MEMORANDA AND OPINIONS |
Overview of Document |
AUTHORITY OF THE FEDERAL FINANCIAL
SUPERVISORY AGENCIES UNDER THE COMMUNITY REINVESTMENT ACT
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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
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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
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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
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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
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This memorandum
discusses the President's constitutional authority
to decline to execute unconstitutional statutes.
November 2, 1994 |
THE TWENTY-SECOND DECENNIAL CENSUS
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Courts may deny
public access to exhibits entered into evidence in
child pornography prosecutions.
February 10, 1994 |
RESPONSIBILITY FOR ISSUING REVISED
HATCH ACT REGULATIONS
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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 |
