONSTITUTIONALITY OF DIRECT REPORTING REQUIREMENT IN SECTION 802(e)(1) OF THE IMPLEMENTING RECOMMENDATIONS
OF THE 9/11 COMMISSION ACT OF 2007
privacy-officer-report.pdf |
Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007 does not prohibit DHS or OMB officials from reviewing, in accordance with established Executive Branch review and clearance procedures, the DHS Chief Privacy Officer's draft section 802 reports before the reports are transmitted to Congress.
Section 802(e)(1) is best interpreted not to prohibit DHS and OMB officials from commenting on a draft CPO report where the CPO is permitted to, and in fact does, transmit to Congress a final report that does not reflect the comments or amendments from such officials.
Section 802(e)(1)'s direct reporting requirement need not be enforced in circumstances where its application would require the CPO to ignore the results of the President's review, through DHS and OMB, of a particular report. In such circumstances, the statute must yield to the President's exercise of his constitutional authority to supervise subordinate Executive Branch officers and their communications with Congress.
January 29, 2008 |
CONSTITUTIONALITY OF FEDERAL GOVERNMENT EFFORTS IN CONTRACTING WITH WOMEN-OWNED BUSINESSES
sba-hearing-papez-testimony.pdf |
This statement presents the Justice Department's views on the federal Government's efforts to contract with women-owned businesses in a manner consistent with the Constitution and federal statutes. Because the Justice Department's position on federal contracting programs that employ gender preferences is based on constitutional and legal standards that are not specific to the program addressed by the recently published Small Business Administration rule, the statement focuses on the legal standards that govern the Department's approach to such programs generally.
January 16, 2008 |
TERM OF THE COMMISSIONER OF INTERNAL REVENUE
irs-commissioner-term-opinion120407.pdf |
Under 26 U.S.C. § 7803
(2000), the five-year term of the Commissioner of Internal
Revenue runs from the date of appointment and is not calculated
from the expiration of his predecessor's term.
December 4, 2007 |
APPLICATION OF 18 U.S.C. § 207 TO FORMER CIA OFFICIALS’ COMMUNICATIONS WITH CIA EMPLOYEES ON DETAIL TO OTHER AGENCIES
cia-opinion.pdf |
The prohibition in 18 U.S.C. § 207(c), under which a former high level official, in the year after his departure, may not make “any communication to or appearance before any officer or employee” of his former agency, would apply if former CIA officials make communications to or appearances before CIA employees who are on detail to other agencies.
October 23, 2007 |
RESPONSIBILITY OF AGENCIES TO PAY ATTORNEY’S FEE AWARDS
UNDER THE EQUAL ACCESS TO JUSTICE ACT
cienega-gardens-final.pdf |
The judgment of attorney’s fees and expenses entered against the United States in Cienega Gardens v. United States cannot be paid out of the Judgment Fund because the Equal Access to Justice Act provides for payment.
Pursuant to EAJA, the Department of Housing and Urban Development must pay the award. HUD would be the “agency over which the [plaintiffs] prevail[ed]” under EAJA because it administered the federal program that was the subject of the litigation.
October 16, 2007 |
RATE OF ACCRUAL OF ANNUAL LEAVE BY
A CIVILIAN EMPLOYEE APPOINTED WHILE ON TERMINAL LEAVE PENDING
RETIREMENT FROM ONE OF THE UNIFORMED SERVICES
Terminal-Annual_Leave_Opinion_Publication_10162007.pdf |
A member of a uniformed
service appointed to a civilian position while on terminal
leave pending retirement from the service is entitled to credit
for his years of active military service only for the duration
of his terminal leave.
Once the employee retires from the uniformed service, he no
longer is entitled to credit for his years of active military
service unless he satisfies certain statutory exceptions detailed
in 5 U.S.C. § 6303(a) or (e). The employee's leave-accrual rate
must be recalculated upon his retirement to reflect his reduced
years of creditable service.
October 16, 2007 |
WHETHER THE DEFENSE OF MARRIAGE ACT PRECLUDES THE NON-BIOLOGICAL CHILD OF A MEMBER
OF A VERMONT CIVIL UNION FROM QUALIFYING FOR CHILD'S INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT
saadomaopinion10-16-07final.pdf |
The Defense of Marriage Act would not prevent the non-biological child of a partner in a Vermont civil
union from receiving child's insurance benefits under the Social Security Act.
October 16, 2007 |
DEPARTMENT OF JUSTICE AUTHORITY TO REPRESENT
THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT
IN CERTAIN POTENTIAL SUITS
hud-opinion-101007.pdf |
The Department of Justice has statutory authority to represent the Secretary of Housing and Urban Development in suits that may arise from his decision to exercise his authority under the United States Housing Act of 1937 to override certain state civil service protections that would otherwise apply to employees of the Housing Authority of New Orleans.
October 10, 2007 |
AUTHORITY OF THE PRESIDENT TO NAME AN ACTING ATTORNEY GENERAL
authority-of-the-president-name-ag-070908.pdf |
The President may designate an Acting Attorney General under the Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, even if an officer of the Department otherwise could act under 28 U.S.C. § 508, which deals with succession to the office of the Attorney General.
September 17, 2007 |
IMMUNITY OF FORMER COUNSEL TO THE PRESIDENT FROM COMPELLED CONGRESSIONAL TESTIMONY
miers-immunity-Opinion071007.pdf |
The former Counsel to the President is immune from compelled congressional testimony about matters that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity and is not required to appear in response to a subpoena to testify about such matters.
July 10, 2007 |
APPLICATION OF THE RELIGIOUS FREEDOM RESTORATION ACT TO
THE AWARD OF A GRANT PURSUANT TO THE JUVENILE JUSTICE AND
DELINQUENCY PREVENTION ACT
worldvision.pdf |
The Religious Freedom Restoration Act is reasonably construed to require the Office of Justice
Programs to exempt World Vision-a religious organization that has been awarded a grant under the
Juvenile Justice and Delinquency Prevention Act-from the religious nondiscrimination provision in 42
U.S.C. § 3789d(c)(1).
June 29, 2007 |
ASSERTION OF EXECUTIVE PRIVILEGE CONCERNING THE DISMISSAL AND REPLACEMENT OF U.S. ATTORNEYS
wh-executive-privilege062707.pdf |
Executive privilege may properly be asserted over the documents and testimony concerning the dismissal and replacement of United States Attorneys that have been subpoenaed by congressional committees.
June 27, 2007 |
APPLICATION OF THE EMOLUMENTS CLAUSE
TO A MEMBER OF THE FEDERAL BUREAU OF INVESTIGATION DIRECTOR'S
ADVISORY BOARD
fbi_advisory_board_opinion_061507.pdf |
A member of the Federal
Bureau of Investigation Director's Advisory Board does not
hold an "Office of Profit or Trust" under the Emoluments Clause
of the Constitution.
June 15, 2007 |
CONSTITUTIONALITY OF D.C. VOTING RIGHTS ACT OF 2007
dcvotingrights-act-2007.pdf |
S. 1257, a bill to grant the District of Columbia representation in the House of Representatives as well as to provide an additional House seat for Utah, violates the Constitution’s provisions governing the composition and election of the United States Congress.
May 23, 2007 |
WHEN A PRIOR CONVICTION QUALIFIES AS A “MISDEMEANOR CRIME OF DOMESTIC VIOLENCE”
atfmcdv-opinion.pdf |
A "misdemeanor crime of
domestic violence" under 18 U.S.C. § 922(g)(9) is limited
to those offenses of which the use or attempted use of physical
force or the threatened use of a deadly weapon is an element-that
is, a factual predicate specified by law and required to support
a conviction.
Where the legal definition of the crime at issue contains a
disjunctive element (which requires proof of only one of multiple
specified factual predicates), only one subpart of which requires
the use or attempted use of physical force or the threatened
use of a deadly weapon, application of the prohibition in section
922(g)(9) will turn on whether the factfinder found that the
subpart meeting the "misdemeanor crime of domestic violence" definition
had been proved (or whether the defendant pleaded guilty to
that subpart). The answer to that question may be gleaned from
the record of conviction or the supporting record of proceedings
in the court of conviction. Police reports cannot answer that
question.
The above interpretations also govern background checks by the
Federal Bureau of Investigation for firearms transfers under
the National Instant Background Check System, but additional
materials, including police reports, may be relied upon by the
NICS for certain limited purposes.
May 17, 2007 |
OFFICERS OF THE UNITED STATES WITHIN
THE MEANING OF THE APPOINTMENTS CLAUSE
appointmentsclausev10.pdf |
A position to which is delegated
by legal authority a portion of the sovereign powers of the
federal Government and that is "continuing" is a federal office
subject to the Constitution's Appointments Clause. A person
who would hold such a position must be properly made an "Officer[]
of the United States" by being appointed pursuant to the procedures
specified in the Appointments Clause.
April 16, 2007 |
USE OF APPROPRIATED FUNDS TO PROVIDE
LIGHT REFRESHMENTS TO NON-FEDERAL PARTICIPANTS AT EPA CONFERENCES
epa-light-refreshments13.pdf |
Light refreshments are "subsistence expenses" to
which the prohibition of 31 U.S.C. § 1345 applies, and various
statutory provisions that authorize the Environmental Protection
Agency to hold meetings, conduct training and provide grants
do not satisfy the "specifically provided by law" exception
to the prohibition.
A violation of section 1345 does not, by its own force, also violate
the Anti-Deficiency Act.
April 5, 2007 |
STATUS OF PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD UNDER 18 U.S.C. § 207(c)
pcaobopinionfinal.pdf |
A former senior employee of the Securities and Exchange Commission communicating with the Commission on behalf of the Public Company Accounting Oversight Board during the year after his service as a senior employee at the Commission ends would not be communicating on behalf of the United States and therefore 18 U.S.C. § 207(c) would apply to bar such a communication.
March 30, 2007 |
LEGALITY OF ALTERNATIVE ORGAN DONATION
PRACTICES UNDER 42 U.S.C. § 274e
organtransplant.pdf |
Two alternative kidney donation
practices, in which a living donor who is incompatible with
his intended recipient donates a kidney to a stranger in exchange
for the intended recipient's receiving a kidney from another
donor or increased priority on a waiting list, do not violate
the prohibition on transfers of organs for "valuable consideration" in
42 U.S.C. § 274e..
March 28, 2007 |
PRESIDENTIAL SIGNING STATEMENTS
presidential-signing-stmt.pdf |
This testimony discusses the purpose and history of presidential signing statements.
January 31, 2007 |
DAYS OF SERVICE BY SPECIAL GOVERNMENT
EMPLOYEES
sge_opinion_final.pdf |
The longstanding interpretation
of the Executive Branch that service by a special government
employee during any part of a day counts as a full day under
18 U.S.C. §§ 203 and 205, which impose greater conflict of
interest restrictions after a special government employee
works 60 days, is reaffirmed.
January 26, 2007 |
APPLICABILITY OF THE MISCELLANEOUS RECEIPTS ACT TO PERSONAL CONVENIENCE FEES PAID TO A CONTRACTOR BY ATTENDEES AT AGENCY-SPONSORED CONFERENCES
commerce-personal-convenience-fees.pdf |
Fees that attendees at agency-sponsored conferences pay to private event planners for items of personal convenience provided by the planners are not subject to the Miscellaneous Receipts Act, 31 U.S.C. § 3302(b).
November 22, 2006 |
JURISDICTION OF INTEGRITY COMMITTEE WHEN INSPECTOR GENERAL LEAVES OFFICE AFTER REFERRAL OF ALLEGATIONS
integritycommitteeopinion.pdf |
The Integrity Committee has authority to review, refer for investigation, and report findings with respect to, administrative allegations of wrongdoing made against a former Inspector General when the Committee receives the allegations during the subject's tenure as Inspector General, even if the subject later leaves office.
September 5, 2006 |
APPLICATION OF THE GOVERNMENT CORPORATION CONTROL ACT AND THE MISCELLANEOUS RECEIPTS ACT TO THE
CANADIAN SOFTWOOD LUMBER SETTLEMENT AGREEMENT
softwood-lumber-settlement.pdf |
An aspect of the proposed agreement between the United States and Canada settling various disputes regarding trade in softwood lumber products, in which duties now held by the United States would be distributed by a private foundation to “meritorious initiatives” related to, among other things, timber-reliant communities, would not violate the Government Corporation Control Act or the Miscellaneous Receipts Act.
August 22, 2006 |
WHETHER A PRESIDENTIAL PARDON EXPUNGES JUDICIAL AND EXECUTIVE BRANCH RECORDS OF A CRIME
pardonopfinal.pdf |
A presidential pardon granted under Article II, § 2 of the Constitution does not automatically expunge Judicial or Executive Branch records relating to the conviction or underlying offense..
August 11, 2006 |
LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE
NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT
nsa-white-paper.pdf |
The President has legal authority to authorize the National Security Agency to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither the Foreign Intelligence Surveillance Act nor the Fourth Amendment.
January 19, 2006 |
FINANCIAL INTERESTS OF NONPROFIT ORGANIZATIONS
11106nonprofitboards.pdf |
Under 18 U.S.C. § 208,
a nonprofit organization does not have a “financial
interest” in a particular matter solely by virtue of
the fact that the organization spends money to advocate a
position on the policy at issue in the matter.
January 11, 2006 |
APPLICATION OF 18 U.S.C. 1913 TO "GRASS
ROOTS" LOBBYING BY UNION REPRESENTATIVES
1913unionnov23.pdf |
Under 18 U.S.C. 1913, federal employees who
are union representatives may not use official time to engage
in "grass roots" lobbying in which, on behalf of their unions,
they ask members of the public to communicate with government
officials in support of, or opposition to, legislation or other
measures.
November 23, 2005 |
WAIVER OF SOVEREIGN IMMUNITY WITH RESPECT TO WHISTLEBLOWER PROVISIONS OF ENVIRONMENTAL STATUTES
waiver-whistleblower-provisions-environmental-statutes.pdf |
The federal Government's sovereign immunity has been waived with respect to the whistleblower provisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the whistleblower provision of the Clean Water Act.
September 23, 2005 |
APPOINTMENTS TO THE BOARD OF THE LEGAL SERVICES
CORPORATION
opinion-092005.pdf |
The President has authority to appoint
a member of the Board of the Legal Services Corporation who
has been confirmed after his or her statutory term of office
has expired, where the holdover provision of the statute allows
a member to serve until a successor is appointed.
September 20, 2005 |
APPLICATION OF 18 U.S.C. § 207(c) TO PROPOSED COMMUNICATIONS BETWEEN RETIRED NAVY FLAG OFFICER AND MARINE CORPS COMMANDERS IN IRAQ REGARDING SECURITY ISSUES
iraq-ethics-op.pdf |
It appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed communications between a retired Navy flag officer and Marine Corps commanders regarding the security situation in Iraq.
September 13, 2005 |
PROPOSED AMENDMENTS TO MILITARY COMMISSION ORDER
NO. 1
militarycommissionchangesop(final).pdf |
Certain proposed amendments to the Secretary
of Defense’s Military Commission Order No. 1 are consistent
with the President’s Military Order of November 12,
2001.
August 12, 2005 |
AUTHORITY UNDER THE DEFENSE BASE CLOSURE
AND REALIGNMENT ACT TO CLOSE OR REALIGN NATIONAL GUARD INSTALLATIONS
WITHOUT THE CONSENT OF STATE GOVERNORS
050810_brac_opinion.pdf |
The federal Government has
authority under the Defense Base Closure and Realignment Act
of 1990, as amended, to close or realign a National Guard
installation without the consent of the governor of the State
in which the installation is located.
August 10, 2005 |
ASSIGNMENT OF CERTAIN FUNCTIONS RELATED TO MILITARY
APPOINTMENTS
militaryappointments.pdf |
Section 531(a)(1) of title 10 does not affirmatively
prohibit delegation to the Secretary of Defense of the President's
appointment authority.
The Appointments Clause of the Constitution does not prohibit
Congress from allowing the President to choose between making
such an appointment himself and delegating it to the Secretary
of Defense.
So long as each nomination is submitted to the Secretary of
Defense for approval (whether individually or in groups) and
each appointment is made in the name of the Secretary of Defense
(whether the document evidencing the appointment be signed by
the Secretary or an authorized subordinate officer), the Constitution
would permit functions related to the appointment process to
be delegated to a subordinate officer below the Secretary of
Defense.
July 28, 2005 |
WHETHER CONFLICT OF INTEREST LAWS APPLY TO A PERSON
ASSISTING A SUPREME COURT NOMINEE
sgesupct.pdf |
On the facts described, a person whom
a judicial nominee asks to assist him in connection with the
nomination would not be an "officer" or "employee" and therefore
the federal conflict of interest laws would not apply to him.
July 22, 2005 |
WHETHER THE PRESIDENT MAY SIGN A BILL BY DIRECTING THAT HIS
SIGNATURE BE AFFIXED TO IT
opinion_07072005.pdf |
The President may sign a bill within
the meaning of Article I, Section 7 by directing a subordinate
to affix the President's signature to such a bill, for example
by autopen.
July 7, 2005 |
SCOPE OF CRIMINAL ENFORCEMENT UNDER 42 U.S.C. § 1320d-6
hipaa_final.htm |
Covered entities and those
persons rendered accountable by general principles of corporate
criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6,
and the knowingly element of the offense set forth in that
provision requires only proof of knowledge of the facts that
constitute the offense.
June 1, 2005 |
APPLICATION OF THE EMOLUMENTS CLAUSE TO A MEMBER
OF THE PRESIDENT'S COUNCIL ON BIOETHICS
050309_emoluments_clause.pdf |
A member of the President's
Council on Bioethics does not hold an "Office of Profit or
Trust" within the meaning of the Emoluments Clause of the
Constitution.
March 9, 2005 |
RELIGIOUS OBJECTIONS TO THE POSTAL SERVICE OATH OF OFFICE
religious-objections.pdf |
Section 1011 of title 39 of the United States Code specifies an oath of office that all Postal Service officers and employees must take. Title VII of the Civil Rights Act of 1964 does not require the Postal Service to depart from the dictates of section 1011 in order to accommodate (beyond what is required by section 1011) prospective employees who raise bona fide religious objections to taking this oath.
February 2, 2005 |
TREATMENT OF EXPUNGED STATE CONVICTIONS
UNDER THE IMMIGRATION AND NATIONALITY ACT
deportationproceedings.pdf |
Under the definition of “conviction” contained
in the Immigration and Nationality Act, for a conviction not
involving a first-time simple possession of narcotics, an
alien remains convicted, and thus removable under the Act,
notwithstanding a subsequent state action to vacate or set
aside the conviction that does not reflect a judgment about
the merits of the underlying adjudication of guilt.
January 18, 2005 |
STATUS OF THE DIRECTOR OF CENTRAL INTELLIGENCE
UNDER THE NATIONAL SECURITY INTELLIGENCE REFORM ACT OF 2004
dcidciaappointment0112final.pdf |
At the time the National
Security Intelligence Reform Act of 2004 takes effect, the
then-current Director of Central Intelligence would not require
a new appointment to the office of Director of the Central
Intelligence Agency should the President wish him to serve
in that position.
January 12, 2005 |
APPLICATION OF RECORD-DESTRUCTION
REQUIREMENTS TO INFORMATION RECEIVED FROM THE NATIONAL INSTANT
CRIMINAL BACKGROUND CHECK SYSTEM
nicsopinion.pdf |
The laws governing destruction
of background-check information do not require the Bureau
of Alcohol, Tobacco, Firearms, and Explosives to destroy information
it previously received from the National Instant Criminal
Background Check System when the NICS had determined that
an individual seeking to purchase a firearm may not lawfully
receive a firearm in the circumstance when the NICS later
overturns that determination.
January 11, 2005 |
LEGAL STANDARDS APPLICABLE UNDER
18 U.S.C. §§ 2340-2340A
18usc23402340a2.htm |
This opinion
interprets the federal criminal prohibition against torture
codified at 18 U.S.C. §§ 2340-2340A. It supersedes
in its entirety the August 1, 2002 opinion of this Office
entitled Standards of Conduct under 18 U.S.C. §§ 2340-2340A.
That statute prohibits conduct "specifically
intended to inflict severe physical or mental pain or suffering." This
opinion concludes that "severe" pain under the statute is
not limited to "excruciating or agonizing" pain or pain "equivalent
in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily functions, or
even death."
The statute also prohibits certain conduct
specifically intended to cause "severe physical suffering" distinct
from "severe physical pain."
December 30, 2004 |
POLITICAL BALANCE REQUIREMENT FOR THE CIVIL RIGHTS
COMMISSION
12062004_crcbalance.pdf |
In appointing a new member
to the United States Commission on Civil Rights, in order
to comply with the statutory requirement that “[n]ot
more than 4 of the members shall at any one time be of the
same political party,” the President should look to
the party affiliation of the other members at the time the
new member is appointed.
December 6, 2004 |
TERMS OF MEMBERS OF THE CIVIL RIGHTS COMMISSION
11302004_crcterms.pdf |
Under 42 U.S.C. § 1975,
the six-year term of a member of the United States Commission
on Civil Rights begins upon the expiration of his or her predecessor's
term, even if the succeeding member is appointed some time
after the predecessor's term ends.
November 30, 2004 |
APPLICABILITY OF SECTION 504 OF THE REHABILITATION ACT TO A TRIBALLY CONTROLLED SCHOOL
tribal_op_final_signed_11_16_04.pdf |
Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice.
November 16, 2004 |
USE OF APPROPRIATIONS TO PAY TRAVEL EXPENSES FOR
AN INTERNATIONAL TRADE ADMINISTRATION FELLOWSHIP PROGRAM
31usc1345.pdf |
The payment of travel expenses
for International Trade Administration fellows is barred by
31 U.S.C. § 1345 because the proposed ITA fellowship
program that would bring representatives from various countries
to the United States would constitute a “meeting” within
the meaning of section 1345.
October 7, 2004 |
LEGALITY OF EEOC'S CLASS ACTION REGULATIONS
usps-eeoc-092004.pdf |
The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised with respect to the Equal Employment Opportunity Commission's class action regulations.
The Equal Employment Opportunity Commission's class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners suggested by the United States Postal Service: the regulations do not purport to prevent claimants from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and they do not forestall the running of the limitations period.
September 20, 2004 |
AUTHORITY OF HUD’S CHIEF FINANCIAL OFFICER TO SUBMIT FINAL REPORTS ON VIOLATIONS OF APPROPRIATIONS LAWS
hud-cfo-rpt-authority.pdf |
The Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer of the Department of Housing and Urban Development to report to the President and Congress on violations by the agency of the Anti-Deficiency Act and other appropriations laws concerning expenditures, but the CFO must first submit his reports to the Secretary of HUD for review and approval.
August 31, 2004
|
ETHICS ISSUES RAISED BY THE RETENTION AND USE OF FLIGHT PRIVILEGES BY EMPLOYEES OF THE FAA
faaflightprivilegesopinion-final.pdf |
Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier's ability to honor the employee's flight privileges.
An employee with flight privileges and the airline that provided them have a "covered relationship" that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee's participating in a matter involving that airline would create an "appearance problem." The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case.
Although flight privileges could constitute a "payment" within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an "extraordinary payment" under the described circumstances.
Flight privileges are not a type of interest that would qualify as "stock" or "any other securities interest" under a Department of Transportation regulation (5 C.F.R. § 6001.104(b)) that supplements the OGE impartiality regulations.
August 30, 2004 |
REQUIREMENT THAT "PRIVATE CITIZENS" BE APPOINTED FROM "PRIVATE LIFE" TO THE NATIONAL COUNCIL FOR
THE HUMANITIES
nchapptmtopinion-final.pdf |
Because state and local public officials, including a county commissioner, are not "private citizens" who would be appointed "from private life" within the ordinary meaning of those terms in 20 U.S.C. § 957(b), such officials are disqualified from appointment to the National Council for the Humanities.
August 27, 2004 |
WHETHER THE SECOND AMENDMENT SECURES
AN INDIVIDUAL RIGHT
secondamendment2.pdf |
The Second Amendment
secures a right of individuals generally, not a right of States
or a right restricted to persons serving in militias.
August 24, 2004 |
EXPENDITURE OF APPROPRIATED FUNDS
FOR INFORMATIONAL VIDEO NEWS RELEASES
opfinal.htm |
Informational
video news releases produced by the Department of Health and
Human Services regarding the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 do not constitute impermissible "covert
propaganda" in violation of the Consolidated Appropriations
Resolution, 2003, which forbids the expenditure of appropriated
funds for "publicity or propaganda purposes."
