| Memoranda & Opinions |
Overview
of Document |
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.htm |
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.htm
|
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 |
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 |
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 |
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 |
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 |
