Memoranda & Opinions |
Overview
of Document |
WHETHER THE PRESIDENT MAY HAVE
ACCESS TO GRAND JURY MATERIAL IN THE COURSE OF EXERCISING
HIS DISCRETION TO GRANT PARDONS
grandjuryopinion.htm
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The President,
in the exercise of his pardon authority and responsibilities
under Article II, Section 2, Clause 1 of the United
States Constitution, may request that the pardon
attorney include grand jury information in any recommendation
he may make in connection with a pardon application
if the President determines that his need for such
information in considering that application outweighs
the confidentiality interests embodied in Rule 6(e)
of the Federal Rules of Criminal Procedure.
The prohibition in Rule 6(e) cannot
constitutionally be applied to prevent the President from
obtaining grand jury information already in the possession
of the Executive Branch when the President determines
that, for purposes of making a clemency decision, his
need for that information outweighs the confidentiality
interests embodied in Rule 6(e).
December 22, 2000 |
AUTHORIZATION FOR CONTINUING
HOSTILITIES IN KOSOVO
final
|
Pub. L. No.
106-31, The emergency supplemental appropriation
for military operations in Kosovo, constituted authorization
for continuing hostilities after the expiration
at sixty days under section 5(b) of The War Powers
Resolution.
December 19, 2000 |
AUTHORITY OF THE GENERAL SERVICES
ADMINISTRATION TO PROVIDE ASSISTANCE TO TRANSITION TEAMS
OF TWO PRESIDENTIAL CANDIDATES
gsatransitionopinion
|
The Presidential
Transition Act of 1963, with certain limited exceptions,
authorizes the Administrator of the General Services
Administration to provide transition assistance
only for those services and facilities necessary
to assist the transition of the "President-elect" and
the "Vice-President-elect," as those terms are defined
in the Act. Since there cannot be more than one "President-elect" and
one "Vice-President-elect" under the Act, the Act
does not authorize the Administrator to provide
transition assistance to the transition teams of
more than one presidential candidate.
November 28, 2000 |
PAYMENT OF ATTORNEY'S FEES IN
LITIGATION INVOLVING SUCCESSFUL CHALLENGES TO FEDERAL
AGENCY ACTION ARISING UNDER THE ADMINISTRATIVE PROCEDURE
ACT AND THE CITIZEN-SUIT PROVISIONS OF THE ENDANGERED
SPECIES ACT
opn5.htm
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For purposes
of settling attorney's fees claims in a case arising
under both section 10 of the Administrative Procedure
Act and the citizen-suit provisions of the Endangered
Species Act, federal litigators, in allocating hours
and costs between the APA-Equal Access to Justice
Act and ESA claims, should subordinate EAJA section
2412(d) to ESA section 11(g)(4). Under this approach,
hours and costs necessary to both counts should
be assigned to the ESA claim for attorney's fees
purposes, leaving only the hours and costs necessary
only to the APA claim to be paid under EAJA.
November 27, 2000 |
STATE TAXATION
OF INCOME OF CERTAIN NATIVE AMERICAN ARMED FORCES MEMBERS
sscrarevised
|
The Soldiers' and Sailors' Civil Relief Act prohibits States from taxing
the military compensation of Native American armed
forces members who are residents or domiciliaries
of tribal reservations from which they are absent
by reason of their military service.
November 22, 2000 |
USE OF AGENCY RESOURCES TO SUPPORT
PRESIDENTIAL TRANSITION
gsatransitionopinion1final
|
We adhere
to the conclusion in our December 14, 1992 Memorandum
that, under the Presidential Transition Act of 1963,
an executive agency or department may provide office
space, secretarial services, and other support services
to members of the transition team from agency appropriations
without reimbursement from the transition appropriation
when the provision of such space and support by
the agency, rather than by the transition team itself,
would minimize disruption to the agency's operations
caused by the transfer of the leadership of the
agency.
Our conclusion in the 1992 Memorandum is not affected
by the October 12, 2000 amendment to the Transition Act.