July 30, 2004 |
AUTHORITY TO PRESCRIBE REGULATIONS LIMITING THE
PARTISAN POLITICAL ACTIVITIES OF THE COMMISSIONED OFFICERS CORPS
IN THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
5usc301.pdf |
The Department of Commerce
may prescribe regulations limiting the partisan political
activities of the Commissioned Officers Corps in the National
Oceanic and Atmospheric Administration.
July 29, 2004 |
APPLICATION OF 18 U.S.C. 207(f) TO
A FORMER SENIOR EMPLOYEE
oge_op2_22jun04.htm |
18 U.S.C. '
207(f) prohibits a former senior employee of an Executive
Branch department from representing a foreign entity before
Members of Congress within one year of the termination of
his employment.
June 22, 2004 |
APPLICABILITY OF ANTI-DISCRIMINATION STATUTES
TO THE PRESIDIO TRUST
presidio-trust062204.pdf |
The issue the Presidio Trust has presented is of the sort that Executive Order 12146 calls upon the Attorney General, and hence the Office of Legal Counsel, to resolve.
The Presidio Trust is exempt from section 717 of Title VII of the Civil Rights Act of 1964 and section 15 of the Age Discrimination in Employment Act of 1967 to the extent that these statutes apply to the appointment, compensation, duties, or termination of Trust employees, but not otherwise.
June 22, 2004 |
AUTHORITY OF AGENCY OFFICIALS TO
PROHIBIT EMPLOYEES FROM PROVIDING INFORMATION TO CONGRESS
crsmemoresponsese.htm |
Consistent with
longstanding Executive Branch positions, Department of Health
and Human Services officials have the authority to prohibit
officers or employees of the Department from providing information
to Congress.
May 21, 2004 |
STATUS OF NATIONAL VETERANS BUSINESS
DEVELOPMENT CORPORATION
nvbdcop2.htm
|
The National
Veterans Business Development Corporation is a “Government
corporation” under 5 U.S.C. § 103 and an “agency” under
31 U.S.C. § 9102.
March 19, 2004 |
"PROTECTED PERSON" STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
gc4mar18.pdf
|
The Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(IV) governs the United States occupation of Iraq.
The following persons, if captured in occupied Iraq, are not "protected persons" within the meaning of article 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.
March 18, 2004 |
APPORTIONMENT OF FALSE CLAIMS ACT
RECOVERIES TO AGENCIES
falseclaimsrecoveries_mar12final.pdf
|
Whether an agency's
revolving fund is entitled to receive from a False Claims
Act recovery (in addition to single damages equal to the actual
amount of the payment made as a result of the false claim)
pre-judgment or pre-settlement interest on that payment and
investigative and administrative costs attributable to the
false claim depends on whether the fund is authorized to borrow
money at interest, earn interest on its own investments, and
pay its own investigative and administrative expenses.
March 12, 2004 |
LIABILITY OF CONTRACTORS IN AIRBRIDGE DENIAL PROGRAMS
airbridgestate.pdf |
A contractor ordinarily will not be criminally liable for assisting in certain foreign government programs for the aerial interdiction of illegal narcotics traffic.
March 1, 2004 |
STATUS OF THE FOREIGN CLAIMS SETTLEMENT
COMMISSION
fcsc_status_02202004.pdf |
The Foreign Claims
Settlement Commission is subject to the Attorney General's direction
in administrative matters, except where that direction would
interfere with the Commission's independence in adjudicating
claims.
February 20, 2004 |
WHETHER CERTAIN DIRECT RECORDING ELECTRONIC
VOTING SYSTEMS COMPLY WITH THE HELP AMERICA VOTE ACT AND THE AMERICANS
WITH DISABILITIES ACT
drevotingsystems.htm |
A direct recording
electronic voting system that produces a contemporaneous paper
record, which is not accessible to sight-impaired voters but
which allows sighted voters to confirm that their ballots accurately
reflect their choices before the system officially records their
votes, would be consistent with the Help America Vote Act and
with Title II of the Americans with Disabilities Act, so long
as the voting system provides a similar opportunity for sight-impaired
voters to verify their ballots before those ballots are finally
cast.
October 10, 2003 |
HOLDOVER AND REMOVAL OF MEMBERS OF
AMTRAK'S REFORM BOARD
amtrak.htm |
A member of Amtrak's
Reform Board whose statutory term has expired may not hold over
in office until a successor is appointed.
September 22, 2003 |
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION ACTIONS AGAINST PUBLIC EMPLOYERS TO ENFORCE SETTLEMENT
OR CONCILIATION AGREEMENTS
eeoc_authority_opinion_final.htm |
The
Equal Employment Opportunity Commission lacks the authority
to initiate an action in federal court against a public employer
to enforce a settlement or conciliation agreement negotiated
by the EEOC during its administrative process.
September 8, 2003 |
TEMPORARY FILLING OF VACANCIES IN THE
OFFICE OF UNITED STATES ATTORNEY
09052003_usaqanda.pdf |
Two statutes that
provide for the temporary filling of vacancies in the office
of United States Attorney, 28 U.S.C. § 546 and 5 U.S.C. §§ 3345-3349d,
operate independently, and either or both may be used for a
particular vacancy.
September 5, 2003 |
AUTHORITY OF CHIEF FINANCIAL OFFICER
UNDER FY 2003 HUD APPROPRIATIONS
hudapprop.htm |
Provisions of
the Department of Housing and Urban Development Appropriations
Act for FY 2003 did not assign all responsibility for appropriations
law matters to HUD's Chief Financial Officer to the exclusion
of the General Counsel.
August 12, 2003 |
ELIGIBILITY OF UNLEGITIMATED CHILDREN
FOR DERIVATIVE CITIZENSHIP
ins_opinion.pdf |
An alien child
who was born out of wedlock and whose paternity has not been
established by legitimation is eligible for derivative citizenship
under section 320 of the Immigration and Naturalization Act
at the time the child's mother becomes a naturalized citizen.
July 24, 2003 |
INTERPRETATION OF SECTION 586 OF THE FOREIGN OPERATIONS, EXPORT FINANCING, AND RELATED PROGRAMS APPROPRIATIONS ACT
section-586-interpret.pdf |
Existing statutory provisions that prohibit or impose mandatory restrictions on the public release of information are not overridden by section 586 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2003, which requires the President to order federal agencies "to expeditiously declassify and release to the victims' families" information regarding the murders of certain Americans in El Salvador and Guatemala. Provisions that permit but do not require the Government to withhold information are, however, overridden by section 586.
It is permissible to interpret the scope of the information covered by section 586 to be limited to classified information.
July 18, 2003 |
VA'S AUTHORITY TO FILL CERTAIN PRESCRIPTIONS
WRITTEN BY NON-VA PHYSICIANS
vaprescriptions.htm |
The Department
of Veterans Affairs is authorized to fill prescriptions written
by non-VA physicians for veterans placed on VA waiting lists.
July 3, 2003 |
DESIGNATION OF ACTING DIRECTOR OF THE
OFFICE OF MANAGEMENT AND BUDGET
06122003_ombdirector2.pdf |
The President's
designation of an employee to act as Director of OMB under the
Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, is itself
the appointment of an inferior officer and satisfies the Appointments
Clause, U.S. Const. Art. II, § 2, cl. 2, even if the employee
had not earlier been an "Officer of the United States."
June 12, 2003 |
APPLICATION OF 18 U.S.C. 603 TO CONTRIBUTIONS TO THE PRESIDENT'S RE-ELECTION COMMITTEE
18usc603.pdf |
Civilian Executive Branch employees do not violate 18 U.S.C. 603 by contributing to a President's authorized re-election campaign committee.
May 23, 2003 |
AUTHORITY OF THE DEPARTMENT
OF THE INTERIOR TO PROVIDE HISTORIC PRESERVATION GRANTS TO HISTORIC
RELIGIOUS PROPERTIES SUCH AS THE OLD NORTH CHURCH
OldNorthChurch.htm |
The Establishment
Clause does not bar the award of historic preservation grants
to the Old North Church or to other active houses of worship
that qualify for such assistance, and the section of the National
Historic Preservation Act authorizing the provision of historic
preservation assistance to religious properties listed on the
National Register of Historic Places is constitutional.
April 30, 2003 |
BOND PROCEEDING OF UNDOCUMENTED
ALIENS SEEKING TO ENTER
THE UNITED STATES ILLEGALLY
InreDJ.htm |
In determining whether
to release on bond undocumented migrants who arrive in the United
States by sea seeking to evade inspection, it is appropriate
to consider national security interests implicated by the encouragement
of further unlawful mass migrations and the release of undocumented
alien migrants into the United States without adequate screening.
In bond proceedings involving aliens seeking
to enter the United States illegally, where the Government
offers evidence from sources in the Executive Branch with
relevant expertise establishing that significant national
security interests are implicated, Immigration Judges and
the Board of Immigration Appeals shall consider such interests.
Considering national security grounds applicable
to a category of aliens in denying an unadmitted alien’s
request for release on bond does not violate any due process
right to an individualized determination in bond proceedings
under section 236(a) of the Act.
April 17, 2003 |
SCOPE OF THE ATTORNEY GENERAL'S AUTHORITY
TO ASSIGN DUTIES UNDER 21 U.S.C. § 878(a)(5)
dea_21usc_03242003.pdf |
Under 21 U.S.C. § 878(a)(5),
the Attorney General may authorize the Drug Enforcement Administration
to investigate possible violations of federal law, even if those
violations do not concern the narcotics laws.
March 24, 2003 |
QUORUM REQUIREMENTS
nlrb_quorum_03042003.pdf |
The National
Labor Relations Board may issue decisions even when only two
of its five seats are filled, if the Board, at a time when it
has at least three members, delegates all its powers to a three-member
group and the two remaining members are part of this group and
both participate in the decisions.
March 4, 2003 |
LIMITATIONS ON THE DETENTION
AUTHORITY OF
THE IMMIGRATION AND NATURALIZATION SERVICE
INSDetention.htm |
The Immigration and
Nationality Act by its terms grants the Attorney General a full
90 days to effect an alien’s removal after the alien is
ordered removed under section 241(a) of the Act, and it imposes
no duty on the Attorney General to act as quickly as possible,
or with any particular degree of dispatch, within the 90-day
period. This reading of the Act raises no constitutional infirmity.
It is permissible for the Attorney General to take more than
the 90-day removal period to remove an alien even when it would
be within the Attorney General's power to effect the removal
within 90 days. The Attorney General can take such action, however,
only when the delay in removal is related to effectuating the
immigration laws and the nation’s immigration policies.
Among other things, delays in removal that are attributable
to investigating whether and to what extent an alien has terrorist
connections satisfy this standard.
February 20, 2003 |
APPOINTMENT OF MEMBER
OF HOLOCAUST MEMORIAL COUNCIL
holocaustmemorial.htm |
The process of appointing
an individual as a member of the United States Holocaust Memorial
Council was not completed.
Even if the process of appointing a member of the Council
had been completed, the President's appointment of another individual
to that same position effected a removal of that appointee.
February 6, 2003 |
DEPARTMENT OF TRANSPORTATION
AUTHORITY TO EXEMPT CANADIAN TRUCK DRIVERS FROM CRIMINAL LIABILITY
FOR TRANSPORTING EXPLOSIVES
canadian_truckers.htm |
The Department of
Transportation possesses the authority to issue a regulation
that, under section 845(a)(1) of title 18, would exempt Canadian
truck drivers from criminal liability under section 842(i) of
that title. DoT, however, has not issued such a regulation,
and therefore section 842(i) liability would attach to a Canadian
truck driver transporting explosives in the United States.
February 6, 2003 |
WHETHER CANTEEN SERVICE
PROVIDED THROUGH THE VETERANS’ CANTEEN SERVICE IS EXEMPT FROM
REVIEW UNDER THE FEDERAL ACTIVITIES INVENTORY REFORM ACT OF 1998
veteranscanteen.htm |
Canteen service provided
through the Veterans’ Canteen Service is not exempt from
review under the Federal Activities Inventory Reform Act of 1998.
January 31, 2003 |
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S
AUTHORITY TO IMPOSE MONETARY SANCTIONS AGAINST FEDERAL AGENCIES
FOR FAILURE TO COMPLY WITH ORDERS ISSUED BY EEOC ADMINISTRATIVE
JUDGES
01062003_eeocnavy.pdf |
The doctrine of
sovereign immunity precludes the Equal Employment Opportunity
Commission from imposing monetary sanctions against federal
agencies for violations of orders of EEOC administrative judges.
January 6, 2003 |
FUNDING FOR TECHNICAL ASSISTANCE FOR
AGRICULTURAL CONSERVATION PROGRAMS
usdasection11.htm |
Funding for technical
assistance for the agricultural conservation programs listed
in amended section 1241(a) of the Food Security Act of 1985
is subject to the "section 11 cap" on transfer of Commodity
Credit Corporation funds. The Secretary of Agriculture may draw
on the Department of Agriculture's appropriation for Conservation
Operations to fund technical assistance for these programs.
January 3, 2003 |
LEGALITY OF FIXED-PRICE
INTERGOVERNMENTAL AGREEMENTS FOR DETENTION SERVICES
detentioncontracts.htm |
The Department of Justice
has authority to enter Intergovernmental Agreements with state
or local governments to provide for the detention of federal prisoners
and detainees on a fixed-price basis and is not limited to providing
compensation for costs under such agreements.
December 31, 2002 |
DUTY TO FILE PUBLIC FINANCIAL DISCLOSURE REPORT
financialdisclosurereport.pdf |
A member of a commission in the Executive Branch need not file a public financial disclosure report in circumstances where the employee's salary is set by administrative action within a range specified by statute, is below the statutory salary threshold for such reports, but could have been set at a level making a public report necessary.
The financial disclosure obligations of Legislative Branch officials should be construed similarly, because the statutory language applicable to officials in the Executive Branch is, in relevant part, identical to that applicable to officials in the Legislative Branch.
December 19, 2002 |
UNDER SECRETARY OF THE TREASURY FOR ENFORCEMENT
treasapp.pdf |
The President does not have a legal duty to make a nomination for Under Secretary
of the Treasury for Enforcement.
If the President does not make a nomination, the Secretary of the Treasury could perform the duties himself or assign them to
another official of his Department.
December 19, 2002 |
WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ'S
WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A "FURTHER MATERIAL BREACH" UNDER
U.N. SECURITY COUNCIL RESOLUTION 1441
materialbreach.pdf |
False statements or omissions in Iraq's weapons of mass destruction declaration would by themselves constitute a "further material breach" of United Nations Security Counsel Resolution 1441.
December 7, 2002 |
EXPIRATION OF AUTHORITY
OF RECESS APPOINTEES
recessexpire.htm |
Two members of the
National Labor Relations Board who received recess appointments
between the first and second sessions of the 107th Congress
may not continue to serve on the Board after the Senate adjourned
the second session sine die.
November 22, 2002 |
DESIGNATION OF ACTING SOLICITOR OF LABOR
scalia.pdf |
Eugene Scalia, now serving as the Solicitor
for the Department of Labor under a recess appointment, could be given a second position in the
non-career Senior Executive Service in the Department of Labor before or after his recess appointment
expires and, while serving in his non-career Senior Executive Service position, could be designated
as the Acting Solicitor after his recess appointment expires.
November 15, 2002 |
EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
iraq-unscr-final.pdf |
United Nations Security Council Resolution 1441 does not alter the legal authority, under international law, granted by existing U.N. Security Council resolutions to use force against Iraq.
November 8, 2002 |
AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
iraq-opinion-final.pdf |
The President possesses constitutional authority to use military force against Iraq to protect United States national interests. This independent constitutional authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution.
Using force against Iraq would be consistent with international law because it would be authorized by the United Nations Security Council or would be justified as anticipatory self-defense.
October 23, 2002 |
AUTHORITY OF FEMA TO PROVIDE
DISASTER ASSISTANCE TO SEATTLE HEBREW ACADEMY
FEMAAssistance.htm |
The Stafford Disaster
Relief and Emergency Assistance Act of 1974 and its implementing
regulations permit FEMA to provide federal disaster assistance
for the reconstruction of Seattle Hebrew Academy, a private
religious school that was damaged in an earthquake in 2001.
The Establishment Clause of the First Amendment does not pose
a barrier to the Academy's receipt of such aid.
September 25, 2002 |
APPLICATION OF 44 U.S.C. § 1903
TO PROCUREMENT OF PRINTING OF GOVERNMENT PUBLICATIONS
08222002_44usc1903.pdf |
44
U.S.C. § 1903 does not prevent executive agencies from
using private printers at agency expense to print copies of
government publications for their own use while at the same
time requisitioning depository copies from the Government Printing
Office at GPO expense.
August 22, 2002 |
FEDERAL RESERVE BOARD
EFFORTS TO CONTROL ACCESS TO BUILDINGS AND OPEN MEETINGS
fedreserveopinion.htm |
The Board of Governors
of the Federal Reserve System may, consistent with its obligations
under the Government in the Sunshine Act, place observers of
an open meeting of the Board in a separate room to watch the
meeting on closed-circuit television.
It is permissible under both the Sunshine Act and the Piracy
Act for the Board to require disclosure of personal information
and satisfaction of a security check as a condition of entering
the Board's buildings for access to the separate room to observe
an open meeting.
July 9, 2002 |
SURVEY OF THE LAW OF EXPATRIATION
expatriation.htm |
Expatriating a U.S.
citizen subject to the Citizenship Clause of the Fourteenth
Amendment on the ground that, after reaching the age of 18,
the person has obtained foreign citizenship or declared allegiance
to a foreign state generally will not be possible absent substantial
evidence, apart from the act itself, that the individual specifically
intended to relinquish U.S. citizenship. An express statement
of renunciation of U.S. citizenship would suffice.
June 12, 2002 |
AUTHORITY OF FEDERAL JUDGES
AND MAGISTRATES TO ISSUE "NO-KNOCK" WARRANTS
noknock.htm |
Federal judges and magistrates
may lawfully and constitutionally
issue "no-knock" warrants where circumstances justify a no-knock
entry, and federal law enforcement officers may lawfully apply for
such warrants under such circumstances.
Although officers need not take affirmative steps to make an
independent re-verification of the circumstances already recognized
by a magistrate in issuing a no-knock warrant, such a warrant
does not entitle officers to disregard reliable information clearly
negating the existence of exigent circumstances when they actually
receive such information before execution of the warrant.
June 12, 2002 |
APPLICABILITY OF INELIGIBILITY
CLAUSE TO APPOINTMENT OF CONGRESSMAN TONY P. HALL
inelhall.htm
|
The Ineligibility Clause
of the Constitution would not bar the President from appointing
Congressman Tony P. Hall as United States Representative to the
United Nations Agencies for Food and Agriculture, with the rank
of Ambassador.
May 30, 2002 |
AUTHORITY OF THE CHEMICAL
SAFETY AND HAZARD INVESTIGATION BOARD TO DELEGATE POWER
csb
|
Although the Chemical
Safety and Hazard Investigation Board may not name an "Acting
Chairperson," it may delegate administrative and executive authority
to a single member while the position of chairperson is vacant.
April 19, 2002 |
CENTRALIZING BORDER CONTROL
POLICY UNDER THE SUPERVISION OF THE ATTORNEY GENERAL
border_control_policy.pdf |
In general, the President
may not transfer the functions of an agency statutorily created
within one Cabinet department to another Cabinet department without
an act of Congress.
The President may not delegate his presidential authority to supervise
and control the executive departments to a particular member of
the Cabinet where no statutory authority exists to do so.
The President may exercise his own power to establish a comprehensive
border control policy for the federal Government and direct a single
Cabinet member to lead and coordinate the efforts of all Cabinet
agencies to implement that policy.
March 20, 2002 |
ROLE OF LEGAL GUARDIANS
OR PROXIES IN NATURALIZATION PROCEEDINGS
immigaccommodation031302 |
Section 504 of the Rehabilitation
Act requires the INS as a reasonable accommodation to permit a
legal guardian or proxy to represent a mentally disabled applicant
in naturalization proceedings.
March 13, 2002 |
APPLICATION OF 18 U.S.C. § 203
TO FORMER EMPLOYEE'S RECEIPT OF ATTORNEY'S FEES IN QUI TAM ACTION
ed203.2.pdf |
18 U.S.C. § 203
would not bar a former federal employee from sharing in attorney's
fees in a qui tam action, provided that those fees, calculated
under the lodestar formula, are prorated such that the former
employee does not receive any fees attributable to his time in
the government.
February 28, 2002 |
STATUS OF TALIBAN FORCES UNDER
ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
pub-artc4potusdetermination.pdf |
The President has reasonable factual
grounds to determine that no members of the Taliban militia are entitled to prisoner
of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the
Treatment of Prisoners of War.
February 7, 2002 |
ASSERTION OF EXECUTIVE
PRIVILEGE WITH RESPECT TO PROSECUTORIAL DOCUMENTS
executiveprivilege.htm |
Executive privilege
may properly be asserted in response to a congressional subpoena
seeking prosecutorial decisionmaking documents of the Department
of Justice.
December 10, 2001 |
APPLICATION OF FEDERAL ADVISORY COMMITTEE
ACT TO NON-GOVERNMENTAL CONSULTATIONS
faca_militarycommissions.pdf |
The Federal Advisory Committee Act
does not apply to the consultations that the Department of Defense
plans to conduct with various individuals from outside the government
regarding the policies and procedures that DOD is developing for
military commissions.
December 7, 2001 |
APPLICATION OF PRIVACY ACT CONGRESSIONAL-DISCLOSURE
EXCEPTION TO DISCLOSURES TO RANKING MINORITY MEMBERS
privacy_act_opinion.pdf |
The congressional-disclosure
exception to the disclosure prohibition of the Privacy Act generally
does not apply to disclosures to committee ranking minority
members.
December 5, 2001 |
CONSTITUTIONAL ISSUES
RAISED BY COMMERCE, JUSTICE AND STATE APPROPRIATIONS BILL
cjsflanigan.pdf
|
A provision prohibiting
the use of appropriated funds for United Nations peacekeeping
missions involving the use of United States Armed Forces under
the command of a foreign national unconstitutionally constrains
the President's authority as Commander in Chief and his authority
over foreign affairs.
A provision prohibiting the use of appropriated funds for
cooperation with, assistance to, or other support for the International
Criminal Court would be unconstitutional insofar as it would
prohibit the President from providing support and assistance
to the ICC under any and all circumstances, but it can be applied
in a manner consistent with the President's constitutional authority
in the area of foreign affairs.
November 28, 2001 |
LEGALITY OF THE USE OF MILITARY COMMISSIONS
TO TRY TERRORISTS
pub-millcommfinal.pdf |
The President possesses inherent authority under the Constitution, as Chief Executive and Commander in Chief of the Armed Forces of the United States, to establish military commissions to try and punish terrorists captured in connection with the attacks of September 11 or in connection with U.S. military operations in response to those attacks.
November 6, 2001 |
AUTHORITY OF THE DEPUTY
ATTORNEY GENERAL UNDER EXECUTIVE ORDER 12333
25 |
The Deputy Attorney
General has authority to approve searches for intelligence purposes
that are conducted under section 2.5 of Executive Order 12333.
November 5, 2001 |
APPLICATION OF 18 U.S.C. § 208
TO TRUSTEES OF PRIVATE TRUSTS
section208trustee.htm |
Although a trustee
of a private trust, solely by virtue of his capacity as a trustee,
should not be deemed to have a personal financial interest in
the property of the trust, a trustee of a private trust may have
such an interest under certain circumstances. Further, a trustee
of a private trust also should be considered to be serving in
the capacity of a "trustee" of an "organization" for purposes
of 18 U.S.C. § 208(a).
November 2, 2001 |
DURATION OF THE TERM OF
A MEMBER OF THE CIVIL RIGHTS COMMISSION
crcterm.htm |
A member of the Civil
Rights Commission, appointed when a predecessor died before
the end of his term, serves only the remainder of her predecessor’s
term.
October 31, 2001 |
DISCLOSURE OF CONFLICTS OF INTEREST
OF MEMBERS OF FDA ADVISORY PANELS
fda-op.pdf |
Special government employees who
serve as members of a Food and Drug Administration advisory panel
and who seek waivers of conflicts of interest must publicly disclose
any conflicts of interest they may have that relates to the work
to be undertaken by the panel. The FDA may not waive a panel member's
conflict until the panel member makes the public disclosure.
