| 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 |