Direct support services and office space for those workshops
and orientations that the amendment authorizes should
be provided by GSA out of the appropriation for the transition,
unless their provision by a particular agency would minimize
disruption of the agency's mission or operations.
November 22, 2000 |
DEFINITION OF CANDIDATE UNDER
18 U.S.C. § 207(j)
candidatecommunicationop2
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Individuals
who otherwise meet the specifications and limitations
of § 207(j)(7)(A) and (B) should be deemed
to be communicating on behalf of a "candidate" through
the point at which that "candidate" assumes the
office to which he has been elected.
November 6, 2000 |
APPLICATION OF 18 U.S.C. § 207(d)
TO CERTAIN EMPLOYEES IN THE TREASURY DEPARTMENT
207d.htm
|
The post-employment
restrictions of 18 U.S.C. § 207(d), which cover
officials paid "at" the rate for level I of the
Executive Schedule, do not apply to officials paid
at a higher rate. Those officials are instead subject
to the restrictions of 18 U.S.C. § 207(c).
November 3, 2000 |
SECTION 235A OF THE IMMIGRATION
AND NATIONALITY ACT
ina235Anew
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Section 235A
of the Immigration and Nationality Act, requires
the Attorney General to establish and maintain certain
preinspection stations provided the foreign countries
concerned have consented to the establishment of
such stations on their territory and provided that
certain other preconditions have been satisfied.
Section 235A does not oblige the Attorney General or any
other Executive Branch official to enter into diplomatic
negotiations with foreign countries in order to obtain
their consent to the establishment of preinspection stations
on their territory, and it does not require that preinspection
stations be established before the preconditions have
been satisfied. Accordingly, section 235A does not unconstitutionally
infringes on the President's authority to conduct diplomatic
relations.
October 23, 2000 |
SHARING TITLE III ELECTRONIC
SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY
titleIIIfinal
|
Under Title
III of the Omnibus Crime Control and Safe Streets
Act, law enforcement officials may share with the
intelligence community information obtained through
surveillance authorized by courts pursuant to Title
III where it is done to obtain assistance in preventing,
investigating, or prosecuting a crime.
Law enforcement may also share with the intelligence community
information obtained through surveillance authorized by
the court pursuant to Title III where the information
is of overriding importance to national security or foreign
relations and disclosure is necessary for the President
to discharge his constitutional responsibilities over
these matters.
October 17, 2000 |
A SITTING PRESIDENT'S AMENABILITY
TO INDICTMENT AND CRIMINAL PROSECUTION
sitting_president
|
The indictment
or criminal prosecution of a sitting President would
unconstitutionally undermine the capacity of the
executive branch to perform its
constitutionally assigned functions.
October 16, 2000 |
ENFORCEABILITY OF 18 U.S.C. § 1302
18usc1302
|
Application
of 18 U.S.C. § 1302 to prohibit the mailing
of truthful advertising concerning lawful gambling
operations (except as to state-operated lotteries
in some circumstances) would violate the First
Amendment. Accordingly, the Department of Justice
will refrain from enforcing the statute with
respect to such mailings.
September 25, 2000 |
APPLICABILITY OF GOVERNMENT
CORPORATION CONTROL ACT TO TO GAIN SHARING BENEFIT AGREEMENT
nasaopinionfinal.htm
|
The Government
Corporation Control Act does not require the
National Aeronautics and Space Administration
to obtain legislative authorization before entering
into a "gain sharing benefit" agreement with
a private corporation that grants NASA deferred
cash payments based on an increase in the value
of the corporation's common stock.
September 18, 2000 |
ADMINISTRATION OF CORAL REEF
RESOURCES IN THE NORTHWEST HAWAIIAN ISLANDS
coralreef
|
The President
may use his authority under the Antiquities Act
to establish a national monument in the territorial
sea.
The President may use his authority
under the Antiquities Act to establish a national monument
in the exclusive economic zone to protect marine resources.