The FDA has considerable discretion to determine how detailed the
panel member's disclosure must be, so long as such disclosure is
adequate to inform the public of the nature and magnitude of the
conflict.
October 5, 2001 |
CHECKING NAMES OF PROHIBITED
PERSONS AGAINST RECORDS IN THE NICS AUDIT LOG CONCERNING ALLOWED
TRANSFERS
nicswatchlist31.htm |
The Federal Bureau
of Investigation may check whether names of individuals known
to be prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(5)
appear in records concerning allowed transfers in the audit
log of the National Instant Criminal Background Check System
in the course of auditing the performance of the NICS, and may
share the results of such searches with the Bureau of Alcohol,
Tobacco, and Firearms.
October 1, 2001 |
THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND
NATIONS SUPPORTING THEM
warpowers925 |
The President has
broad constitutional power to take military action in response
to the terrorist attacks on the United States on September 11,
2001. Congress has acknowledged this inherent executive power
in both the War Powers Resolution and the Joint Resolution passed
by Congress on September 14, 2001.
The President has constitutional power not only to retaliate
against any person, organization, or State suspected of involvement
in terrorist attacks on the United States, but also against
foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against
terrorist organizations or the States that harbor or support
them, whether or not they can be linked to the specific terrorist
incidents of September 11.
September 25, 2001 |
POST-EMPLOYMENT
RESTRICTION OF 12 U.S.C. § 1812(e)
otspost2.pdf |
A Director of the Office of
Thrift Supervision who resigns at the President's request is
not subject to the two-year restriction, under 12 U.S.C. § 1812(e),
against working for an insured depository institution or a depository
institution holding company.
September 4, 2001 |
PRESIDENT’S AUTHORITY
TO MAKE A RECESS APPOINTMENT TO THE NATIONAL LABOR RELATIONS BOARD
nlrbrecess.htm |
The President may
make a recess appointment to the National Labor Relations Board
of a person whose term as a Senate-confirmed member expired
during the current recess of the Senate.
August 31, 2001 |
DESIGNATION OF ACTING ASSOCIATE ATTORNEY GENERAL
vra2.pdf |
Phil Perry, who has already been designated as the first assistant to the office of the Associate Attorney General by virtue of his appointment as the Principal Deputy Associate Attorney General, may, consistent with the Vacancies Reform Act of 1998, serve as the Acting Associate Attorney General even though he was not the first assistant when the vacancy occurred.
Because the President has not designated another person as the Acting Associate Attorney General under the Vacancies Reform Act, Mr. Perry, as the Principal Deputy, is required to perform the functions and duties of the office of the Associate Attorney General in an acting capacity. .
August 7, 2001 |
PRESIDENT'S AUTHORITY
TO REMOVE THE CHAIRMAN OF THE CONSUMER PRODUCT SAFETY COMMISSION
cpscchairmanremoval.htm |
The Chairman of
the Consumer Product Safety Commission serves at the pleasure
of the President and the President has the constitutional authority
to remove her for any reason.
Upon her removal, the Chairman will still continue to serve
as a Commissioner, and, under, 15 U.S.C. § 2053(d), the
Vice-Chairman of the Commission will assume the post of Chairman.
July 31, 2001 |
CONSTITUTIONALITY OF THE
ROHRABACHER AMENDMENT
72501op.pdf |
The Rohrabacher Amendment,
which imposes a funding restriction on the Justice Department's
ability to litigate matters relating to the Treaty of Peace with
Japan, violates established separation of powers principles and,
therefore, is unconstitutional.
July 25, 2001 |
WHETHER PHYSICIAN-ASSISTED SUICIDE SERVES
A "LEGITIMATE MEDICAL PURPOSE" UNDER DRUG ENFORCEMENT ADMINISTRATION
REGULATIONS
suicide-mem.pdf |
A physician's assisting in a patients
suicide even in a manner permitted by State law, is not a "legitimate
medical purpose" within the meaning of a Drug Enforcement Agency
regulation, and accordingly dispensing controlled substances for
this purpose violates the Controlled Substances Act, which the
DEA regulation implements.
June 27, 2001 |
DIRECT AID TO FAITH-BASED
ORGANIZATIONS UNDER CHARITABLE CHOICE PROVISIONS OF H.R. 7 THE COMMUNITY
SOLUTIONS ACT OF 2001
olc4brs97.htm |
Congress may, consistent
with the Establishment Clause, extend the religious exemptions
under title VII of the Civil Rights Act of 1964 to faith-based
organizations receiving direct payments of federal money under
the charitable choice provisions set forth in section 1994A of
H.R. 7, the Community Solutions Act of 2001.
The fact that a faith-based organization is organized as a
tax-exempt, nonprofit entity under section 501(c)(3) of the
Internal Revenue Code does not affect the organization’s
ability to invoke the religious exemptions under sections 702(a)
and 703(e)(2) of the Civil Rights Act of 1964.
June 25, 2001 |
INDIRECT AID TO FAITH-BASED
ORGANIZATIONS UNDER CHARITABLE CHOICE PROVISIONS OF H.R. 7, THE
COMMUNITY SOLUTIONS ACT
olc4brs95.htm |
The Establishment Clause
of the First Amendment does not necessitate that the charitable
choice provisions of H.R. 7, the Community Solutions Act, require
faith-based organizations receiving indirect payments of federal
money to segregate such funds into an account separate from the
organizations' general operating accounts.
June 22, 2001 |
AUTHORITY OF STATE OFFICIALS TO SHARE MOTOR VEHICLE RECORD INFORMATION WITH THE DEPARTMENT OF DEFENSE OR ITS CONTRACTORSM
motor-vehicle-record-info-052401.pdf |
The Drivers' Privacy Protection Act permits state Department of Motor Vehicles offices to release covered information in motor vehicle records to both the Department of Defense and private entities acting on DoD's behalf, provided that the records are used for a statutorily approved purpose of DoD, such as military recruitment.
May 24, 2001 |
EMOLUMENTS CLAUSE AND
WORLD BANK
smithsonianwb.htm |
An international organization
in which the United States participates, such as the International
Bank for Reconstruction and Development, is not a "foreign State" under
the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8.
May 24, 2001 |
OBLIGATION TO SELL GOVERNORS ISLAND
gov-island-op2.pdf |
The statutory requirement that the Administrator of General Services sell Governors Island at fair market value continues to apply notwithstanding the President's subsequent reservation of Governors Island as a national monument under the Antiquities Act.
April 24, 2001 |
REGULATION OF AN INMATE'S
ACCESS TO THE MEDIA
mediaaccessinmatesop.htm |
So long as the Bureau
of Prisons' decision to regulate an inmate's access to the media
is reasonably related to the legitimate penological interests
articulated in the applicable regulations, the Bureau of Prisons
may bar face-to-face interviews or videotaped interviews with
an inmate, or place other reasonable conditions and restrictions
on such interviews.
April 13, 2001 |
AUTHORITY OF THE PRESIDENT
TO REMOVE THE STAFF DIRECTOR OF THE CIVIL RIGHTS COMMISSION AND
APPOINT AN ACTING STAFF DIRECTOR
StaffDirector.htm |
The President has
the authority to remove the Staff Director of the United States
Commission on Civil Rights and to appoint an Acting Staff Director.
March 30, 2001
|
APPLICABILITY OF APA NOTICE
AND COMMENT PROCEDURES TO REVOCATION OF DELEGATION OF AUTHORITY
censusregrevocationop.htm |
The Secretary of
Commerce may revoke a delegation to the Director of the Census
without submitting the revocation to the notice and comment
procedures of the Administrative Procedure Act, notwithstanding
the fact that the Secretary voluntarily elected to follow those
procedures in issuing the delegation.
February14, 2001 |
APPLICABILITY OF THE ANTIDEFICIENCY ACT TO A VIOLATION OF A CONDITION OR INTERNAL CAP WITHIN AN APPROPRIATION
ada-jan-19.pdf
|
Any expenditure of funds in violation of a condition or internal cap in an appropriations act would generally constitute a violation of the Antideficiency Act.
January 19, 2001 |
GENERAL SERVICES ADMINISTRATION
USE OF GOVERNMENT FUNDS FOR ADVERTISING
gsafinal.htm |
Section 632 of the Treasury,
Postal Service, Executive Office of the President, and General
Government Appropriations Act of 2000, which prohibits the use
of appropriated funds for "publicity or propaganda purposes," does
not prohibit the General Services Administration from using appropriated
funds to support a reasonable and carefully-controlled advertising
campaign that serves the goal of informing other federal agencies
about the products and services it offers.
The principles set forth in some opinions of the Comptroller
General addressing limitations on advertising by federal agencies
beyond the "publicity or propaganda" rider would not prohibit
the GSA's advertisements to other agencies.
January 19, 2001 |
INVESTMENT OF FEDERAL
TRUST FUNDS FOR CHEYENNE RIVER AND LOWER BRULE SIOUX
siouxtrustop.htm |
Congress intended the
term "interest" in Title VI of the Water Resources Development
Act of 1999 to have its usual and customary meaning: the coupon
rate of the debt obligation.
The universe of "available obligations" under Title VI of
the Water Resources Development Act of 1999 includes obligations
of government corporations and government-sponsored entities
whose charter statutes provide that their obligations are lawful
investments for federal trust funds.
The fiduciary duty owed pursuant to a federal trust fund
is defined and limited by the terms of the statute creating
the trust.
January 19, 2001 |
NOAA CORPS ELIGIBILITY
FOR PROFESSIONAL LIABILITY INSURANCE COSTS REIMBURSEMENT
noaaopfin3.htm |
Members of the NOAA
Commissioned Corps may constitute qualified employees eligible
for professional liability insurance cost reimbursement under
federal statute if they otherwise satisfy the statutory definition
for "law enforcement officer," "supervisor," or "management official."
January 19, 2001 |
"COMMUNICATIONS" UNDER
18 U.S.C. § 207
207cfinal |
A former high-ranking
government official proposed establishing a consulting firm .
as a sole proprietorship, a partnership, or a corporation . in
which he would be one of a very few employees, or perhaps even
the sole employee. If, as hypothesized, the consulting firm prepares
a report on behalf of certain clients, which is submitted directly
to his former agency by the consulting firm or, with the former
official. s knowledge, by his client with the report bearing the
consulting firm. s name, and it is expected by the former official
that his identity as the author of the report may be commonly
known throughout the industry and at his former agency, he would
be making a communication prohibited by 18 U.S.C. § 207(c).
January 19, 2001 |
AUTHORITY TO SOLICIT GIFTS
giftsolicitationoge |
The express statutory
authority to accept gifts, contained in section 403(b)(1) of the
Office of Government Ethics Authorization Act of 1996, includes
the implied authority to solicit gifts.
January 19, 2001 |
EFFECT OF THE ALIENAGE
RESTRICTION IN THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY
RECONCILIATION ACT OF 1996 ON THE PROVISION OF STAFFORD ACT ASSISTANCE
IN THE FEDERATED STATES OF MICRONESIA AND THE REPUBLIC OF MARSHALL
ISLANDS
femaopinion011901final |
Congress did not
intend the alienage restriction set forth in title IV of the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 to apply extraterritorially. For this reason, the
provision of Stafford Act assistance on the Federated States
of Micronesia and the Republic of Marshall Islands by the Federal
Emergency Management Agency would not violate the PRWORA.
January 19, 2001 |
AUTHORITY OF THE OFFICE
OF GOVERNMENT ETHICS TO ISSUE TOUHY REGULATIONS
touhy7final |
OGE may not issue
Touhy regulations pursuant to 5 U.S.C. § 301 because OGE
is not an "executive department" within the meaning of § 301.
OGE may issue Touhy regulations, insofar as they concern the
production of agency records, pursuant to 44 U.S.C. § 3102
of the Federal Records Act.
OGE may issue regulations concerning the appearance of agency
employees as witnesses on official matters, pursuant to the
implied authority of OGE. s organic statute, 5 U.S.C. app. § 401.
January 18, 2001 |
REIMBURSING TRANSITION-RELATED
EXPENSES INCURRED BEFORE THE ADMINISTRATOR OF GENERAL SERVICES ASCERTAINED
WHO WERE THE APPARENT SUCCESSFUL CANDIDATES FOR THE OFFICE OF PRESIDENT
AND VICE PRESIDENT
reimbursementoftransitioncostsfinal |
The General Services
Administration can reimburse the Bush/Cheney transition for legitimate
transition-related expenses, as contemplated by the Presidential
Transition Act of 1963, that were incurred after the general election
on November 7, 2000 but prior to December 14, 2000, when the Administrator
of GSA ascertained that George W. Bush and Richard Cheney were
the apparent successful candidates for the office of President
and Vice President
January 17, 2001 |
WHETHER THE PRESIDENT MAY
HAVE ACCESS TO GRAND JURY MATERIAL IN THE COURSE OF EXERCISING HIS
DISCRETION TO GRANT PARDONS
grandjuryopinion.htm |
The President, in the
exercise of his pardon authority and responsibilities under Article
II, Section 2, Clause 1 of the United States Constitution, may
request that the pardon attorney include grand jury information
in any recommendation he may make in connection with a pardon
application if the President determines that his need for such
information in considering that application outweighs the confidentiality
interests embodied in Rule 6(e) of the Federal Rules of Criminal
Procedure.
The prohibition in Rule 6(e) cannot constitutionally be applied
to prevent the President from obtaining grand jury information already
in the possession of the Executive Branch when the President determines
that, for purposes of making a clemency decision, his need for that
information outweighs the confidentiality interests embodied in
Rule 6(e).
December 22, 2000 |
AUTHORIZATION FOR CONTINUING
HOSTILITIES IN KOSOVO
final |
Pub. L. No. 106-31,
The emergency supplemental appropriation for military operations
in Kosovo, constituted authorization for continuing hostilities
after the expiration at sixty days under section 5(b) of The War
Powers Resolution.
December 19, 2000 |
AUTHORITY OF THE GENERAL
SERVICES ADMINISTRATION TO PROVIDE ASSISTANCE TO TRANSITION TEAMS
OF TWO PRESIDENTIAL CANDIDATES
gsatransitionopinion |
The Presidential Transition
Act of 1963, with certain limited exceptions, authorizes the Administrator
of the General Services Administration to provide transition assistance
only for those services and facilities necessary to assist the
transition of the "President-elect" and the "Vice-President-elect," as
those terms are defined in the Act. Since there cannot be more
than one "President-elect" and one "Vice-President-elect" under
the Act, the Act does not authorize the Administrator to provide
transition assistance to the transition teams of more than one
presidential candidate.
November 28, 2000 |
PAYMENT OF ATTORNEY'S FEES
IN LITIGATION INVOLVING SUCCESSFUL CHALLENGES TO FEDERAL AGENCY
ACTION ARISING UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE CITIZEN-SUIT
PROVISIONS OF THE ENDANGERED SPECIES ACT
opn5.htm |
For purposes of settling
attorney's fees claims in a case arising under both section 10
of the Administrative Procedure Act and the citizen-suit provisions
of the Endangered Species Act, federal litigators, in allocating
hours and costs between the APA-Equal Access to Justice Act and
ESA claims, should subordinate EAJA section 2412(d) to ESA section
11(g)(4). Under this approach, hours and costs necessary to both
counts should be assigned to the ESA claim for attorney's fees
purposes, leaving only the hours and costs necessary only to the
APA claim to be paid under EAJA.
November 27, 2000 |
STATE TAXATION OF INCOME
OF CERTAIN NATIVE AMERICAN ARMED FORCES MEMBERS
sscrarevised
|
The
Soldiers' and Sailors' Civil Relief Act prohibits States from
taxing the military compensation of Native American armed forces
members who are residents or domiciliaries of tribal reservations
from which they are absent by reason of their military service.
November 22, 2000 |
USE OF AGENCY RESOURCES
TO SUPPORT PRESIDENTIAL TRANSITION
gsatransitionopinion1final |
We adhere to the conclusion
in our December 14, 1992 Memorandum that, under the Presidential
Transition Act of 1963, an executive agency or department may
provide office space, secretarial services, and other support
services to members of the transition team from agency appropriations
without reimbursement from the transition appropriation when the
provision of such space and support by the agency, rather than
by the transition team itself, would minimize disruption to the
agency's operations caused by the transfer of the leadership of
the agency.
Our conclusion in the 1992 Memorandum is not affected by the October
12, 2000 amendment to the Transition Act. Direct support services
and office space for those workshops and orientations that the amendment
authorizes should be provided by GSA out of the appropriation for
the transition, unless their provision by a particular agency would
minimize disruption of the agency's mission or operations.
November 22, 2000 |
DEFINITION OF CANDIDATE
UNDER 18 U.S.C. § 207(j)
candidatecommunicationop2 |
Individuals who otherwise
meet the specifications and limitations of § 207(j)(7)(A)
and (B) should be deemed to be communicating on behalf of a "candidate" through
the point at which that "candidate" assumes the office to which
he has been elected.
November 6, 2000 |
APPLICATION OF 18 U.S.C. § 207(d)
TO CERTAIN EMPLOYEES IN THE TREASURY DEPARTMENT
207d.htm |
The post-employment restrictions
of 18 U.S.C. § 207(d), which cover officials paid "at" the
rate for level I of the Executive Schedule, do not apply to officials
paid at a higher rate. Those officials are instead subject to
the restrictions of 18 U.S.C. § 207(c).
November 3, 2000 |
SECTION 235A OF THE IMMIGRATION
AND NATIONALITY ACT
ina235Anew |
Section 235A of the
Immigration and Nationality Act, requires the Attorney General
to establish and maintain certain preinspection stations provided
the foreign countries concerned have consented to the establishment
of such stations on their territory and provided that certain
other preconditions have been satisfied.
Section 235A does not oblige the Attorney General or any other Executive
Branch official to enter into diplomatic negotiations with foreign
countries in order to obtain their consent to the establishment
of preinspection stations on their territory, and it does not require
that preinspection stations be established before the preconditions
have been satisfied. Accordingly, section 235A does not unconstitutionally
infringes on the President's authority to conduct diplomatic relations.
October 23, 2000 |
SHARING TITLE III ELECTRONIC
SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY
titleIIIfinal |
Under Title III of the
Omnibus Crime Control and Safe Streets Act, law enforcement officials
may share with the intelligence community information obtained
through surveillance authorized by courts pursuant to Title III
where it is done to obtain assistance in preventing, investigating,
or prosecuting a crime.
Law enforcement may also share with the intelligence community information
obtained through surveillance authorized by the court pursuant to
Title III where the information is of overriding importance to national
security or foreign relations and disclosure is necessary for the
President to discharge his constitutional responsibilities over
these matters.
October 17, 2000 |
A SITTING PRESIDENT'S AMENABILITY
TO INDICTMENT AND CRIMINAL PROSECUTION
sitting_president |
The indictment or criminal
prosecution of a sitting President would unconstitutionally undermine
the capacity of the executive branch to perform its
constitutionally assigned functions.
October 16, 2000 |
ENFORCEABILITY OF 18 U.S.C. § 1302
18usc1302 |
Application of 18
U.S.C. § 1302 to prohibit the mailing of truthful advertising
concerning lawful gambling operations (except as to state-operated
lotteries in some circumstances) would violate the First Amendment.
Accordingly, the Department of Justice will refrain from enforcing
the statute with respect to such mailings.
September 25, 2000 |
APPLICABILITY OF GOVERNMENT
CORPORATION CONTROL ACT TO TO GAIN SHARING BENEFIT AGREEMENT
nasaopinionfinal.htm |
The Government Corporation
Control Act does not require the National Aeronautics and Space
Administration to obtain legislative authorization before entering
into a "gain sharing benefit" agreement with a private corporation
that grants NASA deferred cash payments based on an increase
in the value of the corporation's common stock.
September 18, 2000 |
ADMINISTRATION OF CORAL
REEF RESOURCES IN THE NORTHWEST HAWAIIAN ISLANDS
coralreef |
The President may use
his authority under the Antiquities Act to establish a national
monument in the territorial sea.
The President may use his authority under the Antiquities Act
to establish a national monument in the exclusive economic zone
to protect marine resources.
The President may not establish a national wildlife refuge in
the territorial sea or the exclusive economic zone using the implied
power to reserve public lands recognized in United States v. Midwest
Oil Co., 236 U.S. 459 (1915).
The authority to manage national monuments can, under certain
circumstances, be shared between the Department of the Interior
and other agencies, but the Fish and Wildlife Service must maintain
sole management authority over any national wildlife refuge area
within a monument. Regulations applicable to national monuments
trump inconsistent fishery management plans, but the establishment
of a national monument would not preclude the establishment of a
national marine sanctuary in the same area.
September 15, 2000 |
APPLICABILITY OF THE PRIVACY
ACT TO THE WHITE HOUSE
privacyact2 |
The Privacy Act does
not apply to the White House Office, which is also known as the
Office of the President.
September 8, 2000 |
APPLICATION OF 18 U.S.C. § 209
TO EMPLOYEE-INVENTORS WHO
RECEIVE OUTSIDE ROYALTY PAYMENTS
209revised3 |
A
federal government employee who obtains patent rights to an
invention made in the course of federal employment ordinarily
does not violate 18 U.S.C. § 209 by licensing the patent
rights to a private entity and receiving royalty payments
in exchange, because the payments are not "compensation for
[the employee. s] services" in the government.
September 7, 2000 |
CONSTITUTIONALITY OF 18
U.S.C. § 1120
esc52 |
Congress has clear constitutional
authority to proscribe killings committed by escaped federal inmates
serving life sentences, as provided in 18 U.S.C. § 1120,
where the killings facilitate the escape or the avoidance of recapture.
Congress's penological and custodial interests in ensuring the
incapacitation of life-sentenced federal inmates provide compelling
support for the constitutionality of 18 U.S.C. § 1120 even
when it is applied with respect to a post-escape killing that is
not related to the escape or subsequent efforts to avoid recapture.
August 31, 2000 |
WHETHER A FORMER PRESIDENT
MAY BE INDICTED AND TRIED FOR THE SAME OFFENSES FOR WHICH HE WAS
IMPEACHED BY THE HOUSE AND ACQUITTED BY THE SENATE
expresident |
The Constitution permits
a former President to be indicted and tried for the same offenses
for which he was impeached by the House of
Representatives and acquitted by the Senate.
August 18, 2000 |
DIVISION OF POWER AND
RESPONSIBILITIES BETWEEN THE CHAIRPERSON OF THE CHEMICAL SAFETY
AND HAZARD INVESTIGATION BOARD AND THE BOARD AS A WHOLE
chemsafetyboardopinionfinal |
Under
the Clean Air Act Amendments of 1990 and general principles
governing the operation of boards, the day-to-day administration
of Chemical Safety and Hazard Investigation Board matters
and execution of Board policies are the responsibilities of
the chairperson, subject to Board oversight, while substantive
policymaking and regulatory authority is vested in the Board
as a whole.
In disputes over the allocation of authority in specific instances,
the Board's decision controls, as long as it is not arbitrary
or unreasonable.
June 26, 2000 |
APPLICABILITY OF THE POST-EMPLOYMENT
RESTRICTIONS OF 18 U.S.C. § 207(c) TO ASSIGNEES UNDER
THE INTERGOVERNMENTAL PERSONNEL ACT
doe207 |
The
post-employment restrictions of 18 U.S.C. § 207(c) apply
to persons who are assigned from a university or a state or
local government to the Department of Energy under the Intergovernmental
Personnel Act and are compensated at or above the ES-5 level,
except for those who occupy positions ordinarily below the
ES-5 level and who receive salaries only from the detailing
employers, with the federal agency reimbursing those employers
for an amount less than an ES-5 salary.
June 26, 2000 |
EPA ASSESSMENT OF PENALTIES
AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND STORAGE
TANK REQUIREMENTS OF THE RESOURCE CONSERVATION AND RECOVERY ACT
ustop2 |
The Resource Conservation
and Recovery Act authorizes the Environmental Protection Agency
to assess penalties against federal agencies for violations
of RCA's underground storage tank provisions. EPA's underground
storage tank field citation procedures do not violate RCRA or
the Constitution.
June 14, 2000 |
AUTHORITY FOR MILITARY
POLICE TO ISSUE TRAFFIC CITATIONS TO MOTORISTS ON BOLLING AIR FORCE
BASE
bolling_final |
Military Police have
the authority to issue citations, enforceable in federal court,
to motorists who violate traffic laws on Bolling Air Force Base.
Congress has given the General Services Administration limited
authority over military installations for the narrow purpose
of issuing and enforcing the regulations related to motor vehicle
violations.
