Memoranda & Opinions |
Overview of Document |
APPLICATION OF 28 U.S.C. § 458
TO PRESIDENTIAL APPOINTMENTS OF FEDERAL JUDGES
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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SCOPE OF TREASURY DEPARTMENT PURCHASE
RIGHTS WITH RESPECT TO FINANCING INITIATIVES OF THE U.S.
POSTAL SERVICE
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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"
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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
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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
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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
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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
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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
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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
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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 |