The President may not establish a national
wildlife refuge in the territorial sea or the exclusive
economic zone using the implied power to reserve public
lands recognized in United States v. Midwest Oil Co.,
236 U.S. 459 (1915).
The authority to manage national monuments
can, under certain circumstances, be shared between the
Department of the Interior and other agencies, but the
Fish and Wildlife Service must maintain sole management
authority over any national wildlife refuge area within
a monument. Regulations applicable to national monuments
trump inconsistent fishery management plans, but the establishment
of a national monument would not preclude the establishment
of a national marine sanctuary in the same area.
September 15, 2000 |
APPLICABILITY OF THE PRIVACY
ACT TO THE WHITE HOUSE
privacyact2
|
The Privacy
Act does not apply to the White House Office, which
is also known as the Office of the President.
September 8, 2000 |
APPLICATION
OF 18 U.S.C. § 209 TO EMPLOYEE-INVENTORS WHO
RECEIVE OUTSIDE ROYALTY PAYMENTS
209revised3
|
A
federal government employee who obtains patent
rights to an invention made in the course of
federal employment ordinarily does not violate
18 U.S.C. § 209 by licensing the patent
rights to a private entity and receiving royalty
payments in exchange, because the payments are
not "compensation for [the employee. s] services" in
the government.
September 7, 2000 |
CONSTITUTIONALITY OF 18 U.S.C. § 1120
esc52
|
Congress has
clear constitutional authority to proscribe killings
committed by escaped federal inmates serving life
sentences, as provided in 18 U.S.C. § 1120,
where the killings facilitate the escape or the
avoidance of recapture.
Congress's penological and custodial
interests in ensuring the incapacitation of life-sentenced
federal inmates provide compelling support for the constitutionality
of 18 U.S.C. § 1120 even when it is applied with
respect to a post-escape killing that is not related to
the escape or subsequent efforts to avoid recapture.
August 31, 2000 |
WHETHER A FORMER PRESIDENT MAY
BE INDICTED AND TRIED FOR THE SAME OFFENSES FOR WHICH
HE WAS IMPEACHED BY THE HOUSE AND ACQUITTED BY THE SENATE
expresident
|
The Constitution
permits a former President to be indicted and tried
for the same offenses for which he was impeached
by the House of
Representatives and acquitted by the Senate.
August 18, 2000 |
DIVISION OF
POWER AND RESPONSIBILITIES BETWEEN THE CHAIRPERSON OF
THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD AND
THE BOARD AS A WHOLE
chemsafetyboardopinionfinal
|
Under
the Clean Air Act Amendments of 1990 and general
principles governing the operation of boards,
the day-to-day administration of Chemical Safety
and Hazard Investigation Board matters and execution
of Board policies are the responsibilities of
the chairperson, subject to Board oversight,
while substantive policymaking and regulatory
authority is vested in the Board as a whole.
In disputes over the allocation of authority in specific
instances, the Board's decision controls, as long as
it is not arbitrary or unreasonable.
June 26, 2000 |
APPLICABILITY OF THE POST-EMPLOYMENT
RESTRICTIONS OF 18 U.S.C. § 207(c) TO ASSIGNEES
UNDER THE INTERGOVERNMENTAL PERSONNEL ACT
doe207
|
The post-employment
restrictions of 18 U.S.C. § 207(c) apply
to persons who are assigned from a university
or a state or local government to the Department
of Energy under the Intergovernmental Personnel
Act and are compensated at or above the ES-5
level, except for those who occupy positions
ordinarily below the ES-5 level and who receive
salaries only from the detailing employers, with
the federal agency reimbursing those employers
for an amount less than an ES-5 salary.
June 26, 2000 |
EPA ASSESSMENT OF PENALTIES
AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND
STORAGE TANK REQUIREMENTS OF THE RESOURCE CONSERVATION
AND RECOVERY ACT
ustop2
|
The Resource
Conservation and Recovery Act authorizes the
Environmental Protection Agency to assess penalties
against federal agencies for violations of RCA's
underground storage tank provisions. EPA's underground
storage tank field citation procedures do not
violate RCRA or the Constitution.