June 5, 2000 |
APPLICABILITY OF THE FEDERAL
VACANCIES REFORM ACT TO VACANCIES AT THE INTERNATIONAL MONETARY
FUND AND THE WORLD BANK
imfrevised |
The United States
Executive Director and the Alternate United States Director
at the International Monetary Fund and the World Bank are not
part of an Executive agency, and therefore vacancies in those
offices are not covered by the Federal Vacancies Reform Act.
May 11, 2000 |
CONTINUATION OF FEDERAL
PRISONER DETENTION EFFORTS IN THE FACE OF A USMS APPROPRIATION DEFICIENCY
usmsfinal |
It is doubtful that the "authorized
by law" exception to the Antideficiency Act would allow the United
States Marshals Service to continue to provide prisoner detention-related
functions during a deficiency in its FPD budget, but it is likely
that the "emergency" exceptions set forth in § 1342 and § 1515
of that statute would apply, in many, if not all, circumstances.
April 5, 2000 |
DATE OF APPOINTMENT FOR
PURPOSES OF CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
appointdate |
The appointment date
for appointment of an interim United States Attorney is established
by the Attorney General's intent, and here the form of order used
by the Attorney General expressly states her intent - that the
appointment is made upon satisfaction of the conditions that the
office is vacant and the designee takes the oath of office.
March 16, 2000 |
ENFORCEMENT OF INA EMPLOYER
SANCTIONS PROVISIONS AGAINST FEDERAL GOVERNMENT ENTITIES
ina274afinal |
Section 274A of the INA,
which establishes employer verification requirements and authorizes
the INS to take enforcement actions against employers for failure
to comply with those requirements, authorizes imposition of employer
sanctions against federal government entities.
The Immigration and Naturalization Service can exercise this
enforcement authority against persons and entities within all three
branches in a manner consistent with the Constitution.
March 15, 2000 |
STARTING DATE FOR CALCULATING
THE TERM OF AN INTERIM UNITED STATES ATTORNEY
termstart |
Under 28 U.S.C. § 546(c)(2),
the 120-day term of an interim United States Attorney appointed
by the Attorney General is calculated from the date of the appointment,
rather than the date on which the vacancy occurred.
March 10, 2000 |
LEGAL EFFECTIVENESS OF
A PRESIDENTIAL DIRECTIVE, AS COMPARED TO AN EXECUTIVE ORDER
predirective |
A presidential directive
has the same substantive legal effect as an executive order. It
is the substance of the presidential action that is determinative,
not the form of the document conveying that action. Both an executive
order and a presidential directive remain effective upon a change
in administration, unless otherwise specified in the document,
and both continue to be effective until subsequent presidential
action is taken.
January 29, 2000 |
AUTHORITY OF THE ADVISORY
BOARD FOR CUBA BROADCASTING TO ACT IN THE ABSENCE OF A PRESIDENTIALLY
DESIGNATED CHAIRPERSON
abcbopin |
The Advisory Board
for Cuba Broadcasting has the authority to meet and to conduct
business without a presidentially designated chairperson or
an acting chairperson. The Advisory Board for Cuba Broadcasting
does not have the authority to elect an acting chairperson.
January 4, 2000 |
APPLICABILITY OF 18 U.S.C. § 205(A)(2)
TO REPRESENTATION BEFORE NON-FEDERAL AGENCY
agencyfinal |
18 U.S.C. § 205(a)(2),
which bars a Federal employee from acting as an agent or attorney
before any "agency . . . in connection with any covered matter
in which the U.S. is a party or has a direct and substantial interest," applies
only to Federal agencies and does not apply to state agencies
or agencies of the District of Columbia.
January 3, 2000 |
PARTICIPATION BY PROCESSOR-OWNED
CATCHER VESSELS IN INSHORE COOPERATIVES UNDER THE AMERICAN FISHERIES
ACT OF 1998
pollockopinionfinal |
Section 210(b) of
the American Fisheries Act of 1998 permits catcher vessels owned
by shoreside processors to participate in AFA-authorized fishery
cooperatives.
December 10, 1999 |
TRIBAL RESTRICTIONS ON
SHARING OF INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
biodiv14 |
The Indian Civil Rights
Act, rather than the federal Constitution, limits the power of
an Indian tribe vis-a-vis its members. In interpreting provisions
of the ICRA, it is appropriate to look to precedents under analogous
constitutional provisions constraining federal and state action,
although particular facts about tribal structure and traditions
may be relevant to the analysis.
In some factual circumstances, a tribal ordinance prohibiting
members from sharing, with researchers or others outside the tribe,
information on possible commercial uses of biological resources
would raise concerns under the free speech provision of the ICRA.
The legality of such an ordinance would depend on a number of factorsincluding
how widely known the information is; whether those who hold the
information have a particular relationship of trust with the tribe;
the magnitude of the tribal interest underlying the tribe's effort
not to disclose the information; and whether the information can
be viewed as tribal property under an intellectual property regime
that is otherwise consistent with applicable law.
October 12, 1999 |
APPOINTMENT OF A SENATE-CONFIRMED
NOMINEE
marbury_ltr
|
The President is not
legally obligated to appoint a nominee to whom the Senate has
given its advice and consent. Until the President takes the final
public act necessary to complete the appointment, which in the
case of a Senate-confirmed official is customarily evidenced by
the President's signing the commission, the President retains
full discretion not to appoint the nominee.
October 12, 1999 |
PROPOSED CHANGE IN EEOC
REGULATIONS CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
eeocop |
The Equal Employment
Opportunity Commission proposal to amend its procedural regulations
to permit the Commission to issue a right-to-sue notice where
it has failed to make a reasonable cause determination within
180 days after the filing of a charge against a state or local
governmental entity is not permissible under Title VII of the
Civil Rights Act of 1964 or the Americans with Disabilities Act
of 1990.
October 7, 1999 |
APPLICABILITY OF EEOC PROPOSED
FINAL RULE TO THE DEPARTMENT OF VETERANS AFFAIRS
eeova |
The Veterans' Benefits
Act is not inconsistent with the proposed Equal Employment Opportunity
Commission final rule on hearings for federal employees' EEO complaints,
and therefore the Department of Veterans Affairs would be subject
to the rule to the same extent as other executive branch agencies.
September 28, 1999 |
ASSERTION OF EXECUTIVE
PRIVILEGE WITH RESPECT TO CLEMENCY DECISION
falnpotus |
Executive privilege
may properly be asserted in response to a congressional subpoena
seeking documents and testimony concerning the deliberations in
connection with President's decision to offer clemency to sixteen
individuals.
Executive privilege may properly be asserted in response to a congressional
subpoena seeking testimony by the Counsel to the President concerning
the performance of official duties on the basis that the Counsel
serves as an immediate adviser to the President and is therefore
immune from compelled congressional testimony.
September 16, 1999 |
APPLICABILITY OF 18 U.S.C. § 219
TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
219new |
Representative members
of federal advisory committees - i.e., members who are chosen
only to present the views of a private interest - are not "public
officials" covered by 18 U.S.C. § 219.
September 15, 1999 |
OFFICE OF PERSONNEL MANAGEMENT
PETITIONS FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT SYSTEMS
PROTECTION BOARD DECISIONS
frtibfinlast |
The Director of the Office
of Personnel Management is authorized to petition the Merit Systems
Protection Board to reconsider a non_precedential decision of
the Board if, and only if, the Director concludes that such decision
has a substantial impact on a civil service law, rule, regulation,
or policy directive.
September 13, 1999 |
RESTRICTIONS ON TRAVEL
BY VOICE OF AMERICA CORRESPONDENTS
voabal |
The Secretary of State
and Chiefs of Mission may restrict travel by Voice of America
correspondents in foreign countries in order to protect their
safety, but only under conditions ensuring, to the greatest extent
possible, the independence of VOA correspondents.
September 10, 1999 |
INTERNAL REVENUE SERVICE
REQUEST FOR DOCUMENTS IN DEFENSE DEPARTMENT POSSESSION
irs_opinion |
The Defense Contract
Audit Agency is not under a legal obligation, imposed by 26 U.S.C. § 7602(a),
to comply with an Internal Revenue Service request for documents
in its possession.
September 1, 1999 |
ELIGIBILITY OF A DUAL UNITED
STATES CITIZEN FOR A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
dualcitizen |
Section 606 of the Treasury
and General Government Appropriations Act of 1999 does not bar
the Department of Justice from employing, in a paid position,
a United States citizen who is also a citizen of another country.
August 26, 1999 |
THE INAPPLICABILITY
OF FEDERAL VACANCIES REFORM ACT'S REPORTING OBLIGATIONS FOR PAS
OFFICERS SERVING UNDER STATUTORY HOLDOVER PROVISIONS
damusholdover
|
There is no "vacancy" within
the meaning of the Federal Vacancies Reform Act of 1998 when
a presidentially appointed, Senate_confirmed officer continues
to hold a position under a statutory holdover provision and
therefore the holdover service is not reportable under the Act.
July 30, 1999 |
TESTIMONY CONCERNING THE
FEDERALISM ACCOUNTABILITY ACT
test714a |
Provisions of the proposed
Federalism Accountability Act that would alter the rules under
which courts determine whether Congress has preempted state law
by statute or authorized preemption by regulation could have far
reaching and unintended consequences and should only be enacted
if Congress determines that existing preemption doctrine has systematically
frustrated congressional intent and that statutory rules of construction
would produce better results.
Provisions of the bill that would instruct courts to resolve
ambiguities in federal law in favor f preserving the authority of
the states could frustrate the intentions of Congress and rulemaking
agencies and should not be enacted.
July 14, 1999 |
AUTHORITY OF THE UNITED
STATES TO ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE
BRANCH DISCRETION
consent.decrees2 |
Attorney
General may enter into settlements that would limit the future
exercise of executive branch discretion when that discretion
has been conferred upon the executive branch pursuant to statute
and there exists no independent statutory limitation on the
authority of the executive branch to so limit the future exercise
of that discretion.
The Attorney General's power to enter into settlements that would
limit the future exercise of discretion that has been conferred
upon the executive branch directly by the Constitution is constrained
by the very constitutional provisions that vest discretionary authority
in the President and therefore necessarily preclude the President
from subjecting the exercise of that discretion to the control of
the other party to a settlement or to judicial enforcement.
Article III of the Constitution does not preclude the executive
branch from entering into judicially enforceable discretion limiting
settlements as a general matter or bar federal courts from entering
consent decrees that limit executive branch discretion whenever
such decrees purport to provide broader relief than a court could
have awarded pursuant to an ordinary injunction. Article III limitations
may arise, however, when, for example, the terms of the governmental
promise are too amorphous to be susceptible to Article III federal
judicial enforcement.
Although there may be sound policy reasons to reaffirm Attorney
General Meese's 1986 policy regulating the use of discretion limiting
settlements, the concerns that led to its adoption do not, in general,
amount to legally binding limitations on the scope of the executive
branch's power to settle litigation in a manner that may limit the
future exercise of executive branch discretion.
June 15, 1999 |
TERM OF A MEMBER OF THE
MISSISSIPPI RIVER COMMISSION
mrc2 |
The term of a member
of the Mississippi River Commission is set by the statute governing
his office, and the term dictated by the statute applies even
though the language of his nomination, confirmation, and commission
calls for a different term.
May 27, 1999 |
ACCESSIBILITY GUIDELINES
AND FEDERAL LEASE RENEWALS
barrieropfin2 |
The Architectural and
Transportation Barriers Compliance Board may require, pursuant
to the Architectural Barriers Act of 1968, that buildings first
leased by federal agencies after 1976 be brought into compliance
with current accessibility standards when the agency negotiates
renewal of the lease.
May 26, 1999 |
USMS OBLIGATION TO TAKE
STEPS TO AVOID ANTICIPATED APPROPRIATIONS DEFICIENCY
draftop5 |
Under the apportionment
provisions of the Antideficiency Act, the United States Marshals
Service has an affirmative obligation to take steps to avoid a
deficiency in its Federal Prisoner Detention budget and any drastic
curtailment of its prisoner detention services by reducing current
expenditures and/or exploring alternative sources of funding that
would not depend upon the receipt of additional funds from Congress.
May 11, 1999 |
WHETHER AND UNDER WHAT
CIRCUMSTANCES GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS IS
A NONINFRINGING "FAIR USE" UNDER SECTION 107 OF THE COPYRIGHT ACT
OF 1976
pincusfinal430 |
Although government
reproduction of copyrighted material for governmental use would
in many contexts be a noninfringing fair use under section 107
of the Copyright Act of 1976, such government reproduction of
copyrighted material does not invariably qualify as a "fair use."
An agency that decides to negotiate a photocopying license should
seek to limit the scope of the licensing agreement so as not to
cover those photocopying practices that the agency, in good faith,
concludes are not infringing.
In order to determine whether a particular government photocopying
practice is a "fair use," the ultimate question to be answered is
whether permitting the government to continue to engage in the practice
without paying a licensing fee would stimulate productive thought
and public instruction, or yield other societal benefits, without
excessively diminishing the incentives for creativity.
April 30, 1999 |
APPLICABILITY OF TRADE
SECRETS ACT TO INTRAGOVERNMENTAL EXCHANGE OF REGULATORY INFORMATION
ofheoopfinsent |
The disclosure to certain
federal financial regulatory agencies of propriety information
of the Office of Federal Housing Enterprise Oversight obtained
from the finance institutions it regulates would be "authorized
by law" within the meaning of the Trade Secrets Act and therefore
would not violate that Act's prohibitions against unauthorized
agency disclosures of trade secrets or other confidential business
information.
April 5, 1999 |
GUIDANCE ON APPLICATION OF FEDERAL VACANCIES
REFORM ACT OF 1998
finalqa |
This
memorandum provides guidance on the application of the Federal
Vacancies Reform Act of 1998 to vacancies in Senate-confirmed
offices within the executive branch.
March 22, 1999 |
GULF WAR VETERANS HEALTH
STATUTES
gulfopfind2d3 |
Section 1604 of the Persian
Gulf War Veterans Act of 1998 is constitutionally invalid and
ineffective insofar as it purports to nullify prospectively certain
described legislation that might be enacted in the future.
Overlapping provisions of the Veterans Programs Enhancement Act
of 1998 and the Persian Gulf War Veterans Act of 1998, although
redundant and burdensome in some respects if both statutes are given
effect, are not inherently conflicting or mutually exclusive, and
therefore the provisions of both laws must be treated as valid and
effective.
March 12, 1999 |
ATTORNEY'S FEES FOR LEGAL
SERVICE PERFORMED PRIOR TO FEDERAL EMPLOYMENT
attyfee |
18 U.S.C. § 205
prohibits a Civil Division attorney from receiving attorney's
fees for work in a case against the United States performed prior
to federal employment when the right to payment depends on a finding
of liability and award against the United States that takes place
after the attorney's entry into federal employment.
February 11, 1999 |
APPLICABILITY OF 18 U.S.C. § 208
TO NATIONAL GAMBLING IMPACT STUDY COMMISSION
hewitt4 |
The National Gambling
Impact Study Commission is not an "independent" agency for purposes
of a criminal conflict of interest statute, 18 U.S.C. § 208.
January 26, 1999 |
APPLICATION OF 18 U.S.C. § 205
TO EMPLOYEES SERVING ON AN INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT
fbi205 |
A federal employee assigned
to a state or local government or other non-federal entity under
the Intergovernmental Personnel Act is not prohibited by 18 U.S.C. § 205
from representing the interest of the non-federal entity before
the federal government, including the employee's agency, if such
representational activity is affirmatively included with the scope
of the employee's assignment as determined by the federal agency
head.
January 11, 1999 |
APPLICABILITY OF 18 U.S.C. § 1721
TO COLLECTION OF FEE FOR STAMPED CARDS
stampedcardsfin |
The Postal Service
may charge a fee for stamped cards in addition to the face value
of the postage without violating 18 U.S.C. § 1721.
January 07, 1999 |
PROPOSED SETTLEMENT OF
DIAMOND v. DEPARTMENT OF HEALTH & HUMAN SERVICES
hhsopmop2 |
The Department of Health and Human
Services may lawfully enter into settlement providing that the
positions of specific employees will not be reclassified until
they vacate the positions if, in light of the facts of the case
and recognizing the inherent uncertainty of litigation, the agency
concludes that the court might find there was a cognizable danger
of recurrent sexual discrimination in the reclassifications in
violation of Title VII of the Civil Rights Act of 1964.
December 4, 1998 |
MISCELLANEOUS RECEIPTS
ACT EXCEPTION FOR VETERANS' HEALTH CARE RECOVERIES
blood |
The Veterans Reconciliation
Act of 1997 creates an exception to the Miscellaneous Receipts Act
to the extent that a recovery or collection under the Federal Medical
Car Recovery Act is based on medical care or services furnished
under chapter 17 of title 38, United States Code, and thus allows
the deposit of such a recovery or collection in the Department of
Veterans Affairs Medical Care Collections Fund.
December 3, 1998 |
PRESIDENTIAL DETERMINATION
ALLOWING FINANCIAL ASSISTANCE TO TIBET
tibet |
President Carter's 1980
determination that financial assistance to the People's Republic
of China would be in the national interest satisfies the requirements
of section 2(b)(2) of the Export_Import Bank Act of 1945 and thus
permits the Export_Import Bank to provide assistance to the region
of Tibet, its provincial government, and its residents without
any presidential action in addition to the prior determination
made with respect to China.
November 6, 1998 |
THE AUTHORITY OF THE BUREAU
OF THE CENSUS TO ADJUST POPULATION DATA FOR PURPOSES OTHER THAN
APPORTIONMENT
census.htm |
The Commerce Department
has the authority to use sampling and other recognized statistical
procedures in order to correct the unadjusted population figures
obtained in the decennial census for the year 2000, at least for
purposes other than providing the basis for apportioning seats
in the United States House of Representatives.
October 7, 1998 |
LACK OF AUTHORITY OF THE
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE TO REPRESENT PRIVATE
INDUSTRY IN PROCEEDINGS BEFORE THE UNITED STATES INTERNATIONAL TRADE
COMMISSION
ustr2ltr |
The Office of the
United States Trade Representative lacks authority under the
Trade Act of 1974 or its own organic statute to provide legal
representation to a private domestic industry in administrative
proceedings before the United States International Trade Commission.
September 24, 1998 |
WHETHER THE FIFTH AMENDMENT
PROHIBITS DISCLOSURE OF THE RESULTS OF A COURT-ORDERED MENTAL EXAMINATION
TO THE GOVERNMENT DURING THE GUILT PHASE OF A TRIAL
rule122a10 |
The Fifth Amendment
privilege against self-incrimination does not prohibit disclosure
to the government, during the guilt phase of a trial, of the
results of a court-ordered mental examination.
September 21, 1998 |
OFFICIAL SERVICE BY STATE
DEPARTMENT EMPLOYEES ON THE BOARDS OF AMERICAN-SPONSORED SCHOOLS
OVERSEAS
schoolsdos |
Official service
by State Department employees on the boards of American- sponsored
schools overseas is authorized by statute and does not violate
18 U.S.C. § 208.
September 11, 1998 |
AUTHORITY OF THE D.C. COUNCIL
UNDER THE HOME RULE ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS
homerule3opn |
The Council of the District
of Columbia has the authority, under section 602(a)(6) of the
Home Rule Act of 1973, to amend the Schedule of Heights of Buildings
Adjacent to Public Buildings as long as any amendment is within
the overall limitations set forth in the Building Height Act of
1910.
The D.C. Council's authority is not further restricted by the
limitations contained in the Schedule of Heights that was in effect
on December 24, 1973.
August 28, 1998 |
APPLICATION OF 18 U.S.C. § 208
TO SERVICE BY EXECUTIVE BRANCH EMPLOYEES ON BOARDS OF STANDARD-SETTING
ORGANIZATIONS
standardsorg |
Under 18 U.S.C. § 208,
a federal employee may serve as a member of the board of a private
voluntary standards organization to the extent necessary to
permit participation in his or her official capacity in the
organization's standard-setting activities.
August 24, 1998 |
CONSTRUCTION OF STATE REPORTING
REQUIREMENTS IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND WORK
OPPORTUNITY RECONCILIATION ACT
section404 |
The better interpretation
of the state reporting requirements in section 404 of the Personal
Responsibility and Work Opportunity Reconciliation Act is that
they apply only to those state agencies administering the particular
federally funded program in question, not to all state agencies
in a State that receives funds under the program.
August 18, 1998 |
APPLICABILITY OF 18 U.S.C. § 208
TO SERVICE BY FEDERAL OFFICIALS ON THE DISTRICT OF COLUMBIA DOWNTOWN
BUSINESS IMPROVEMENT DISTRICT CORPORATION BOARD OF DIRECTORS
gsa208fn |
A federal official
serving on the Board of Directors of the D.C. Downtown Business
Improvement District Corporation in his or her official capacity
is not a director of an outside organization within the meaning
of 18 U.S.C. § 208, and therefore the official's service
is not barred by § 208.
August 7, 1998 |
INELIGIBILITY OF NEW JERSEY
TRANSIT CORPORATION BOARD MEMBER FOR APPOINTMENT TO AMTRAK BOARD
OF DIRECTORS
amtrakrev1 |
A
public member of the Board of Directors of the New Jersey Transit
Corporation constitutes a representative of rail management under
Section 411(a) of the Amtrak Reform and Accountability Act of
1997 and is therefore ineligible for appointment to the Amtrak
Board of Directors.
July 30, 1998 |
ADMINISTRATIVE SETTLEMENT
OF DISPUTES CONCERNING DETERMINATIONS OF MINERAL ROYALTIES DUE THE
GOVERNMENT
mmsopd2 |
The Department of the
Interior is authorized, before the completion of an administrative
appeal, to settle disputed determinations of mineral royalties
due the Government exceeding $100,000 made by the Minerals Management
Service without obtaining the approval of the Justice Department
under the Federal Claims Collection Act.
July 28, 1998 |
CONSTITUTIONAL CONCERNS
RAISED BY THE COLLECTIONS OF INFORMATION ANTIPIRACY ACT
righto |
The proposed Collections
of Information Antipiracy Act raises difficult and novel constitutional
questions concerning Congress's power to restrict the dissemination
of information. Congress may not, pursuant to the Intellectual
Property Clause of the Constitution, create "sweat of the brow" protection
for compiled facts, at least insofar as such protection would
extend to what the Supreme Court has termed the nonoriginal portion
of such a compilation. Either or both the Intellectual Property
Clause and the First Amendment may impose limitations on the exercise
of congressional power under the Commerce Clause that would raise
serious constitutional concerns regarding the constitutionality
of the bill.
July 28, 1998 |
APPROPRIATE SOURCE FOR
PAYMENT OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR
CORP. AND RELATED CASES
winstarfinal |
The Federal Savings and Loan Insurance
Corporation Resolution Fund is the appropriate source of payment
for judgments against, and settlements by, the United States in
United States v. Winstar Corp. and similar cases arising from
the breach of certain agreements to which the Federal Savings
and Loan Insurance Corporation was a party.
July 22, 1998 |
WAIVER OF STATUTES OF LIMITATIONS
IN CONNECTION WITH CLAIMS AGAINST THE DEPARTMENT OF AGRICULTURE
solmem_612 |
The Supreme Court's decision in Irwin
v. Department of Veterans Affairs made no alteration in the fundamental
rules governing waivers of sovereign immunity in actions against
the United States. Irwin and the cases following it therefore
provide no support for the novel conclusion that the executive
branch has the discretion to dispense with a congressional mandated
statute of limitations in litigation or the compromise of claims.
Unless Congress provides to the contrary, adherence to the relevant
statute of limitations remains a strict and non-waivable condition
on suits against the federal government.
Enactment of legislation authorizing the payment of claims
barred by the statute of limitations under the Equal Credit
Opportunity Act is the necessary and constitutionally appropriate
means of satisfying such claims.
June 18, 1998 |
ACCESS TO CRIMINAL HISTORY
RECORDS BY NON-GOVERNMENTAL ENTITIES PERFORMING AUTHORIZED CRIMINAL
JUSTICE FUNCTIONS
chriltr004 |
Non-governmental entities
performing authorized criminal justice functions under contract
with government law enforcement agencies may be granted access
to criminal history records maintained under the authority of
28 U.S.C. § 534, subject to effective controls to guard against
unauthorized use and to insure effective oversight by the Department
of Justice.
