MEMORANDA AND OPINIONS |
Overview of Document |
RECONSIDERATION OF PRIOR OPINION
CONCERNING LAND-GRANT COLLEGES
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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
ircaop
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 |