June 14, 2000 |
AUTHORITY FOR MILITARY POLICE
TO ISSUE TRAFFIC CITATIONS TO MOTORISTS ON BOLLING AIR
FORCE BASE
bolling_final
|
Military
Police have the authority to issue citations,
enforceable in federal court, to motorists who
violate traffic laws on Bolling Air Force Base.
Congress has given the General
Services Administration limited authority over
military installations for the narrow purpose
of issuing and enforcing the regulations related
to motor vehicle violations.
June 5, 2000 |
APPLICABILITY OF THE FEDERAL
VACANCIES REFORM ACT TO VACANCIES AT THE INTERNATIONAL
MONETARY FUND AND THE WORLD BANK
imfrevised
|
The United
States Executive Director and the Alternate United
States Director at the International Monetary
Fund and the World Bank are not part of an Executive
agency, and therefore vacancies in those offices
are not covered by the Federal Vacancies Reform
Act.
May 11, 2000 |
CONTINUATION OF FEDERAL PRISONER
DETENTION EFFORTS IN THE FACE OF A USMS APPROPRIATION
DEFICIENCY
usmsfinal
|
It is doubtful
that the "authorized by law" exception to the Antideficiency
Act would allow the United States Marshals Service
to continue to provide prisoner detention-related
functions during a deficiency in its FPD budget,
but it is likely that the "emergency" exceptions
set forth in § 1342 and § 1515 of that
statute would apply, in many, if not all, circumstances.
April 5, 2000 |
DATE OF APPOINTMENT FOR PURPOSES
OF CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
appointdate
|
The appointment
date for appointment of an interim United States
Attorney is established by the Attorney General's
intent, and here the form of order used by the Attorney
General expressly states her intent - that the appointment
is made upon satisfaction of the conditions that
the office is vacant and the designee takes the
oath of office.
March 16, 2000 |
ENFORCEMENT OF INA EMPLOYER
SANCTIONS PROVISIONS AGAINST FEDERAL GOVERNMENT ENTITIES
ina274afinal
|
Section 274A
of the INA, which establishes employer verification
requirements and authorizes the INS to take enforcement
actions against employers for failure to comply
with those requirements, authorizes imposition of
employer sanctions against federal government entities.
The Immigration and Naturalization Service
can exercise this enforcement authority against persons
and entities within all three branches in a manner consistent
with the Constitution.
March 15, 2000 |
STARTING DATE FOR CALCULATING
THE TERM OF AN INTERIM UNITED STATES ATTORNEY
termstart
|
Under 28 U.S.C. § 546(c)(2),
the 120-day term of an interim United States Attorney
appointed by the Attorney General is calculated
from the date of the appointment, rather than the
date on which the vacancy occurred.
March 10, 2000 |
LEGAL EFFECTIVENESS OF A PRESIDENTIAL
DIRECTIVE, AS COMPARED TO AN EXECUTIVE ORDER
predirective
|
A presidential
directive has the same substantive legal effect
as an executive order. It is the substance of the
presidential action that is determinative, not the
form of the document conveying that action. Both
an executive order and a presidential directive
remain effective upon a change in administration,
unless otherwise specified in the document, and
both continue to be effective until subsequent presidential
action is taken.
January 29, 2000 |
AUTHORITY OF THE ADVISORY BOARD
FOR CUBA BROADCASTING TO ACT IN THE ABSENCE OF A PRESIDENTIALLY
DESIGNATED CHAIRPERSON
abcbopin
|
The Advisory
Board for Cuba Broadcasting has the authority
to meet and to conduct business without a presidentially
designated chairperson or an acting chairperson.
The Advisory Board for Cuba Broadcasting does
not have the authority to elect an acting chairperson.
January 4, 2000 |
APPLICABILITY OF 18 U.S.C. § 205(A)(2)
TO REPRESENTATION BEFORE NON-FEDERAL AGENCY
agencyfinal
|
18 U.S.C. § 205(a)(2),
which bars a Federal employee from acting as an
agent or attorney before any "agency . . . in connection
with any covered matter in which the U.S. is a party
or has a direct and substantial interest," applies
only to Federal agencies and does not apply to state
agencies or agencies of the District of Columbia.
January 3, 2000 |