Because Department of Justice regulations implementing 28 U.S.C. § 534
do not affirmatively authorize dissemination of criminal history
records to non_governmental entities under contract to assist law
enforcement agencies, those regulations should be amended to provide
such authorization before access is granted to those entities.
June 12, 1998 |
APPOINTMENT OF VICE CHAIR
OF FEDERAL RESERVE BOARD TO SERVE CONCURRENTLY AS CHAIR OF THE DISTRICT
OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY
reserve |
The Vice Chair of
the Federal Reserve Board may also serve as Chair of the District
of Columbia Financial Responsibility and Management Assistance
Authority without violating sections 205 or 208 of title 18.
Her dual service would also have to comply with the Federal
Reserve Act's "entire-time" requirement.
June 1, 1998 |
EFFECT OF POSSE COMITATUS
ACT ON PROPOSED DETAIL OF CIVILIAN EMPLOYEE TO THE NATIONAL INFRASTRUCTURE
PROTECTION CENTER
pca1fnl |
The proposed detail
of a civilian employee of Department of Defense to the National
Infrastructure Protection Center, a component of the Federal
Bureau of Investigation, is permissible under the Posse Comitatus
Act.
May 26, 1998 |
WHISTLEBLOWER PROTECTIONS
FOR CLASSIFIED DISCLOSURES
whistle_housetestimony_olc |
A Senate bill addressing the disclosure
to Congress of classified "whistleblower" information concerning
the intelligence community is unconstitutional because it would
deprive the President of the opportunity to determine how, when
and under what circumstances certain classified information should
be disclosed to Members of Congress.
A House bill addressing the same subject is constitutional
because it contains provisions that allow for the exercise of
the President's constitutional authority.
May 20, 1998 |
CONSTITUTIONALITY OF PROPOSED
LIMITATIONS ON TOBACCO INDUSTRY
tobacco_lr. |
Congress has the authority under the
Constitution to impose significant new regulations on tobacco
companies, including (1) restrictions on advertising and marketing
of tobacco products that are tailored to prevent access to advertising
by minors; (2) contingent monetary exactions, to be collected
from tobacco companies if tobacco use by minors fails to meet
prescribed targets; and (3) requirements that companies disclose
certain documents to the public and to federal regulators.
Consent by the tobacco companies to increased federal regulation,
which those companies might grant in order to qualify for federally
prescribed limits on liability, would permit Congress to establish
additional restrictions on tobacco advertising that it could
not impose directly.
May 13, 1998 |
LEGAL AUTHORITY OF EXECUTIVE
OFFICE OF THE PRESIDENT TO REQUIRE INDEPENDENT AGENCIES TO CONDUCT
BACKBROUND CHECKS OF NONCAREER SES PERSONNEL CANDIDATES
ses004 |
No office or agency
within the Executive Office of the President may require independent
agencies to conduct certain background checks of candidates
for noncareer Senior Executive Service positions.
April 30, 1998 |
COVERAGE ISSUES UNDER THE
INDIAN SELF-DETERMINATION ACT
isdafin |
The 1990 amendment to
the Indian Self-Determination and Education Asistance Act of 1975
covers only those torts for which the Federal Tort claims Act
waives the sovereign immunity of the United States.
The 1990 amendment does not authorize or otherwise address representation
of tribes or tribal employees who are sued in their individual capacities
for constitutional torts.
April 22, 1998 |
POSSIBLE BASES OF JURISDICTION
FOR THE DEPARTMENT OF JUSTICE TO INVESTIGATE MATTERS RELATING TO
THE ASSASSINATION OF MARTIN LUTHER KING, JR.
mlkjurfnl |
The Department of Justice
may conduct an investigation relating to the assassination of
Martin Luther King, Jr., to investigate the commission of federal
crimes for which the applicable statute of limitations has run,
in order to establish the facts of the crime, independent of whether
such facts may lead to a prosecution.
April 20, 1998 |
APPLICATION OF THE DOUBLE
JEOPARDY CLAUSE TO DISGORGEMENT ORDERS UNDER THE FEDERAL TRADE COMMISSION
ACT
disgorgement |
In a civil suit brought
by the Federal Trade Commission challenging unfair trade practices,
the Double Jeopardy Clause of the Fifth Amendment is not implicated
by a judgment requiring restitution and ordering that, in the
event restitution is impracticable, the defendant pay money to
the United States Treasury.
April 9, 1998 |
INTERPRETATION OF PHRASE "RECOMMENDATION
THAT FUNDS BE PUT TO BETTER USE" IN INSPECTOR GENERAL ACT
fbuop2 |
Although it is a close
question, the better interpretation of the Inspector General
Act is that Congress did not intend to limit the phrase "recommendation
that funds be put to better use" to only those audit recommendations
that achieve identifiable monetary savings.
March 20, 1998 |
THE VACANCIES ACT
vacan_tes |
The Vacancies Act is not the exclusive
authority for temporarily assigning the duties of a Senate-confirmed
office. Statutes vesting an agency's powers in the agency head
and allowing delegation to subordinate officials also may be used
to assign, on an interim basis, the duties of certain vacant Senate-confirmed
offices.
March 18, 1998 |
APPLICABILITY OF 18 U.S.C. § 431
TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER PROPOSED
MODIFIED TRANSACTION
Leaseop2 |
A modified version
of the proposed real estate transaction described in the February
17, 1998 opinion that gives the blind trusts no interest in
any government contracts is permissible under 18 U.S.C. § 431.
March 13, 1998 |
APPLICABILITY OF 18 U.S.C. §§ 431-433
TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER PROPOSED
TRANSACTION
Lease6 |
The interests of two
Members of Congress under a proposed real estate transaction
involving limited partnership interests in government leases
would fall within the prohibition of 18 U.S.C. § 431.
February 17, 1998 |
REIMBURSEMENT OF EXPENSES
UNDER 5 U.S.C. § 5503(a)
Recess |
5 U.S.C. § 5503(a)
does not prohibit individuals reappointed to the Board of Directors
of the Civil Liberties Public Education Fund during a congressional
recess from receiving reimbursement for travel, subsistence, and
other necessary expenses associated with performing their functions.
February 2, 1998 |
STATUTE OF LIMITATIONS
AND SETTLEMENT OF EQUAL CREDIT OPPORTUNITY ACT DISCRIMINATION CLAIMS
AGAINST THE
DEPARTMENT OF AGRICULTURE
usdafinl |
The Attorney General may not waive
the statute of limitations in the litigation or compromise of
pending claims against theUnited States.
Absent a specific provision to the contrary, a statute of
limitations on civil actions also should apply to administrative
settlements of claims arising under that statute pursuant to
31 U.S.C. § 3702.
31 U.S.C. § 3702 does not authorize USDA to pay compensatory
damages in an administrative settlement of an ECOA claim if
ECOA's two year statute of limitations has run.
Filing an administrative claim with USDA does not toll ECOA's
statute of limitations.
ECOA's statute of limitations is, in appropriate circumstances,
subject to the doctrines of equitable tolling and equitable
estoppel.
January 29, 1998 |
18 U.S.C. § 203 AND
CONTINGENT INTERESTS IN EXPENSES RECOVERABLE IN LITIGATION AGAINST
THE UNITED STATES
govservice98 |
18 U.S.C. § 203
does not prohibit a prospective government officer from maintaining
upon his entry into government service a contingent interest
in expenses recoverable in litigation involving the United States.
January 28, 1998 |
APPLICATION OF CONSUMER
CREDIT REPORTING REFORM ACT OF 1996 TO PRESIDENTIAL NOMINATION AND
APPOINTMENT PROCESS
fcra_dk |
Section 2403(b)(3) of
the Consumer Credit Reporting Reform Act of 1996, which requires
persons "using a consumer report for employment purposes" to notify
the consumer prior to taking any "adverse action" based on the
report, does not apply to the process used by the President in
considering individuals for nomination and appointment.
December 11, 1997 |
REAPPOINTMENT OF A RETIRED
JUDGE TO THE COURT OF FEDERAL CLAIMS
wilson |
The President may nominate and, subject
to the advice and consent of the Senate, appoint to the U.S. Court
of Federal Claims an individual who has previously retired from
that Court and who is receiving a retirement annuity as a senior
judge. Upon assumption of active judicial service, the judge must
forfeit the retirement annuity for the duration of the service.
December 3, 1997 |
APPLICABILITY OF 18 U.S.C. § 209
TO ACCEPTANCE BY FBI EMPLOYEES OF BENEFITS UNDER THE "MAKE A DREAM
COME TRUE" PROGRAM
209fbi |
The criminal prohibition
on supplementation of salary, 18 U.S.C. § 209, does not
prohibit Federal Bureau of Investigation employees from receiving
benefits under the Society of Former Special Agents of the FBI's "Make
a Dream Come True" Program
October 28, 1997 |
FUNDS AVAILABLE FOR PAYMENT
OF NATURAL RESOURCE DAMAGES UNDER THE OIL POLLUTION ACT OF 1990
opaop |
The President, acting through the
Department of Transportation, is authorized to use the Oil Spill
Liability Trust Fund to pay the claims of Natural Resource Trustees
for uncompensated natural resource damages in accordance with
section 1013 of the Oil Pollution Act of 1990, without the need
for further enactment of appropriations.
September 25, 1997 |
AUTHORITY TO INVESTIGATE COMPLAINTS
BY EMPLOYESS OF THE FEDERAL AVIATION ADMINISTRATION ALLEGING REPRISAL
FOR WHISTLEBLOWING
whistop |
The Office of Special
Counsel lacks authority to investigate complaints brought by Federal
Aviation Administration employees alleging reprisals against them
in response to whistleblowing activity.
September 23, 1997 |
APPLICATION OF EMOLUMENTS
CLAUSE TO REPRESENTATIVE MEMBERS OF ADVISORY COMMITTEES
emols.ac |
The Emoluments Clause
of the Constitution does not apply to . representative. members
of advisory committees, that is, members who are chosen to present
the views of private organizations and interests.
September 2, 1997 |
DISCLOSURE OF GRAND JURY
MATERIAL TO THE INTELLIGENCE COMMUNITY
gjicfinop1 |
Grand Jury material subject to the
requirements of Rule 6(e) of the Federal Rules of Criminal Procedure
may be disclosed to agencies in the Intelligence Community insofar
as necessary to assist government attorneys in performing their
duties to enforce federal criminal law, but may not be used by
the recipient agencies for other purposes.
In circumstances where there is a compelling necessity for
grand jury material to be made available to the President in
furtherance of his constitutional responsibilities over foreign
affairs and national defense and where the President has authorized
the provision of such material to the Intelligence Community,
we believe that a court should and would authorize such disclosure
outside the provisions of Rule 6(ee), on the basis of Article
II of the Constitution and separation of powers principles.
Indeed, in such compelling circumstances, a constitutionally
necessitated disclosure could properly be made b attorneys for
the Government even without prior court approval.
Section 104(a) of the National Security Act, as implemented
by Executive Order N. 12333, does not provide sound authority
for Justice Department disclosure of grand jury material related
to the national security to the Director of Central Intelligence
outside the provisions of Rule 6(e).
August 14, 1997 |
USE OF GENERAL AGENCY APPROPRIATIONS
TO PURCHASE EMPLOYEE BUSINESS CARDS
gsabc |
Nothing in the Omnibus Consolidated
Appropriations Act of 1997 expressly provides for, or prohibits,
the expenditure of appropriations of the General Services Administration
for the purchase of employee business cards.
In the absence of a contrary provision or limitation in its
appropriations act or other applicable legislation, GSA may
lawfully obligate a general or lump-sum appropriation for the
purchase of business cards for suitable mission-related use
by GSA employees.
Depending upon the purpose for which they are to be used,
GSA's purchases of business cards for its employees may be chargeable
either to its limited appropriation for "reception and recreation
expenses" or to its general appropriation.
August 11, 1997 |
APPLICABILITY OF SECTION
514 OF THE 1997 EDUCATION APPROPRIATIONS ACT TO POST-SECONDARY STUDENT
AID PROGRAMS
antirotcmem |
Section 514 of the Departments
of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act of 1997, which bars the provision
of appropriated funds, by contract or grant, to any institution
of higher education that denies campus access to military recruiters
or Reserve Officer Training Corps representatives, applies to
so-called "campus-based" student aid programs, which involve grants
to educational entities, but does not apply to direct aid programs,
which involve grants to students rather than to educational entities.
August 6, 1997 |
APPLICABILITY OF 3 U.S.C. § 112
TO DETAILEES SUPPORTING THE PRESIDENT'S INITIATIVE ON RACE
raceout2mem |
3 U.S.C. § 112
does not apply to the details of employees to support the President's
Initiative on Race.
August 1, 1997 |
REMOVAL OF HOLDOVER OFFICIALS
SERVING ON THE FEDERAL HOUSING BOARD AND THE RAILROAD RETIREMENT
BOARD
removal |
The President may
remove, without cause, members of the Federal Housing Board
and the Railroad Retirement Board who are serving in holdover
capacities and do not enjoy express tenure protection by statute.
August 1, 1997 |
AUTHORITY OF MILITARY EXCHANGES
TO LEASE GENERAL PURPOSE OFFICE SPACE
naf1 |
The Navy Exchange Service Command,
a non-appropriated fund instrumentality ("NAFI"), and similar
military exchange units constitute integral components of the
Department of Defense and their leasing authority, like that of
other DoD components, is subject to the provisions of Reorganization
Plan No. 18 of 1950, notwithstanding their status as NAFIs. Accordingly,
they are not authorized to lease general purpose urban office
space unless such authority is delegated to them by the General
Services Administration.
August 1, 1997 |
ADMINISTRATIVE ASSESSMENT
OF CIVIL PENALTIES AGAINST FEDERAL AGENCIES UNDER THE CLEAN AIR
ACT
cleanair.op |
The Clean Air Act authorizes the Environmental
Protection Agency administratively to assess civil penalties against
federal agencies for violations of the Act or its implementing
regulations. Separation of powers concerns do not bar EPA's exercise
of this authority because it can be exercised consistent with
the Constitution.
July 16, 1997 |
FUNDING OF STATE DEPARTMENT
SETTLEMENTS OF FOREIGN TORT CLAIMS
state3 |
Because 22 U.S.C. § 2669(f)
expressly authorizes the Secretary of State to pay settlements
of foreign tort claims from funds appropriated for the activities
included in the State Department Basic Authorities Act or from
funds "otherwise available," the payment of such settlements is "otherwise
provided for" within the meaning of 31 U.S.C. § 1304(a),
and therefore the federal Judgment Fund is not available for the
payment of such settlements.
June 18, 1997 |
APPLICABILITY OF 18 U.S.C. § 208
TO THE FEDERAL COMMUNICATIONS COMMISSION'S REPRESENTATIVE ON THE
BOARD OF DIRECTORS OF THE TELECOMMUNICATIONS DEVELOPMENT FUND
18usc208 |
Because the Telecommunications
Development Fund is a non-profit entity that is owned, funded,
and controlled by the federal government, it is not an
"organization" within the meaning of 18 U.S.C. § 208. Therefore,
the restrictions in § 208 do not apply to the service of
the Federal Communications
Commission's General Counsel on the Board of Directors of the
Fund.
June 12, 1997 |
NATIONAL ARCHIVES ACCESS
TO TAXPAYER INFORMATION
coll |
Neither the Secretary
of the Treasury nor the President can permit the National Archives
and Records Administration to inspect tax returns or return information,
pursuant to 44 U.S.C. § 2906 (a)(2), for purposes of appraising
the records.
May 28, 1997 |
SERVICE BY FEDERAL OFFICIALS
ON THE BOARD OF DIRECTORS OF THE BANK FOR INTERNATIONAL SETTLEMENTS
fed208 |
18 U.S.C. § 208(a) does not prohibit
the Chairman of the Federal Reserve Board and the President of
the Federal Reserve Bank of New York from serving in their official
capacities on the Board of Directors of the Bank for International
Settlements..
May 6, 1997 |
IMMUNITY OF SMITHSONIAN
INSTITUTION FROM STATE INSURANCE LAWS
smithsonop2 |
For purposes of the federal
government immunity arising from the Supremacy Clause of the Constitution,
the Smithsonian Institution is treated as an instrumentality of
the United States that is imbedded in the structure of the federal
government. The Smithsonian Institution is constitutionally immune
from state insurance laws and state licensing requirements that
would otherwise apply to its issuance of gift annuities.
April 25, 1997 |
THE APPLICABILITY OF EXECUTIVE
ORDER NO. 12976 TO THE FDIC
fdic_12_schultz |
Neither the FDIC's broad
discretion to determine the compensation of its employees nor
its status as an independent agency exempts the FDIC from the
requirements of Executive Order No. 12976.
April 22, 1997 |
PERSONAL SATISFACTION OF
IMMIGRATION AND NATIONALITY ACT OATH REQUIREMENT
oathrnd22 |
Section 504 of the Rehabilitation
Act does not require accommodation for persons unable to form
the mental intent necessary to take the naturalization oath of
allegiance prescribed by section 337 of the Immigration and Nationality
Act.
The oath requirement of section 337 may not be fulfilled by a
guardian or other legal proxy.
April 18, 1997 |
CALCULATING RATE OF PAY
OF DEPARTMENT OF JUSTICE EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION
UNDER INDEPENDENT COUNSEL ACT
icpay |
The term "rate of
pay" in the section of the Independent Counsel Act that indicates
which Department of Justice employees are "covered persons" does
not include "locality-based comparability payments" under 5
U.S.C. § 5304.
April 2, 1997 |
QUALIFICATION REQUIREMENT
FOR ALIENS UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY
RECONCILIATION ACT OF 1996
40Q.9(Schultz) |
The phrase "40 qualifying
quarters of coverage" in title IV of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 can fairly be
interpreted as incorporating the methodology under section 213
of the Social Security Act for calculating quarters of coverage,
but not also the strict definitions of wages, employment, and
self-employment income under other sections of the Social Security
Act.
March 27, 1997 |
PREEMPTIVE EFFECT OF THE
BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT
bressman |
The Bill Emerson Good Samaritan Food
Donation Act ("Act") preempts state "good samaritan" statutes
that provide less protection than the Act from civil and criminal
liability arising from food donated in good faith for distribution
to the needy.
March 10, 1997 |
REVOCATION OF CITIZENSHIP
ina340 |
The Immigration and Naturalization
Service has authority to institute either administrative or judicial
proceedings to denaturalize citizens whose criminal convictions
disqualified them from citizenship as a matter of law. Whether
the proceedings are administrative or judicial, the INS must establish
the allegations in its complaint by clear, unequivocal, and convincing
evidence.
March 3, 1997 |
AUTHORITY OF THE ATTORNEY
GENERAL TO GRANT DISCRETIONARY RELIEF FROM DEPORTATION UNDER SECTION
212(C) OF THE IMMIGRATION AND NATIONALITY ACT AS AMENDED BY THE
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
deportation_212c |
The amendment of section
212(c) of the Immigration and Nationality Act by section 440(d)
of the Antiterrorism and Effective Death Penalty Act of 1996 deprived
the Attorney General of the authority to grant discretionary relief
from deportation for aliens who committed certain crimes. Section
440(d) applies to section 212(c) applications for discretionary
relief pending on the effective date of AEDPA.
February 21, 1997 |
WAIVER OF OATH OF ALLEGIANCE
FOR CANDIDATES FOR NATURALIZATION
oathlltr3 |
The required oath
of allegiance as a condition of naturalization under section
337 of the Immigration and Nationality Act, 8 U.S.C. § 1448(a),
cannot be waived.
February 05, 1997 |
DELEGATION OF THE PRESIDENT'S
POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH LEADERSHIP
COUNCIL
nolc |
Draft amendments to 10
U.S.C. § 7902 empowering the President to delegate to the
head of a department his authority to appoint certain members
of the National Ocean Research Leadership Council would not violate
the Constitution's Appointments Clause.
January 29, 1997 |
PROPOSED AGENCY INTERPRETATION
OF "FEDERAL MEANS-TESTED PUBLIC BENEFITS" UNDER PERSONAL RESPONSIBILITY
AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996
meanstst10 |
The interpretation
of the phrase "federal means-tested public benefit" in the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
proffered by the Departments of Health and Human Services and
Housing and Urban Development - that it applies only to mandatory
(and not discretionary) spending programs - constitutes a permissible
and legally binding construction of the statute
January 14, 1997 |
BUREAU OF PRISONS DISCLOSURE
OF RECORDED INMATE TELEPHONE CONVERSATIONS
prisons |
The policy of the Criminal
Division requiring outside law enforcement officials to obtain
some form of legal process authorizing access to contents of inmate
telephone conversations is not mandated by the Constitution or
Title III of the Omnibus Crime Control and Safe Streets Act of
1968.
The practice of profiling specific groups of inmates for monitoring
raises concerns when it requires or causes the Bureau of Prisons
to alter its established monitoring procedures for purposes unrelated
to prison security or administration.
Inmates have a First Amendment right to some minimum level of
telephone access, subject to reasonable restrictions related to
prison security and administration. Under certain circumstances
they also may have a Sixth Amendment right to make telephone calls
to their attorneys.
January 14, 1997 |
APPLICATION OF THE INELIGIBILITY
CLAUSE
inelbr2 |
The Ineligibility Clause
of the Constitution would not bar the appointment of Representative
Bill Richardson to serve as United States Ambassador to the United
Nations or of Senator William Cohen to serve as Secretary of Defense.
December 31, 1996 |
ACCESS TO CLASSIFIED INFORMATION
nuccio.op |
This memorandum provides
an opinion on various legal questions posed by a panel appointed
by the Director of Central Intelligence to make a recommendation
on whether an official at the Department of State, Richard Nuccio,
should be granted access to Sensitive Compartmented Information.
November 26, 1996 |
VALIDITY OF CONGRESSIONAL-EXECUTIVE
AGREEMENTS THAT SUBSTANTIALLY MODIFY THE UNITED STATES' OBLIGATIONS
UNDER AN EXISTING TREATY
treaty |
It lies within Congress'
power to authorize the President substantially to modify the
United States' domestic and international legal obligations
under a prior treaty, including an arms control treaty, by making
an executive agreement with our treaty partners, without Senate
advice and consent.
November 25, 1996 |
AUTHORITY TO EXEMPT PROGRAMS
UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION
ACT OF 1996
caprenat.ag |
The Attorney General
may not exempt California's prenatal care program under § 401
of the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 because eligibility for, and the recipient's share
of the cost of benefits provided by, that program are conditioned
on the recipient's income.
November 25, 1996 |
MEMORANDUM FOR DAVID A.
MARTIN GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICE
pft90 |
Re: Rights of Aliens
Found in U.S. Internal Waters
This responds to your request for our opinion on several additional
questions related to the interdiction of undocumented aliens in
vessels before they have come ashore in the United States. (1) Your
request was submitted before Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (. Reform Act. ),
Pub. L. 104-208, Division C, 110 Stat. 3009 (1996), which substantially
amended the Immigration and Naturalization Act, ch. 477, 66 Stat.
163 (1952) (codified as amended at 8 U.S.C. §§ 1101-1503)
(. INA. ), and thereby altered the premises of your questions in
significant respects.
November 21, 1996 |
SERVICE ON THE BOARD OF
DIRECTORS OF NON-FEDERAL ENTITIES BY FEDERAL BUREAU OF INVESTIGATION
PERSONNEL IN THEIR OFFICIAL CAPACITIES
fbimem |
Section 208 of title
18 prohibits a government employee from serving on the board of
directors of an outside organization in his or her official capacity,
unless the service is authorized by statute or the employee obtains
either a release of fiduciary obligations by the organization
or a waiver of the requirements of section 208.
November 19, 1996 |
LEGAL EFFECTIVENESS OF
CONGRESSIONAL SUBPOENAS ISSUED AFTER AN ADJOURNMENT SINE DIE OF
CONGRESS
sine |
A congressional subpoena
issued after an adjournment sine die of Congress lacks any legal
force and effect and does not impose any legal obligation to comply
with the subpoena.
November 12, 1996 |
UN DRAFT DECLARATION ON
THE RIGHTS OF INDIGENOUS GROUPS
undec.let |
The Constitution would
not bar the federal government from establishing the kind of government-to-government
relationship it presently maintains with federally recognized
Indian tribes with other appropriately constituted indigenous
communities within the jurisdiction of the United States.
November 1, 1996 |
ELIGIBILITY OF A NONCITIZEN
DUAL NATIONAL FOR A PAID POSITION WITHIN THE DEPARTMENT OF JUSTICE
dual.bd |
The Department of Justice
must determine the . dominant, effective. nationality of a noncitizen
with dual nationality to determine that person's eligibility for
a paid position in the Department under section 606 of the Treasury,
Postal Service, and General Government Appropriations Act, 1997.
October 11, 1996 |
DEPARTMENT OF JUSTICE
PARTICIPATION ON THE INTERNAL REVENUE SERVICE UNDERCOVER REVIEW
COMMITTEE
undercovop |
Disclosure of tax return
information to a Department of Justice attorney serving on the
Undercover Review Committee of the Internal Revenue Service is
permissible under § 6103 of title 26 of the United States
Code as a limited referral for legal advice.
October 8, 1996 |
THE CONSTITUTIONALITY
OF COOPERATIVE INTERNATIONAL LAW ENFORCEMENT ACTIVITIES UNDER
THE EMOLUMENTS CLAUSE
retype5_13
|
The Emoluments Clause
of the Constitution does not bar a proposed cooperative maritime
counter-narcotics operation because the foreign naval personnel
assisting U.S. law enforcement personnel would not hold an . Office
of Profit or Trust. under the United States.
October 7, 1996 |
ASSERTION OF EXECUTIVE
PRIVILEGE FOR MEMORANDUM TO THE PRESIDENT CONCERNING EFFORTS TO
COMBAT DRUG TRAFFICKING
drugs.pot |
Executive privilege may
properly be asserted with respect to a memorandum to the President
from the Director of the Federal Bureau of Investigation and the
Administrator of the Drug Enforcement Administration containing
confidential advice and recommendations regarding efforts to combat
drug trafficking. The memorandum was subpoenaed by the Subcommittee
on National Security, International Affairs and Criminal Justice
of the Committee on Government Reform and Oversight of the House
of Representatives.
September 30, 1996 |
SUBMISSION OF AVIATION
INSURANCE PROGRAM CLAIMS TO BINDING ARBITRATION
arbitrls_faa |
In insurance policies
issued to air carriers pursuant to authority arising under chapter
443 of title 49, the Secretary of Transportation may include "50-50
clauses," which require that disputes between insurers over coverage
liability be submitted to binding arbitration unless the insurers
are able to negotiate a settlement in advance, if the use of such
clauses is an accepted practice in the aviation insurance business.
49 U.S.C. § 44309 does not preclude the use of binding arbitration
to resolve disputes regarding the liability of the United States
for losses insured under chapter 443.
50-50 clauses included in insurance policies issued under chapter
443 may include a provision for arbitration under state or foreign
law if it is a common practice of the commercial insurance business
to resolve liability disputes by reference to the decisional rules
of a non-federal sovereign.
September 27, 1996 |
ASSERTION OF EXECUTIVE
PRIVILEGE FOR DOCUMENTS CONCERNING CONDUCT OF FOREIGN AFFAIRS WITH
RESPECT TO HAITI
haitipot |
Executive privilege may
properly be asserted with respect to certain documents subpoenaed
by the Committee on International Relations of the House of Representatives
that concern the Administration's conduct of foreign affairs with
respect to Haiti.
September 20, 1996 |
PERMISSIBLE ACCOMMODATION
OF SACRED SITES
sacredsites |
The Establishment Clause
of the First Amendment does not bar either an Executive Order
that requires the accommodation of ceremonial use of sites on
federal land that are sacred to federally recognized Indian tribes
or a National Park Service regulation, designed to implement that
Order, that prohibits the issuance of commercial climbing licenses
at one such site during a period of religious significance.
September 18, 1996 |
18 U.S.C. § 207 AND
THE GOVERNMENT OF GUAM
guam |
18 U.S.C. § 207(a)(1)
prohibits a former Department of the Navy employee from representing
the Government of Guam before the Federal Maritime Commission
in a litigation in which he participated personally and substantially
while employed by the Navy.
September 12, 1996 |
APPLICABILITY TO EXECUTIVE
PRIVILEGE TO DELIBERATIONS REGARDING ASSERTION OF PRIVILEGE
hatchep2 |
Documents reflecting
and constituting deliberative communications within the White
House Counsel's Office and between that Office and the Department
of Justice relating to advice and recommendations to the President
on the assertion of executive privilege are themselves a proper
subject of a claim of executive privilege.
September 11, 1996 |
FOURTH AMENDMENT ISSUES
RAISED BY CHEMICAL WEAPONS INSPECTION REGIME
cwc_tes |
The inspection regime
to be created by the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction and by the proposed Chemical Weapons Implementation
Act, under which inspections of facilities that produce certain
chemicals would occur, absent exigent circumstances, only after
the United States Government obtained the consent of the owner
or operator of the facility, an administrative warrant, or a criminal
search warrant, is consistent with the Fourth Amendment to the
Constitution.
September 10, 1996 |
TRANSMISSION BY A WIRELESS
CARRIER OF INFORMATION REGARDING A CELLULAR PHONE USER'S PHYSICAL
LOCATION TO PUBLIC SAFETY ORGANIZATIONS
crimfcc |
Neither 47 U.S.C. § 1002(a)
nor the Fourth Amendment of the Constitution prohibits a wireless
carrier's transmission to local public safety organizations of
information regarding the physical location of a caller who uses
a cellular telephone to dial the 911 emergency line.
Although 18 U.S.C. § 2703 would apparently apply to the carrier's
transmission of such location information to public safety organizations,
the caller, by dialing 911, has impliedly consented to such disclosure,
thus permitting the federal government to require the carrier to
disclose such information without a warrant or court order.
September 10, 1996 |
IMMUNITY OF THE COUNCIL
TO THE PRESIDENT FROM COMPELLED CONGRESSIONAL TESTIMONY
execpric |
Executive privilege is
assertable in response to a congressional subpoena seeking the
testimony of the Counsel to the President because the Counsel
serves as one of the President's immediate advisers and is therefore
immune from compelled congressional testimony.
September 3, 1996 |
CONTRACTOR ACCESS TO INFORMATION
FROM INTERSTATE IDENTIFICATION INDEX
IIIop_d2 |
The Office of Personnel
Management and other agencies have authority to disclose criminal
history records information to private contractors performing
background investigations of government employees or prospective
employees.
OPM and other agencies also have authority to permit those contractors
to have controlled on-line access to criminal history records of
individuals subject to background investigations through the Interstate
Identification Index system.
August 15, 1996 |
NOMINATION OF SITTING
MEMBER OF CONGRESS TO BE AMBASSADOR TO VIETNAM
peterfinal |
The Ineligibility Clause
does not bar the nomination of Representative Pete Peterson to
be Ambassador of the Socialist Republic of Vietnam, provided that
the President does not make the determination to create the office
of ambassador to that government until after the expiration of
the term for which Representative Peterson was elected.
July 26, 1996 |
GOVERNMENT PRINTING OFFICE
INVOLVEMENT IN EXECUTIVE BRANCH PRINTING
gporecn |
The Office of Legal Counsel
continues to adhere to the analysis and conclusions in its opinion
dated May 31, 1996, regarding Government Printing Office involvement
in executive branch printing.
July 23, 1996 |
CONSTITUTIONALITY OF STATUTE
GOVERNING APPOINTMENT OF UNITED STATES TRADE REPRESENTATIVE
barsh2 |
19 U.S.C. § 2171(b)(3),
which prohibits the appointment as United States Trade Representative
of any person who has "represented, aided, or advised a foreign
entity" in a trade negotiation or dispute with the United States,
is an unconstitutional intrusion on the President's appointment
power and thus has no legal effect.
July 1, 1996 |
PRESIDENTIAL CERTIFICATION
REGARDING THE PROVISION OF DOCUMENTS TO THE HOUSE OF REPRESENTATIVES
UNDER THE MEXICAN DEBT DISCLOSURE ACT OF 1995
cdraftfin |
The Mexican Debt Disclosure
Act of 1995 requires that, before certain assistance is extended
to Mexico, the President must certify that he has provided the
House of Representatives with the documents described in House
Resolution 80. The President submitted a certification that indicated
that the executive branch had not provided the House documents
as to which it had informed the House that it would be inconsistent
with the public interest to provide the documents to the House.
The Act is best interpreted as incorporating an exception for
those documents as to which disclosure would not be in the public
interest. Therefore, the President's certification was a legally
sufficient formulation of the certification required by the Act.
June 28, 1996 |
CONSTITUTIONALITY OF LEGISLATIVE
PROVISION REGARDING ABM TREATY
abmjq |
There are serious doubts
as to the constitutionality of a provision of a bill stating that
the United States shall not be bound by any international agreement
entered into by the President that would substantively modify
the Antiballistic Missile Treaty with the Soviet Union, including
any agreement that would add other countries as signatories or
convert that bilateral treaty into a multilateral treaty, unless
the agreement is entered pursuant to the President's treaty making
power. The provision intrudes on the Executive's exclusive constitutional
powers to interpret and execute treaties and to recognize foreign
States.
June 26, 1996 |
FBI AUTHORITY TO INVESTIGATE
VIOLATIONS OF SUBTITLE E OF TITLE 26 OR 18 U.S.C. SECTIONS 921-930
fbijur_002 |
The Federal Bureau of
Investigation has authority to participate in investigations of
violations of Subtitle E of Title 26 and 18 U.S.C. §§ 921-930
but may not supplant the primacy of the Department of the Treasury
over investigations of such violations, unless the FBI has reason
to believe that the investigation concerns a crime of terrorism
over which a statute or Presidential Decision Directive 39 has
given the FBI primary responsibility.
June 21, 1996 |
SEVERABILITY AND DURATION
OF APPROPRIATIONS RIDER CONCERNING FROZEN POULTRY REGULATIONS
chadusda |
A provision of the Department
of Agriculture appropriations legislation for Fiscal Year 1996,
providing that a regulation otherwise rendered inoperative could
be put into effect if a revised version of the regulation submitted
by the Secretary of Agriculture was received and approved by two
committees of Congress, violates the constitutional separation
of powers by purporting to provide for the legislative enactment
of a regulation without bicameral passage and presentment, as
required by Article I of the Constitution.
This unconstitutional provision is severable from the remainder
of the section and statute in which it is contained, so that the
section's prohibition against the use of appropriated funds to implement
the subject regulation, and its provision that the regulation may
not take effect absent authorizing legislation, are both constitutionally
enforceable.
All provisions of the section, including its prohibition against
the regulation taking effect absent future authorizing legislation,
are limited in duration to the 1996 Fiscal Year.
June 4, 1996 |
INVOLVEMENT OF THE GOVERNMENT
PRINTING OFFICE IN EXECUTIVE BRANCH PRINTING AND DUPLICATING
printer |
Section 207(a) of the
Legislative Branch Appropriations Act, 1993, as amended, which
requires all executive branch printing to be procured by or through
the Government Printing Office, vests executive functions in an
entity subject to congressional control and is therefore unconstitutional
under the doctrine of separation of powers.
Agency contracting officers who act consistently with this opinion,
and in derogation of the contrary view of the Comptroller General,
would face little or no risk of civil, criminal, or administrative
liability.
May 31, 1996 |
ASSERTION OF EXECUTIVE
PRIVILEGE REGARDING WHITE HOUSE COUNSEL'S OFFICE DOCUMENTS
whto.pot |
Executive privilege may
properly be asserted with respect to certain White House Counsel's
Office documents that have been subpoenaed by the Committee on
Government Reform and Oversight of the House of Representatives
in connection with the Committee's investigation of the White
House Travel Office matter.
May 23, 1996 |
RELOCATION DEADLINE PROVISION
CONTAINED IN THE 1996 OMNIBUS CONSOLIDATED RESCISSIONS AND APPROPRIATIONS
ACT
broadcub |
Requirement in the Appropriations
Act that the United States Information Agency relocate the Office
of Cuba Broadcasting to south Florida by a date almost a month
before the Act was signed into law constitutes a technical or
typographical error and USIA is entitled to obligate the funds
appropriated in the provision, even though it is unable to turn
back the clock and comply with the provision's literal deadline.
May 21, 1996 |
USE OF FEDERAL EMPLOYEES
FOR OLYMPIC SECURITY
olympics_op2 |
Where the teams and delegations
visiting the United States for the Olympic Games in Atlanta have
been designated . official guests. of the United States by the
Secretary of State pursuant to §§ 112, 1116 and 1201
of the Criminal Code, those provisions authorize federal agencies
to provide their employees to assist in security operations at
the Atlanta Olympics upon request of the Attorney General.
May 17, 1996 |
MEMORANDUM FOR CONRAD
HARPER LEGAL ADVISER DEPARTMENT OF STATE
viet |
RE: Section 609 of the
FY 1996 Omnibus Appropriations Act
May 15, 1996 |
PLACING OF UNITED STATES
ARMED FORCES UNDER UNITED NATIONS OPERATIONAL OR TACTICAL CONTROL
hr3308 |
Proposed funding restriction
generally prohibiting the President from placing United States
Armed Forces under the operational or tactical control of the
United Nations in U.N. peacekeeping operations would unconstitutionally
constrain the President's exercise of his authority as Commander-in-Chief
and unconstitutionally undermine the President's constitutional
authority with respect to the conduct of diplomacy. Granting the
President the authority to waive the prohibition if he provides
a certification and report to Congress would not remove the funding
restriction's constitutional defect, because Congress cannot burden
or infringe the President's exercise of a core constitutional
power by attaching conditions precedent to the exercise of that
power.
May 8, 1996 |
PROTECTIVE ASSERTION OF
EXECUTIVE PRIVILEGE REGARDING WHITE HOUSE COUNSEL'S OFFICE DOCUMENTS
whto.ag |
Executive privilege may
properly be asserted with respect to the entire set of White House
Counsel's Office documents currently being withheld from the Committee
on Government Reform and Oversight of the House of Representatives,
pending a final Presidential decision on the matter. This would
be a protective assertion of executive privilege designed to ensure
the President's ability to make a final decision, after consultation
with the Attorney General, as to which specific documents are
deserving of a conclusive claim of executive privilege.
May 8, 1996 |
I. THE CONSTITUTIONAL
SEPARATION OF POWERS BETWEEN THE PRESIDENT AND CONGRESS
delly |
This memorandum provides
an overview of the constitutional issues that periodically arise
concerning the relationship between the executive and legislative
branches of the federal government. Although that relationship
is shaped in part by the policy and political concerns of the
President and Congress of the day, the political interaction between
the President and Congress takes place within an enduring constitutional
framework that confers powers and responsibilities on both elected
branches.
In this memorandum we discuss the general principles underlying
separation of powers analysis, and we address certain specific questions
that have arisen in the past. Any set of examples is necessarily
illustrative rather than exhaustive, however, and the Office of
Legal Counsel is always available to assist in reviewing legislation
or other congressional action for potential separation of powers
issues.*
May 7, 1996 |
AUTHORITY OF THE CHEMICAL
SAFETY AND HAZARD INVESTIGATION BOARD TO DELEGATE POWER
csb
|
Although the Chemical
Safety and Hazard Investigation Board may not name an "Acting
Chairperson," it may delegate administrative and executive authority
to a single member while the position of chairperson is vacant.
April 19, 2002 |
THE ADVISORY COMMITTEE
ON INTERNATIONAL ECONOMIC POLICY
emol
|
The Advisory Committee
on International Economic Policy is not subject to the Emoluments
Clause.
April 17, 1996 |
ELIGIBILITY OF CITIZENS
OF FREELY ASSOCIATED STATES FOR HUD FINANCIAL ASSISTANCE
diaz.2.ltr |
The Secretary of Housing
and Urban Development may not make financial assistance, including
assistance under section 8 of the United States Housing Act of
1937, available for the benefit of citizens of the Freely Associated
States (Federated States of Micronesia, Marshall Islands, Republic
of Palau) who have entered the Territory of Guam and the Commonwealth
of the Northern Mariana Islands as non-immigrants pursuant to
section 141 of the Compact of Free Association.
March 7, 1996 |
LEGAL AUTHORITY TO APPROVE
CHANGES IN USE OF PROPERTY UNDER SECTION 414 OF THE HOUSING AND
URBAN DEVELOPMENT ACT OF 1969
hud_gsaop |
The proposed sale of
property at its fair market value in order to raise funds to build
low and moderate income housing on different property constitutes
a change in the use of property under section 414 of the Housing
and Urban Development Act of 1969 and the terms of the deed of
the 1974 sale of the property.
The Department of Housing and Urban Development and the General
Services Administration could approve the proposed sale of property
to a public body without violating section 414.
March 5, 1996 |
MEMORANDUM FOR ERIC S.
BENDERSON ASSOCIATE GENERAL COUNSEL U.S. SMALL BUSINESS ADMINISTRATION
sba8 |
Re: Constitutionality
of 13 C.F.R. § 124.103 Establishing Citizenship Requirement
for Participation in 8(a) Program.
March 4, 1996 |
LEGALITY OF GOVERNMENT
HONORARIA BAN FOLLOWING U.S. v. NATIONAL TREASURY EMPLOYEES UNION
nteu.alt |
No portion of § 501(b)
of the Ethics in Government Act of 1978, which imposes an honoraria
ban on all government employees, survives the Supreme Court's
decision in United States v. National Treasury Employees Union.
February 26, 1996 |
BRADY ACT IMPLEMENTATION
ISSUES
brady2mem |
The Attorney General
may impose an expiration date on the validity of a check, conducted
pursuant to the Brady Act by the national instant criminal background
check system ("NICS"), that authorizes the transfer of a firearm
Information from NICS may be disclosed to law enforcement agencies
to further their criminal investigations, but disclosures may
not be made for the purpose of establishing firearms registries
and non_consensual disclosures may not be made for employment
and licensing purposes. The Privacy Act places no restrictions
on the Attorney General's express authority under the Brady Act
to request information from federal agencies identifying individuals
who fall within the categories of persons prohibited from possessing
firearms
February 13, 1996 |
TRANSACTIONS BETWEEN THE
FEDERAL FINANCING BANK AND THE DEPARTMENT OF THE TREASURY
ffbsale6 |
This opinion reviews
a possible Federal Financing Bank sale of loan assets to the Civil
Service Retirement and Disability Fund and other possible related
transactions between the FFB and the Department of the Treasury,
and concludes that the contemplated transactions would be permissible
under existing law.
February 13, 1996 |
ALTERNATIVES FOR THE IMPOSITION
OF CONDITION ON THE CERTIFICATION OF DRUG TRANSIT AND PRODUCING
COUNTRIES
narccertmem |
The President may impose
certain conditions upon a drug producing or transit country seeking
certification under section 490(b) of the Foreign Assistance Act
of 1961. If he chooses to certify a country under section 490(b)(1)(B),
he can withhold funds from the country to encourage compliance
with a set of specified conditions. Alternatively, the President
can determine not to certify a country in his annual certification
report but inform the country that it might be recertified outside
the annual cycle if it meets certain conditions. The first alternative
offers greater flexibility to the President as, under the latter
approach, the President is constrained in the exercise of his
discretion by specific statutory requirements and his determination
is subject to congressional review.
February 12, 1996 |
AUTHORITY OF THE PRESIDENT
TO RESTRICT MUNITIONS IMPORTS UNDER THE ARMS EXPORT CONTROL ACT
arms02 |
Restricting the import
of certain classes of Russian firearms and ammunition that are
deemed an unacceptable risk to public safety is a legitimate use
of the President's authority under the Arms Export Control Act
to restrict the import of munitions in furtherance of United States
foreign policy.
February 9, 1996 |
ASSISTANCE BY STATE AND
LOCAL POLICE IN APPREHENDING ILLEGAL ALIENS
immstopo1a |
Subject to the provisions
of state law, state and local police may constitutionally detain
or arrest aliens for violating the criminal provisions of the
Immigration and Naturalization Act.
State and local police lack recognized legal authority to stop
and detain an alien solely on suspicion of civil deportability,
as opposed to a criminal violation of the immigration laws or other
laws.
State and local police may detain aliens reasonably suspected
of a criminal violation of the immigration laws for periods of as
long as 45 to 60 minutes when detentions of that length are necessary
to allow for the arrival of Border Patrol agents who are needed
for the informed federal disposition of the suspected violations.
February 5, 1996 |
IMMIGRATION EMERGENCY
FUND
iefalt.twr |
The $20 million in the
Immigration Emergency Fund for the reimbursement of states and
localities for certain immigration-related assistance is available
on an annual basis.
January 26, 1996 |
WHETHER THE DISTRICT OF
COLUMBIA'S CLEAN AIR COMPLIANCE FEE MAY BE COLLECTED FROM THE FEDERAL
GOVERNMENT
parking.op1 |
The District of Columbia's
Clean Air Compliance Fee is a tax and may not be imposed on the
federal government, because the D.C. Council lacks authority to
impose taxes on the property of the United States.
January 23, 1996 |
APPLICATION OF 28 U.S.C. § 458
TO PRESIDENTIAL APPOINTMENTS OF FEDERAL JUDGES
willy.fin.32 |
Section 458 of title
28 does not apply to executive branche's ability to obligate appropriated
funds conditional upon presidential appointments of judges to
the federal judiciary.
December 18, 1995 |
LEGISLATION DENYING CITIZENSHIP
AT BIRTH TO CERTAIN CHILDREN BORN IN THE UNITED STATES
deny.tes.31 |
A bill that would deny
citizenship to children born in the United States to certain classes
of alien parents is unconstitutional on its face.
A constitutional amendment to restrict birthright citizenship, although
not technically unlawful, would flatly contradict the Nation's constitutional
history and constitutional traditions.
December 13, 1995 |
EFFECT OF APPROPRIATIONS
FOR OTHER AGENCIES AND BRANCHES ON THE AUTHORITY TO CONTINUE DEPARTMENT
OF JUSTICE FUNCTIONS DURING THE LAPSE IN THE DEPARTMENT'S APPROPRIATIONS
lapsed_upd. |
Where Congress has provided appropriations
for the legislative branch, the Department of Justice may continue
to provide testimony at hearings and perform other services related
to funded functions of the legislative branch during a lapse in
funding for the Department, if the participation of the Department
is necessary for the hearing or other funded function to be effective.
Similarly, those functions of the Department of Justice that
are necessary to the effective execution of functions by an
agency or department of government that has current fiscal year
appropriations, such that a suspension of the Department's functions
during a lapse in its own appropriations would prevent or significantly
damage the execution of those funded functions, may continue
during the Department's funding lapse.
December 13, 1995 |
PROPOSED DEPLOYMENT OF
UNITED STATES ARMED FORCES INTO BOSNIA
bosnia2 |
The President, acting
without specific statutory authorization, may lawfully introduce
United States ground troops into Bosnia in order to assist North
Atlantic Treaty Organization to ensure compliance with a peace
agreement.
November 30, 1995 |
PRESIDENTIAL DISCRETION
TO DELAY MAKING DETERMINATIONS UNDER THE CHEMICAL AND BIOLOGICAL
WEAPONS CONTROL AND WARFARE ELIMINATION ACT OF 1991
cbw_b10 |
The President is required to make
a determination that would trigger sanctions under the Chemical
and Biological Weapons Control and Warfare Elimination Act of
1991 if he is presented with sufficient evidence to compel the
determination.
The President may delay making a determination that would
trigger sanctions under the Act when the delay is necessary
to protect intelligence sources or methods used in counter-proliferation
activities.
The President may delay making a determination that would
trigger sanctions under the Act when no reasonable alternative
means exists to protect the life of an intelligence source.
November 16, 1995 |
PARTICIPATION IN CONGRESSIONAL
HEARINGS DURING AN APPROPRIATIONS LAPSE
lapsed.hg8 |
Under the Antideficiency Act, an officer
or employee of the Department of Justice may participate in a
congressional hearing during a lapse in appropriations for the
Department if he or she is a Senate-confirmed officer, if appropriated
funds are available for his or her participation, if he or she
is subpoenaed, or if there exists other express or necessarily
implied authorization to participate in the hearing.
November 16, 1995 |
THE SECRETARY OF THE TREASURY'S
AUTHORITY WITH RESPECT TO THE CIVIL SERVICE RETIREMENT AND DISABILITY
FUND
civser11.rev |
5 U.S.C. § 8348 empowers the
Secretary of the Treasury to suspend the investment of additional
contributions to the Civil Service Retirement and Disability Fund
and redeem prior to maturity CSRDF investment assets in order
to avoid exceeding the statutory debt limit.
In exercising his CSRDF redemption authority, the Secretary
of the Treasury may, during a "debt issuance suspension period," redeem
CSRDF investment assets based on the total amount of civil service
retirement and disability benefits authorized to be paid during
the period.
The Secretary of the Treasury has discretion to designate
the length of a debt issuance suspension period based on factors,
identified by the Secretary, that are reasonably relevant to
his determination.
The suspension during a debt limit crisis of CSRDF investment
and the redemption of CSRDF investment assets would not cause
a violation of the public debt limit.
November 10, 1995 |
AUTHORIZATION OF IMMIGRATION
EMERGENCY FUND REIMBURSEMENTS
ief |
The continuing resolution enacted
on September 30, 1995, does not limit or suspend the authority
that would otherwise exist for the obligation or expenditure of
an Immigration Emergency Fund reimbursement pursuant to § 404(b)
of the Immigration and Nationality Act.
The Immigration Emergency Fund may be used to reimburse the
State of Florida for its increase in social service and health
expenses deriving from the influx of Cuban immigrants resulting
from a Presidential decision.
November 8, 1995 |
REASSIGNMENT OF ASSISTANT
SECRETARY OF LABOR WITHOUT SENATE RECONFIRMATION
dol.app.25 |
Where the Secretary of Labor exercises
statutory power to reassign the duties of a lawfully confirmed
Assistant Secretary of Labor whose duties are not otherwise assigned
by statute, reconfirmation of the Assistant Secretary is not legally
required.
November 2, 1995 |
CONSTITUTIONALITY OF AWARDING
HISTORIC PRESERVATION GRANTS TO RELIGIOUS PROPERTIES
doi.24 |
A court applying current precedent
is most likely to conclude that the direct award of historic preservation
grants to churches and other pervasivley sectarian institutions
violates the Establishment Clause of the Constitution.
October 31, 1995 |
THE FOOD AND DRUG ADMINISTRATION'S
DISCRETION TO APPROVE METHODS OF DETECTION AND TO DEFINE THE TERM "NO
RESIDUE" PURSUANT TO THE FEDERAL FOOD, DRUG, AND COSMETIC ACT
desfin2rev |
The Food and Drug Administration has
the discretionary authority under the DES proviso to the Delaney
Clause of the Federal Food, Drug, and Cosmetic Act to prohibit
the use of an additive in animal feed if the FDA concludes that
there is no method that can "reliably measure and confirm" whether
the additive contains residues of carcinogenic concern at or above
the "no residue" level.
Where the FDA has already approved a method for detecting the
presence of residues of carcinogenic concern, the DES proviso
does not require the FDA to revise its regulations to adopt the "best
available" such method.
The FDA lacks the discretion to determine that an edible tissue
contains "no residue" when a method of detection reveals the presence
of residues of carcinogenic concern that is below the "no significant
risk" level.
October 13, 1995 |
SCOPE OF TREASURY DEPARTMENT
PURCHASE RIGHTS WITH RESPECT TO FINANCING INITIATIVES OF THE U.S.
POSTAL SERVICE
usps2.op |
If the Treasury Department
has declared its election to purchase a proposed U.S. Postal Service
bond issue pursuant to 39 U.S.C. § 2006(a) prior to the proposed
date of issuance and is pursuing good-faith negotiations towards
such purchase as of such date, the USPS is not free to proceed
with issuance of the bonds to other purchasers solely because
Treasury has not completed purchase of the bonds within a 15-day
period following USPS' initial notice of the proposed issue.
If, in the above circumstances, Treasury and the USPS are
unable to negotiate mutually agreeable terms within a commercially
reasonable period of time following USPS' proposed date for
the issuance of its bonds, then the USPS may proceed with the
issuance of such bonds to other purchasers.
Treasury is not authorized to dictate or control the terms
of the USPS offering, but it must be afforded a reasonable opportunity
to reach mutually agreeable terms with the USPS when the original
terms proposed by the USPS are unacceptable. That reasonable
opportunity is not rigidly limited by the 15-day period for
declaring an election to purchase.
October 10, 1995 |
AUTHORITY TO EMPLOY THE
SERVICES OF WHITE HOUSE OFFICE EMPLOYEES DURING AN APPROPRIATIONS
LAPSE
lapsed.wh.22 |
The Antideficiency Act
permits the White House Office to employ personnel during an appropriations
lapse for functions that are excepted from the Act's general prohibition:
functions relating to emergencies involving an imminent threat
to the safety of human life or protection of prperty; other functions
as to which express statutory authority to incur obligations in
advance of appropriations has been granted; those functions for
which such authirty arises by necessary implication; and certain
functions necessary to the discharge of the President's constitutional
duties and powers. Suche personnel may not be paid, however, until
appropriations are enacted.
The President may use his authority under 3 U.S.C. § 105
to create and fill nonsalaried positions in the White House
Office during an appropriations lapse, but nonsalaried employees
cannot receive an obligation of payment for the services they
perform in that capacity.
White House Office employees appointed under 3 U.S.C. § 105
may waive their compensation, and if they do so, their services
may be accepted during an appropriations lapse..
September 13, 1995 |
CONSTITUTIONAL LIMITATIONS
ON FEDERAL GOVERNMENT PARTICIPATION IN BINDING ARBITRATION
arbitn.fin |
The Appointments Clause
does not prohibit the federal government from submitting to binding
arbitration.
Nor does any other constitutional provision or doctrine impose
a general prohibition against the federal government entering
into binding arbitration, although the Constitution does impose
substantial limits on the authority of the federal government
to enter into binding arbitration in specific cases.
September 7, 1995 |
GOVERNMENT OPERATIONS
IN THE EVENT OF A LAPSE IN APPROPRIATIONS
appropriations2 |
A government agency may employ personal
services in advance of appropriations only when there is a reasonable
and articulable connection between the function to be performed
and the safety of human life or the protection of property, and
when there is some reasonable likelihood that either or both would
be compromised in some significant degree by the delay in the
performance of the function in question.
August 16, 1995 |
LEGAL GUIDANCE ON THE
IMPLICATIONS OF THE SUPREME COURT'S DECISION IN ADARAND CONSTRUCTORS,
INC. v. PEÑA
adarand |
This memorandum sets forth preliminary
legal guidance on the implications of the Supreme Court's decision
in Adarand Constructors, Inc. v. Peña, which held that "strict
scrutiny" is the standard that governs judicial review of the
constitutionality of federal affirmative action programs that
use racial and ethnic criteria as a basis for decision-making
The memorandum is not intended to serve as a definitive statement
of what Adarand means for any particular affirmative action program;
rather, it is intended to provide a general overview of the Court's
decision and the application of the strict scrutiny standard in
the context of affirmative action.
June 28, 1995 |
EFFECTS OF A PRESIDENTIAL
PARDON
pardon3.19 |
A full and unconditional presidential
pardon precludes the exercise of the authority to deport a convicted
alien under 8 U.S.C. § 1251(a)(2)
A full and unconditional presidential pardon removes a state
direarm disability arising as a result of a conviction of a
federal crime.
A full and unconditional presidential pardon extends to the
remission of restitution ordered by a court pursuant to 18 U.S.C. § 355-1(b)-(c)
as a "sanction" authorized in addition to imprisonment, probation,
or a fine until such times as the restitution award is paid
to the victim.
June 19, 1995 |
WAIVER OF CLAIMS FOR DAMAGES
ARISING OUT OF COOPERATIVE SPACE ACTIVITY
opinion.003 |
Congress has not authorized the National
Aeronautics and Space Administration to waive subrogated claims
on behalf of federal agencies against certain foreign States for
damages arising out of cooperative space activity.
An amendment to the Space Act would be necessary to grant
NASA the authority to waive subrogated claims on behalf of federal
agencies against foreign States for damages arising out of cooperative
space activity.
The President may waive claims, including subrogated claims,
against foreign governments, in exchange for a reciprocal waiver
from the foreign government. The President may delegate this
authority to an agency head.
The weight of authority supports the President's power to
waive state claims against a foreign government.
June 7, 1995 |
FIDUCIARY OBLIGATIONS
REGARDING BUREAU OF PRISONS COMMISSARY FUND
bptrust1 |
31 U.S.C. § 1321 and its accompanying
Department of Justice regulations do not impose a fiduciary obligation
on the Bureau of Prisons to expend Commissary Fund moneys only
in accordance with the terms of the Commissary Fund trust.
May 22, 1995 |
BILL TO RELOCATE UNITED
STATES EMBASSY FROM TEL AVIV TO JERUSALEM
s770.16 |
The provisions of a bill that render
the executive branch's ability to obligate appropriated funds
conditional upon the construction and opening in Jerusalem of
the United States Embassy to Israel invade exclusive presidential
authorities in the filed of foreign affairs and are unconstitutional.
May 16, 1995 |
AUTHORITY OF THE SECRETARY
OF THE TREASURY TO ORDER THE CLOSING OF CERTAIN STREETS LOCATED
ALONG THE PERIMETER OF THE WHITE HOUSE
penns.opn |
18 U.S.C. § 3056
grants the Secretary of the Treasury broad authority to take actions
that are necessary and proper to protect the President, including
the authority to order the closing of certain streets located
along the perimeter of the White House.
May 12, 1995 |
WHETHER 18 U.S.C.§ 603
BARS CIVILIAN EXECUTIVE BRANCH EMPLOYEES AND OFFICERS FROM MAKING
CONTRIBUTIONS TO A PRESIDENT'S AUTHORIZED RE-ELECTION CAMPAIGN COMMITTEE
603 |
Civilian employees and
officers in the executive branch would not violate 18 U.S.C. § 603,
as amended by the Hatch Act Reform Amendments of 1993, by making
contributions to a President's authorized reelection campaign
committee, so long as such contributions were not made in a manner
that would violate the specific prohibitions of 5 U.S.C. §§ 7324(a)(1)-(4).
May 5, 1995 |
IMPERMISSIBILITY OF DEPUTIZING
THE HOUSE SERGEANT AT ARMS AS A SPECIAL DEPUTY U.S. MARSHAL
usmsdep.sa1. |
Appointment of the House
Sergeant at Arms as a Special Deputy U.S. Marshal would entail
an overlapping of congressional and executive accountability that
is incompatible with separation of powers requirements.
Appointment of the House Sergeant at Arms as a Special Deputy
U.S. Marshal would impermissibly involve the institution of
Congress in executive branch law enforcement.
April 10, 1995 |
EXECUTIVE ORDER NO. 12954,
ENTITLED "ENSURING THE ECONOMICAL AND EFFICIENT ADMINISTRATION AND
COMPLETION OF FEDERAL GOVERNMENT CONTRACTS"
eostrike |
The Federal Property
and Administrative Services Act vests the President with authority
to issue Executive Order No. 12954 in light of his finding that
it will promote economy and efficiency in government procurement.
March 9, 1995 |
USE OF THE EXCHANGE STABILIZATION
FUND TO PROVIDE LOANS AND CREDITS TO MEXICO
esf2 |
As part of an international financial
support package for Mexico, the President and the Treasury Secretary
have the authority under section 10(a) of the Gold Reserve Act
of 1934, as amended, to use the Treasury Department's Exchange
Stabilization Fund to provide loans and credits to Mexico in the
form of (i) short-term currency "swaps" through which Mexico will
borrow U.S. dollars in exchange for Mexican pesos for 90 days;
(ii) medium-term currency swaps through which Mexico will borrow
U.S. Dollars for up to five years; and (iii) guaranties through
which the United States will back-up Mexico's obligations on government
securities for up to ten years.
March 2, 1995 |
PERMISSIBILITY OF THE
ADMINISTRATION AND USE OF THE FEDERAL PAYROLL ALLOCATION SYSTEM
BY EXECUTIVE BRANCH EMPLOYEES FOR CONTRIBUTIONS TO POLITICAL ACTION
COMMITTEES
pacman3 |
Federal employees who
would offer the use of, or administer, the federal salary-allocation
system for allotments to political action committees, would not,
without more, violate 18 U.S.C. §§ 602 and 607, or the
civil provisions of the Hatch Act Reform Amendments of 1993.
The Hatch Act Reform Amendments of 1993 would prohibit certain high-level
and Executive Office employees identified in 5 U.S.C. § 7324(b),
the duties and responsibilities of whose positions continue outside
normal duty hours and while away from the normal duty post, from
using the salary-allocation system to make contributions to political
action committees.
The Hatch Act Reform Amendments of 1993 would not prohibit the remainder
of federal employees covered by those Amendments from making contributions
to political action committees through the salary-allocation system;
however, 5 U.S.C. § 7324(a) would expressly prohibit such employees
from taking steps to use the salary-allocation system to make such
contributions while they are on duty or in a federal building.
While use of the salary-allocation system for contributions to political
action committees would be lawful under certain circumstances, the
head of each federal agency has the discretion to decide whether
to make the system available for that purpose to employees of the
agency.
February 22, 1995 |
AUTHORITY OF FBI AGENTS,
SERVING AS SPECIAL DEPUTY UNITED STATES MARSHALS, TO PURSUE NON-FEDERAL
FUGITIVES
fistopcc |
Regardless of whether federal process
is outstanding or anticipated, agents of the Federal Bureau of
Investigation have authority to investigate fugitive felons when
there is a reasonable basis to believe that doing so will detect
or prevent the commission of a federal crime. U.S. Marshals, including
FBI agents serving as Special Deputy U.S. Marshals, have authority
under 28 U.S.C. § 566(e)(1)(B) to investigate and pursue
fugitives wanted under state felony warrants whenever such action
is undertaken pursuant to a special apprehension program approved
by the Attorney General. Where a U.S. Marshal or Special Deputy
U.S. Marshal is engaged in an approved investigation of state
law fugitives under section 566(e)(1)(B), the marshal's derivative
state sheriff powers under 28 U.S.C. § 564 and the marshal's
inherent authority to take enforcement actions necessary to carry
out his federal duties provide bases for the marshal to arrest
such fugitives. Neither the doctrine of legislative ratification
nor the U.S. Marshals Service's inherent or "federal common law" authority
provide independent, non-statutory legal authority for marshals
to pursue or arrest fugitives sought for state law violations
only. In circumstances where there is good reason to believe that
the pursuit or arrest will prevent the commission of a federal
felony, marshals do have limited inherent authority to take the
necessary preventive measures.
February 21, 1995 |
INTERNAL REVENUE SERVICE
NOTICES OF LEVY ON UNDELIVERED COMMERCE DEPARTMENT FISHING QUOTA
PERMITS
fishtaxop1 |
Internal Revenue Service
notices of levy may lawfully be applied to the undelivered quota
shares or individual fishing quotas to be issued by the Department
of Commerce to taxpayers who have otherwise qualified for them.
January 26, 1995 |
THE BALANCED BUDGET AMENDMENT
jtecon.95.8 |
The lack of any enforcement mechanism
in current proposals to amend the Constitution to require a balanced
budget could result in the transfer of power over fundamental
political questions of taxing and spending to the courts. This
would represent a substantial reordering of our basic constitutional
structure.
Before resorting to the drastic step of amending the Constitution,
Congress should explore other reasonable alternatives, including
line item veto legislation.
January 23, 1995 |
RELATIONSHIP BETWEEN DEPARTMENT
OF JUSTICE ATTORNEYS AND PERSONS ON WHOSE BEHALF THE UNITED STATES
BRINGS SUITS UNDER THE FAIR HOUSING ACT
civrts2mem |
When the Department of Justice undertakes
a civil action on behalf of a complainant alleging a discriminatory
housing practice under the Fair Housing Act, Department attorneys
handling the action do not enter into an attorney-client relationship
with the complainant, nor do they undertake a fiduciary obligation
to the complainant. Because no attorney-client relationship is
established in such undertakings, no retainer agreement between
the complainant and the Department attorneys should be entered
into.
January 20, 1995 |
AUTHORITY OF THE FEDERAL
FINANCIAL SUPERVISORY AGENCIES UNDER THE COMMUNITY REINVESTMENT
ACT
cra |
The federal financial supervisory
agencies lack authority under the Community Reinvestment Act of
1977 to provide by regulation that financial institutions that
do not meet the credit needs of their communities may be subject
to administrative enforcement actions under 12 U.S.C. § 1818.
December 15, 1994 |
WHETHER URUGUAY ROUND
AGREEMENTS REQUIRED RATIFICATION AS A TREATY
gatt |
The Uruguay Round Agreements concluded
under the auspices of the General Agreement on Tariffs and Trade
did not require ratification by the Senate as a treaty, but could
constitutionally be executed by the President and approved and
implemented by Act of Congress.
November 22, 1994 |
CONGRESSIONAL TESTIMONY
OF AN ASSISTANT UNITED STATES ATTORNEY ON BEHALF OF THE NATIONAL
ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS naausa |
The Department of Justice correctly
takes the position that it may not prohibit an Assistant United
States Attorney ("AUSA") from testifying before Congress in his
or her personal capacity on behalf of the National Association
of Assistant United States Attorneys.
The Department of Justice rules regulating such testimony
are consistent with the First Amendment. Those rules require
that the AUSA make it clear that he or she is not speaking for
the Department, avoid using or permitting the use of his or
her official title or position in connection with the testimony
(except as one of several biographical details), and comply
with rules on the protection of confidential information.
November 7, 1994 |
APPLICATION OF 18 U.S.C. § 205
TO COMMUNICATIONS BETWEEN THE NATIONAL ASSOCIATION OF ASSISTANT
UNITED STATES ATTORNEYS AND THE DEPARTMENT OF JUSTICE
naausa2 |
The restrictions of 18 U.S.C. § 205
preclude current federal employees from representing the National
Association of Assistant United States Attorneys ("NAAUSA") before
the Department of Justice regarding compensation, workplace issues,
and other issues that focus on the interests of Assistant United
States Attorneys ("AUSAs") or another discrete and identifiable
class of persons or entities.
Section 205 does not preclude several other kinds of communications
between the Department and NAAUSA or similar associations. The
Department is not precluded from dealing with individual AUSAs
or groups of AUSAs in their official capacities on matters affecting
AUSAs, even if those AUSAs are coincidentally members of NAAUSA.
Nor does section 205 place any restrictions on representatives
who are not current federal employees, such as NAAUSA's executive
director or former AUSAs no longer employed by the government.
Finally, discussions of broad policy directed towards a large
and diverse group of persons would be permissible under the
statute.
November 7, 1994 |
PRESIDENTIAL AUTHORITY
TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES
nonexcut |
This memorandum discusses
the President's constitutional authority to decline to execute
unconstitutional statutes.
November 2, 1994 |
THE TWENTY-SECOND DECENNIAL
CENSUS
census224a |
Neither the Enumeration Clause
of the Constitution nor the Census Act precludes the Bureau
of the Census from statistically adjusting "headcounts" in the
decennial census for the year 2000 or conducting the non-response
follow-up on a sample basis. The provision in
the Census Act prohibiting sampling for purposes of apportionment
of the House of Representatives does not preclude reliance upon
statistical adjustments that would improve the accuracy of "headcount" data.
October 7, 1994 |
AVAILABILITY OF MONEY
DAMAGES UNDER THE RELIGIOUS FREEDOM RESTORATION ACT
damages |
Section 3(c) of the Religious Freedom
Restoration Act, which makes available "appropriate relief" in
judicial proceedings against federal and state government entities,
does not waive or abrogate the sovereign immunity of federal and
state governments against the award of money damages.
October 7, 1994 |
DEPLOYMENT OF UNITED STATES
ARMED FORCES INTO HAITI
haiti |
The President possessed the legal
authority to deploy United States Armed Forces into Haiti.
The planned deployment accorded with the sense of Congress,
satisfied the requirements of the War Powers Resolution, and
was not a "war" with the meaning of the Constitution.
September 27, 1994 |
MUTUAL CONSENT PROVISIONS
IN THE GUAM COMMONWEALTH LEGISLATION
07281994_mutconst.pdf |
Sections
of the Guam Commonwealth Bill requiring the mutual consent of
the Government of the United States and the Government of Guam
raise serious constitutional questions and are legally unenforceable.
July 28, 1994 |
CONSTITUTIONALITY OF LEGISLATION
EXTENDING THE TERMS OF OFFICE OF UNITED STATES PAROLE COMMISSIONERS
paroleco |
Legislation extending the term of
an officer who serves at will does not violate the Appointments
Clause of the United States Constitution. Because United States
Parole Commissioners may be removed by the President at will,
Pub. L. 101-650, § 316, which extends the terms of office
of certain Parole Commissioners, does not violate the Appointments
Clause.
July 15, 1994 |
UNITED STATES ASSISTANCE
TO COUNTRIES THAT SHOOT DOWN CIVIL AIRCRAFT INVOLVED IN DRUG TRAFFICKING
shootdow |
The Aircraft Sabotage Act of 1984
applies to the police and military personnel of foreign governments.
In particular, the Act applies to the use of deadly force by such
foreign governmental actors against civil aircraft in flight that
are suspected of transporting illegal drugs. There is accordingly
a substantial risk that United States Government officers and
employees who provide flight tracking information or certain other
forms of assistance to the aerial interdiction programs of foreign
governments that have destroyed such aircraft, or that have announced
an intent to do so, would be aiding and abetting conduct that
violated the Act.
July 14, 1994 |
REVIEW OF 1988 OPINION
CONCERNING THE APPLICABILITY OF SECTION 504 OF THE REHABILITATION
ACT TO INDIVIDUALS INFECTED WITH HIV
hiv.fin |
The 1988 Office of Legal Counsel opinion
accurately describes the duties imposed by section 504 of the
Rehabilitation Act with respect to individuals infected with the
Human Immunodeficiency Virus. The subsequent passage of the Americans
with Disabilities Act did not alter the analysis of cases arising
under the Rehabilitation Act, although an amendment to section
504 now requires reference to standards set forth in the ADA.
Application of the standards set forth under section 504 in any
particular case requires consideration of current scientific understanding
of HIV infection. Advances in the scientific understanding of
HIV infection since 1988 may undermine some of the discussion
in the 1988 opinion about the application of these standards to
individual cases.
July 8, 1994 |
APPLICABILITY OF 18 U.S.C. § 208
TO PROPOSED APPOINTMENT OF GOVERNMENT OFFICIAL TO THE BOARD OF CONNIE
LEE conniemem220a |
An executive branch officer or
employee appointed to the Board of Directors of Connie Lee would
be a "director" within the meaning of 18 U.S.C. § 208(a)
and therefore would be disqualified from participating "personnally
and substantially" in any "particular matter" implicating the
financial interests of Connie Lee unless the conditions of subsection
208(b) are satisfied.
June 22, 1994 |
PRE-JUDGMENT INTEREST
UNDER THE BACK PAY ACT FOR REFUNDS OF FEDERAL INSURANCE CONTRIBUTIONS
ACT OVERPAYMENTS
backpay |
The Back Pay Act's authorization
of prejudgment interest does not apply to the return of a Federal
Insurance Contributions Act tax overpayment. Even if the Back
Pay Act did apply to such returns, an agency's specific exemption
from liability under FICA would override the provisions of the
Back Pay Act. May 31, 1994 |
DEPUTIZATION OF MEMBERS
OF CONGRESS AS SPECIAL DEPUTY U.S. MARSHALS
depmar |
The deputization of members of Congress
as special Deputy U.S. Marshals is inconsistent with separation
of powers principles and with the statutory language and historical
practice governing special deputation.
May 25, 1994 |
RECONSIDERATION OF APPLICABILITY
OF THE DAVIS-BACON ACT TO THE VETERAN ADMINISTRATION'S LEASE OF
MEDICAL FACILITIES
davbac |
Contrary to the view expressed in
an earlier Opinion of the Office of Legal Counsel, the plain language
of the Davis-Bacon Act does not bar its application to a lease
contract on the ground that such contracts are per se not contracts
for construction. The applicability of the Davis-Bacon Act to
any specific lease contract can be determined only by considering
the details of the particular contract.
May 23, 1994 |
AUTHORITY OF DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT TO INITIATE ENFORCEMENT ACTIONS
UNDER THE FAIR HOUSING ACT AGAINST OTHER EXECUTIVE BRANCH AGENCIES
fha |
Because substantial separation of
powers concerns would be raised by construing the Fair Housing
Act ("the Act") to authorize the Department of Housing and Urban
Development ("HUD") to initiate enforcement proceedings against
other executive branch agencies, the Act cannot be so construed
unless it contains an express statement that Congress intended
HUD to have such authority. Because the Act does not contain such
an express statement, it does not grant HUD this authority.
There is no basis for construing the Act so that the HUD investigative
and administrative process under the Act may be deemed applicable,
but the judicial enforcement procedures deemed inapplicable.
May 17, 1994 |
ELIGIBILITY OF INVOLUNTARY
WARTIME RELOCATEES TO JAPAN FOR REDRESS UNDER THE CIVIL LIBERTIES
ACT OF 1988
14815.mem |
The proposed Department of Justice
change in its interpretation of the Civil Liberties Act of 1988
to extend redress under the Act to minors who accompanied their
parents to Japan during World War II and to adults who are able
to show that their relocation to Japan during that period was
involuntary is a reasonable and permissible interpretation of
the statute. Although an agency interpretation that has been modified
or reversed is likely to receive less deference by a reviewing
court than a consistent and contemporaneous interpretation, the
fact of modification does not preclude the court from granting
deference to the new interpretation.
May 10, 1994 |
EQUITABLE TRANSFERS OF
FORFEITED MONIES OR PROPERTY
asset2 |
When the federal government makes
an equitable transfer of forfeited monies or property to a state
or local law enforcement agency, that transfer is more appropriately
characterized as a conditional gift to the agency rather than
as a formal contract between the federal government and the agency.
If the state or local agency fails to use the transferred
property for law enforcement purposes, the federal government
may be able to pursue restitution of the property.
April 19, 1994 |
MARAD RULEMAKING AUTHORITY
UNDER CARGO PREFERENCE LAWS
cpaop |
The U.S. Maritime Administration has
the authority to promulgate rules establishing mandatory uniform
charter terms for the carriage of cargoes subject to the Cargo
Preference Act of 1954.
April 19, 1994 |
AUTHORITY OF USDA TO AWARD
MONETARY RELIEF FOR DISCRIMINATION
usda |
The Department of Agriculture has
authority to award monetary relief, attorneys' fees, and costs
to a person who has been discriminated against in a program conducted
by USDA if a court could award such relief in an action by the
aggrieved person. That question is controlled by whether the anti-discrimination
provisions of the applicable civil rights statute apply to federal
agencies, and if so, whether the statute waives the sovereign
immunity of the United States against imposition of such relief.
The anti-discrimination provisions of Title VI of the Civil
Rights Act of 1964 do not apply to federal agencies. Some anti-discrimination
provisions in each of the other civil rights statutes addressed
in the opinion do apply to federal agencies, but only one of
the statutes, the Equal Credit Opportunity Act, waives sovereign
immunity with respect to monetary relief, authorizing imposition
of compensatory damages. The Fair Housing Act and the Rehabilitation
Act do not waive immunity against monetary relief. Attorneys'
fees and costs may be awarded pursuant to the waiver of immunity
contained in the Equal Access to Justice Act.
April 18, 1994 |
SIXTH AMENDMENT IMPLICATIONS
OF LAW ENFORCEMENT CONTACT WITH CORPORATE EXECUTIVES
garland |
Law enforcement contacts with high-ranking
executives of a corporation after criminal charges have been filed
against the corporation violate the corporation's Sixth Amendment
right to counsel.
No Sixth Amendment violation occurs when law enforcement contacts
with high-ranking executives occur while civil penalty proceedings
are in progress against the corporation.
April 15, 1994 |
WHETHER MEMBERS OF THE
SENTENCING COMMISSION WHO WERE APPOINTED PRIOR TO THE ENACTMENT
OF A HOLDOVER STATUTE MAY EXERCISE HOLDOVER RIGHTS PURSUANT TO THE
STATUTE
sentcomm |
Statutory provisions
that allow members of the United States Sentencing Commission
to hold over in office after their terms have expired apply to
incumbent members who were appointed prior to the enactment of
the holdover statute.
Commissioners who were appointed prior to the enactment of
the holdover statute may constitutionally exercise such holdover
rights without violating the Appointments Clause.
April 5, 1994 |
APPLICATION OF THE BRADY
ACT'S CRIMINAL PENALTIES TO STATE OR LOCAL LAW ENFORCEMENT OFFICERS |
The criminal penalties contained in
the Brady Handgun Violence Protection Act do not apply to state
or local law enforcement officers in the performance of their
duties under the Brady Act. Accordingly, the United States lacks
the authority to prosecute state or local officials for violations
of the Brady Act.
March 16, 1994 |
OCC MORTGAGE LENDING TESTING
PROGRAM
occ |
Individuals who serve as "testers" in
a proposed Office of the Comptroller of the Currency program designed
to identify discriminatory lending practices by national banks
would not violate any federal criminal laws if, as part of the
program, they provide false information to targeted banks.
March 8, 1994 |
APPLICABILITY OF EMOLUMENTS
CLAUSE TO EMPLOYMENT OF GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES
emolnasa |
The Emoluments Clause
does not apply in the cases of government employees offered faculty
employment by a foreign public university where it can be shown
that the university acts independently of the foreign State when
making faculty employment decisions.
March 1, 1994 |
WHETHER THE OFFICE OF
THE VICE PRESIDENT IS AN "AGENCY" FOR PURPOSES OF THE FREEDOM OF
INFORMATION ACT
foiavp |
The Office of the Vice
President is not an "agency" for purposes of the Freedom of Information
Act.
February 14, 1994 |
DENIAL OF PUBLIC ACCESS
TO TRIAL EXHIBITS IN CHILD PORNOGRAPHY PROSECUTIONS
kidporn |
Courts may deny public
access to exhibits entered into evidence in child pornography
prosecutions.
February 10, 1994 |
RESPONSIBILITY FOR ISSUING
REVISED HATCH ACT REGULATIONS
hatch |
The Office of Personnel Management,
rather than the Office of Special Counsel, has the authority to
promulgate regulations delimiting the scope and nature of permissible
activities under the Hatch Act Reform Amendments of 1993.
February 2, 1994 |
RECONSIDERATION OF PRIOR
OPINION CONCERNING LAND-GRANT COLLEGES
reconsid |
After reconsideration of a prior opinion,
we adhere to the conclusion that the State of West Virginia may
validly designate West Virginia State College as the beneficiary
of appropriated funds under the Second Morrill Act of 1890.
Reversing a prior conclusion, we find that the State's designation
of the College as a Second Morrill Act beneficiary does not
make that institution eligible for funds appropriated under
certain statutes administered by the Department of Agriculture.
December 23, 1993 |
ADMISSIBILITY OF ALIEN
AMNESTY APPLICATION INFORMATION IN PROSECUTIONS OF THIRD PARTIES
PROSECUTIONS OF THIRD PARTIES
ircaop |
The confidentiality provisions of
the Immigration Reform and Control Act of 1986 generally bar federal
prosecutors from introducing information from alien amnesty applications
as evidence in criminal prosecutions of third parties, but the
use of such information is not barred in prosecutions of third
parties for crimes that facilitate, or are closely related to,
the filing of a false amnesty application.
Justice Department use of amnesty application information
is also subject to regulations issued by the Immigration and
Naturalization Service. Those regulations limit such use against
third parties to the prosecution of persons who have "created
or supplied a false writing or document for use" in an amnesty
application.
December 22, 1993 |
CLARIFICATION OF PRIOR
OPINION REGARDING BORROWING BY BANK EXAMINERS
bankex |
18 U.S.C. § 213, which prohibits
federal bank examiners from borrowing from Federal Reserve member
banks or other entities subject to examination by them, does not
prohibit such examiners from receiving loans or credit from affiliates
of covered banks merely because such affiliates are under "common
control" with the bank or because the covered bank and the affiliate
have a common majority of corporate officers or directors.
An examiner would be prohibited from borrowing from such an
affiliated entity, where the affiliate is serving as a conduit
or "front" for the implementation of a loan that is actually
extended due to the direction, instigation, or influence of
the affiliated member bank or person connected therewith.
December 20, 1993 |
AUTHORITY TO PAY STATE
AND LOCAL TAXES ON PROPERTY AFTER ENTRY OF AN ORDER OF FORFEITURE asset3 |
The Attorney General has discretionary
authority to make payments of state and local tax claims against
civilly forfeited property after a forfeiture order has issued,
based on her equitable discretion to administer civilly forfeited
property, under 21 U.S.C. § 881(b)-(e) and 28 U.S.C. § 524(c)(1).
The Attorney General has discretion to pay state and local
tax claims against criminally forfeited property, under the
authority in those statutes to "take any other action to protect
the rights of innocent persons which is in the interests of
justice."
December 9, 1993 |
APPLICABILITY OF EXECUTIVE
ORDER NO. 12674 TO PERSONNEL OF REGIONAL FISHERY MANAGEMENT COUNCILS
fishery |
The appointed members of Regional
Fishery Management Councils established under the Magnuson Fishery
Conservation and Management Act and other personnel of those Councils
are not Executive Branch employees for purposes of Executive Order
No. 12674 and its implementing regulations, and thus are not subject
to that Order.
December 9, 1993 |
CONSTITUTIONALITY OF
VESTING MAGISTRATE JUDGES WITH JURISDICTION OVER ASSET FORFEITURE
CASES
forfeit |
A statute vesting jurisdiction
over asset forfeiture cases in magistrate judges would violate
Article III of the Constitution.
December 6, 1993 |
WHETHER MISSOURI MUNICIPALITIES
MAY TAX THE PORTION OF FEDERAL SALARIES VOLUNTARILY CONTRIBUTED
TO THE THRIFT SAVINGS PLAN
tsp |
Intergovernmental tax
immunity does not preclude municipalities in Missouri from levying
an earnings tax on the voluntary contributions of federal employees
to the Thrift Savings Plan.
November 10, 1993 |
THE LEGAL SIGNIFICANCE
OF PRESIDENTIAL SIGNING STATEMENTS
signing |
Many Presidents have used signing
statements to make substantive legal, constitutional, or administrative
pronouncements on the bill being signed. Although the recent practice
of issuing signing statements to create "legislative history" remains
controversial, the other uses of Presidential signing statements
generally serve legitimate and defensible purposes.
November 3, 1993 |
CONSTITUTIONALITY OF
HEALTH CARE REFORM
1stlady |
The proposed Health Security Act is
well within the authority of the Congress under the Commerce Clause,
and it does not violate Tenth Amendment or other principles of
federalism.
The proposal contains no unconstitutional takings of private
property or infringement of liberty interests.
The proposed delegation of administrative authority to the
National Health Board, and, from it, to state alliances, is
not an impermissible delegation of legislative authority.
October 29, 1993 |
APPLICABILITY OF THE
EMOLUMENTS CLAUSE TO NON-GOVERNMENT MEMBERS OF ACUS
acus |
Non-government members of the Administrative
Conference of the United States (ACUS) are prohibited by the Emoluments
Clause from accepting, absent Congress's consent, a distribution
from their partnerships that includes some proportionate share
of the revenues generated from the partnership's foreign government
clients.
Non-government members of ACUS are also generally forbidden,
absent Congress's consent, from accepting payments from commercial
entities owned or controlled by foreign governments.
October 28, 1993 |
LIABILITY OF THE UNITED
STATES FOR STATE AND LOCAL TAXES ON SEIZED AND FORFEITED PROPERTY
asset4 |
In civil forfeiture proceedings (under
21 U.S.C. § 881), the United States is obligated to pay liens
for state and local taxes accruing after the commission of the
offense leading to forfeiture and before the entry of a judicial
order of forfeiture, if the lien-holder establishes, before the
court enters the order of forfeiture, that it is an innocent owner
of the interest it asserts.
In criminal forfeiture proceedings (under 18 U.S.C. § 1963
or 21 U.S.C. § 853), the United States may not pay such
liens because state and local tax lien-holders are not bona
fide purchasers for value of the interests they would assert,
and therefore do not come within any applicable exception to
a statute that, upon entry of a court's final order of forfeiture,
vests full ownership retroactively in the United States as of
the date of the offense.
October 18, 1993 |
IMMIGRATION CONSEQUENCES
OF UNDOCUMENTED ALIENS' ARRIVAL IN UNITED STATES TERRITORIAL WATERS
nautical |
Undocumented aliens interdicted within
the twelve-mile zone that comprises the United States's territorial
sea are not entitled to a hearing under the exclusion provisions
of the Immigration and Nationality Act (INA).
The Immigration and Naturalization Service had the authority
to promulgate an interpretative rule construing the "territorial
waters" of the United States, as referred to in section 287
of the INA, to extend for twelve nautical miles.
October 13, 1993 |
SUSPENSION OF A UNITED
STATES MARSHAL
marshals |
With the prior approval of the President,
the Attorney General may suspend a United States Marshal without
pay.
During the period of a United States Marshal's suspension,
the Attorney General may designate an Acting United States Marshal
to carry out the duties of the office.
September 23, 1993 |
REIMBURSEMENT FOR COSTS
OF ATTENDING CERTAIN BANQUETS
mealcost |
Employees in the United States Attorneys'
offices may properly be reimbursed for the costs of attending
retirement banquets for state law enforcement officials under
appropriate circumstances. However, reimbursement for attendance
at such functions should be limited to circumstances where the
nature of the ceremonial event in question provides good reason
to believe that the employee's attendance advances the authorized
functions or programs of the office.
September 23, 1993 |
DISCLOSURE OF GRAND JURY
MATTERS TO THE PRESIDENT AND OTHER OFFICIALS
gjag |
The Attorney General may disclose
grand jury material covered by Rule 6(e) of the Federal Rules
of Criminal Procedure to the President and members of the National
Security Council where such disclosure is for the purpose of assisting
the Attorney General in her enforcement of federal criminal law.
Although under those circumstances such disclosure may be made
without prior judicial approval, the names of those receiving
the grand jury material must be submitted to the court that impaneled
the grand jury in question.
There are also circumstances where the President's constitutional
responsibilities may provide justification for the Attorney
General to disclose grand jury matters to the President independent
of the provisions of Rule 6(e). Such circumstances might arise,
for example, where the Attorney General learns through grand
jury proceedings of a grave threat of terrorism, implicating
the President's responsibility to take care
that the laws be faithfully executed.
September 21, 1993 |
GENERAL SERVICES ADMINISTRATION
PRINTING OPERATIONS
opgsa.3 |
The Joint Committee on Printing lacks
the authority to alter the General Services Administration's printing
operations, because the only basis for that authority is an invalid
legislative veto provision contained in 44 U.S.C. 501. Section
207 of Public Law 102-392 requires executive branch entities (other
than the Central Intelligence Agency, the Defense Intelligence
Agency, and the National Security Agency) to procure printing
related to the publication of government publications by or through
the Government Printing Office.
September 13, 1993 |
ETHICS ISSUES RELATED
TO THE FEDERAL TECHNOLOGY TRANSFER ACT OF 1986
208 |
A government employee-inventor who
assigns his rights in an invention to the United States and accepts
the government's payment of amounts tied to the resulting royalties,
as provided in the Federal Technology Transfer Act of 1986, 15
U.S.C. §§ 1501-1534, may continue to work on the invention
without violating the statute against taking part in matters in
which he has a financial interest, 18 U.S.C. § 208, or the
statute forbidding supplementation of federal salaries, 18 U.S.C. § 209.
Under 18 U.S.C. § 208, a government employee-inventor
may not take official action with respect to an agreement for
development of his invention entered into by the United States
and a company with which the employee has contracted to exploit
the invention abroad.
September 13, 1993 |
APPLICABILITY OF 18 U.S.C. § 207(c)
TO THE BRIEFING AND ARGUING OF CASES IN WHICH THE DEPARTMENT OF
JUSTICE REPRESENTS A PARTY
opsec207 |
Section 207(c) of title
18 forbids a former senior employee of the Department of Justice,
for one year after his or her service ends, from signing a brief
or making an oral argument in a case where the Department represents
one of the parties.
August 27, 1993 |
CONSTRUCTION OF § 406
OF THE FEDERAL EMPLOYEES PAY COMPARABILITY ACT OF 1990
fbipay |
Section 406 of the Federal Employees
Pay Comparability Act of 1990 does not extend the authority to
make bonus payments to employees at the New York Field Division
of the Federal Bureau of Investigation pursuant to section 601
of the Intelligence Authorization Act for fiscal years 1989 and
1990 beyond the expiration date of the demonstration project established
by section 601.
August 23, 1993 |
APPLICABILITY OF THE
CIVIL SERVICE PROVISIONS OF TITLE 5 OF THE UNITED STATES CODE TO
THE UNITED STATES ENRICHMENT CORPORATION
enrich_op |
The United States Enrichment
Corporation is exempt from the civil service provisions of title
5 of the United States Code.
June 22, 1993 |
AUTHORITY OF THE SECRETARY
OF THE TREASURY REGARDING POSTAL SERVICE BOND OFFERING
combinat |
If the Secretary of the Treasury,
within the fifteen-day period following notice by the United States
Postal Service of a proposed bond issue, declares his election
to purchase the bonds under 39 U.S.C. § 2006(a), the Postal
Service may not sell the bonds on the open market, but must instead
negotiate in good faith with the Secretary to reach agreement
on the terms and conditions of a sale to the Secretary.
Transfer of the proceeds of any bond offering by the Postal
Service to a trustee for the purpose of having the trustee make
payments on outstanding Postal Service debt would be a deposit
of Postal Service monies within the meaning of 39 U.S.C. § 2003(d)
and, accordingly, could only be done with the approval of the
Secretary of Treasury.
January 19, 1993 |
AUTHORITY TO GRANT CONSERVATION
EASEMENTS UNDER 40 U.S.C. § 319
conserv_19 |
Federal agencies do not have authority
to grant conservation easements in federal property under 40 U.S.C. § 319.
January 19, 1993 |
AUTHORITY OF THE ATTORNEY
GENERAL TO MAKE SUCCESSIVE DESIGNATIONS OF INTERIM UNITED STATES
MARSHALS
marshalfin |
Under 28 U.S.C. § 562, the Attorney
General may make two or more successive designations of a person
to serve as interim United States marshal in a judicial district
where the marshal's office is vacant.
After the expiration of an initial designation of a United
States marshal under 28 U.S.C. § 562, the Attorney General
may authorize a person to act as marshal under 28 U.S.C. §§ 509,
510.
January 19, 1993 |
AUTHORITY TO USE UNITED
STATES MILITARY FORCES IN SOMALIA |
The President, in his
constitutional role as Commander in Chief and Chief Executive,
might reasonably and lawfully determine that it was justified
to use United States Armed Forces personnel to protect those engaged
in relief work in Somalia. His authority extended to using U.S.
military personnel to protect Somalians and other foreign nationals
in Somalia.
December 4, 1992 |
IMMIGRATION AND NATURALIZATION
SERVICE PARTICIPATION IN COMPUTER MATCHING PROGRAM WITH THE DEPARTMENT
OF EDUCATION
ins_doed.24 |
The Immigration and Naturalization
Service has legal authority to participate in a computer matching
program with the Department in order to verify the immigration
status of alien applicants for federal student aid under Title
IV of the Higher Education Act of 1965
September 21, 1992 |
LEGAL AUTHORITY OF THE
DEPARTMENT OF THE TREASURY TO ISSUE REGULATIONS INDEXING CAPITAL
GAINS FOR INFLATION
archibal.23 |
The Department of the
Treasury does not have legal authority to index capital gains
for inflation by means of regulation.
September 1, 1992 |
WHETHER A STATE MAY ELECT
ITS UNITED STATES SENATORS FROM SINGLE-MEMBER DISTRICTS RATHER THAN
AT-LARGE
colored.22 |
Under the Seventeenh
Amendment to the Constitution, a State may not constitutionally
elect its United States Senators from two single-member districts
rather than at large.
August 20, 1992 |
ENFORCEMENT JURISDICTION
OF THE SPECIAL COUNSEL FOR IMMIGRATION RELATED UNFAIR EMPLOYMENT
PRACTICES
immigrat.21 |
Federal agencies are not included
in the phrase "person or other entity" in the antidiscrimination
provision of the Immigration Reform and Contol Act, 8 U.S.C. § 1324b(a)(1).
Accordingly, the Special Counsel for Immigration Related Unfair
Employment Practices is without authority to bring discrimination
charges against federal agencies.
August 17, 1992 |
PROPOSED FEDERAL ABORTION
LEGISLATION
kennedy.7 |
The proposed legislation would enact
a federal statutory regime of abortion regulation that leaves
the States with substantially less regulatory authority than they
have under Roe v.Wade or Planned Parenthood v. Casey.
The proposed legislation would represent a doubtful exercise
of Congress' power to enforce the Fourteenth Amendment and would
rest on a questionable link to Congress' power to regulate interstate
commerce.
July 1, 1992 |
MARKETING LOANS FOR GRAINS
AND WHEAT
mkt_loan.20 |
The formulas in the Food, Agriculture,
Conservation, and Trade Act of 1990, under which farmers repay
loans from the Department of Agriculture, contain a scrivener's
error in the organization of the subsections, and the provisions
should be read as if the error, which arose in the process of
enrollment, had not been made..
Under section 1302 of the Omnibus Budget Reconciliation Act
of 1990, marketing loan provisions that previously had been
discretionary would be mandatory for the 1993 through 1995 crop
years, if an agricultural trade agreement under the Uruguay
Round Negotiations pursuant to the General Agreement on Tariffs
and Trade were not entered into by June 30, 1992, or if this
agreement had not entered into force for the United States by
June 30, 1993.
June 3, 1992 |
CONGRESSIONAL PAY AMENDMENT
congress.17 |
The Congressional Pay Amendment, which
was originally proposed by Congress to the States for ratification
in 1789, and having been ratified by three-fourths of the States,
has been ratified pursuant to Article V and is accordingly now
part of the Constitution.
Under 1 U.S.C. § 106b, the Archivist was, upon receipt
of formal instruments of ratification from the requisite number
of States, required to publish the Congressional Pay Amendment
along with his certificate specifying that the Amendment has
become valid, to all intents and purposes, as part of the Constitution.
May 13, 1992 |
FUNDING FOR THE CRITICAL
TECHNOLOGIES INSTITUTE
damus.16 |
The Department of Defense may make
funds available to the National Science Foundation out of monies
appropriated in the Department of Defense Appropriations Act,
1991, to support the activities of the Critical Technologies Institute
during the 1992 fiscal year.
May 12, 1992 |
STATUTORY AUTHORITY TO
CONTRACT WITH PRIVATE SECTOR FOR SECURE FACILITIES
quinlan.15 |
The Federal Bureau of
Prisons has statutory authority to contract with the private sector
for secure facilities.
March 25, 1992 |
APPLICATION FOR 18 U.S.C. § 205
TO PROPOSED "MASTER AMICI"
veterans.14 |
18 U.S.C. § 205 precludes attorneys
in the executive branch from serving as "master amici" in the
Court of Veterans Appeals.
March 12, 1992 |
FOURTH AMENDMENT IMPLICATIONS
OF MILITARY USE OF FORWARD
LOOKING INFRARED RADARS TECHNOLOGY FOR CIVILIAN LAW ENFORCEMENT
radars92.13 |
Forward Looking Infrared Radars (FLIR)
reconnaissance of structures on private lands does not constitute
a search within the meaning of the Fourth Amendment.
Department of Defense personnel engaged in such surveillance
would not be subject to liability for damages in a constitutional
tort action.
March 4, 1992 |
TRANSFERS OF FORFEITED
PROPERTY TO STATE AND LOCAL LAW ENFORCEMENT AGENCIES
law.12 |
Section 981(e)(2) of title 18 does
not prevent a state or local law enforcement agency from retransferring
to other state or local government agencies property that has
been transferred from the federal government pursuant to that
section. However, the Attorney General has authority under section
981(e) to prevent such a further transfer by imposing a contrary
term of condition on the initial transfer from the federal government.
Section 881(e) of title 21 does not prevent a state or local
law enforcement agency from retransferring to other state or
local government agencies property that has been transferred
from the federal government pursuant to that section. However,
the Attorney General has authority under section 881(e) to forbid
a further transfer if he determines that to do so would "serve
to encourage further cooperation between the recipient State
or local agency and Federal law enforcementagencies."
January 23, 1992 |
ISSUES RAISED BY PROVISIONS
DIRECTING ISSUANCE OF OFFICIAL OR DIPLOMATIC PASSPORTS
gray.11 |
Section 129(e) of Pub.L. No.102-138
and section 503 of Pub.L.No. 102-140 are unconstitutional to the
extent that they purport to limit the President's ability to issue
more than one official or diplomatic passport to United States
government personnel. The single-passport requirements
set forth in section 129(e) and section 503 are severable from
the remainder of the statutes in which they appear.
The President is constitutionally authorized to decline to
enforce the portions of section 129(e) and section 503 that
purport to limit the issuance of official and diplomatic passports
January 17, 1992 |
RECESS APPOINTMENTS DURING
AN INTRASESSION RECESS
schmitz.10 |
The President may make interim recess
appointments during an intrasession recess of eighteen days.
January 14, 1992 |