ASSERTION
OF EXECUTIVE PRIVILEGE WITH RESPECT TO PROSECUTORIAL DOCUMENTS
executiveprivilege.htm
|
Executive
privilege may properly be asserted in response to
a congressional subpoena seeking prosecutorial decisionmaking
documents of the Department of Justice.
December 10, 2001 |
APPLICATION
OF FEDERAL ADVISORY COMMITTEE ACT TO NON-GOVERNMENTAL
CONSULTATIONS
faca_militarycommissions.pdf |
The
Federal Advisory Committee Act does not apply to
the consultations that the Department of Defense
plans to conduct with various individuals from outside
the government regarding the policies and procedures
that DOD is developing for military commissions.
December 7, 2001 |
APPLICATION OF PRIVACY
ACT CONGRESSIONAL-DISCLOSURE EXCEPTION TO DISCLOSURES
TO RANKING MINORITY MEMBERS
privacy_act_opinion.pdf |
The congressional-disclosure
exception to the disclosure prohibition of the Privacy
Act generally does not apply to disclosures to committee
ranking minority members.
December 5, 2001 |
CONSTITUTIONAL
ISSUES RAISED BY COMMERCE, JUSTICE AND STATE APPROPRIATIONS
BILL
cjsflanigan.pdf
|
A
provision prohibiting the use of appropriated
funds for United Nations peacekeeping missions
involving the use of United States Armed Forces
under the command of a foreign national unconstitutionally
constrains the President's authority as Commander
in Chief and his authority over foreign affairs.
A provision prohibiting the use of
appropriated funds for cooperation with, assistance
to, or other support for the International Criminal
Court would be unconstitutional insofar as it
would prohibit the President from providing support
and assistance to the ICC under any and all circumstances,
but it can be applied in a manner consistent
with the President's constitutional authority
in the area of foreign affairs.
November 28, 2001 |
LEGALITY OF THE USE OF
MILITARY COMMISSIONS TO TRY TERRORISTS
pub-millcommfinal.pdf |
The President possesses
inherent authority under the Constitution, as Chief
Executive and Commander in Chief of the Armed Forces
of the United States, to establish military commissions
to try and punish terrorists captured in connection
with the attacks of September 11 or in connection with
U.S. military operations in response to those attacks.
November 6, 2001 |
AUTHORITY
OF THE DEPUTY ATTORNEY GENERAL UNDER EXECUTIVE ORDER 12333
25.htm
|
The
Deputy Attorney General has authority to approve
searches for intelligence purposes that are conducted
under section 2.5 of Executive Order 12333.
November 5, 2001 |
APPLICATION
OF 18 U.S.C. § 208 TO TRUSTEES OF PRIVATE TRUSTS
section208trustee.htm
|
Although
a trustee of a private trust, solely by virtue of
his capacity as a trustee, should not be deemed
to have a personal financial interest in the property
of the trust, a trustee of a private trust may have
such an interest under certain circumstances. Further,
a trustee of a private trust also should be considered
to be serving in the capacity of a "trustee" of
an "organization" for purposes of 18 U.S.C. § 208(a).
November 2, 2001 |
DURATION OF
THE TERM OF A MEMBER OF THE CIVIL RIGHTS COMMISSION
crcterm.htm
|
A
member of the Civil Rights Commission, appointed
when a predecessor died before the end of his term,
serves only the remainder of her predecessor’s
term.
October 31, 2001 |
DISCLOSURE OF CONFLICTS
OF INTEREST OF MEMBERS OF FDA ADVISORY PANELS
fda-op.pdf |
Special
government employees who serve as members of a Food
and Drug Administration advisory panel and who seek
waivers of conflicts of interest must publicly disclose
any conflicts of interest they may have that relates
to the work to be undertaken by the panel. The FDA
may not waive a panel member's conflict until the
panel member makes the public disclosure.
The FDA has considerable discretion to determine how detailed
the panel member's disclosure must be, so long as such
disclosure is adequate to inform the public of the nature
and magnitude of the conflict.
October 5, 2001 |
CHECKING
NAMES OF PROHIBITED PERSONS AGAINST RECORDS IN THE NICS
AUDIT LOG CONCERNING ALLOWED TRANSFERS
nicswatchlist31.htm
|
The
Federal Bureau of Investigation may check whether
names of individuals known to be prohibited from
purchasing a firearm under 18 U.S.C. § 922(g)(5)
appear in records concerning allowed transfers
in the audit log of the National Instant Criminal
Background Check System in the course of auditing
the performance of the NICS, and may share the
results of such searches with the Bureau of Alcohol,
Tobacco, and Firearms.
October 1, 2001 |
THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS
AND NATIONS SUPPORTING THEM
warpowers925
|
The President
has broad constitutional power to take military
action in response to the terrorist attacks on
the United States on September 11, 2001. Congress
has acknowledged this inherent executive power
in both the War Powers Resolution and the Joint
Resolution passed by Congress on September 14,
2001.
The President has constitutional
power not only to retaliate against any person,
organization, or State suspected of involvement
in terrorist attacks on the United States, but
also against foreign States suspected of harboring
or supporting such organizations.
The President may deploy military
force preemptively against terrorist organizations
or the States that harbor or support them, whether
or not they can be linked to the specific terrorist
incidents of September 11.
September 25, 2001 |
POST-EMPLOYMENT RESTRICTION
OF 12 U.S.C. § 1812(e)
otspost2.pdf |
A Director
of the Office of Thrift Supervision who resigns
at the President's request is not subject to
the two-year restriction, under 12 U.S.C. § 1812(e),
against working for an insured depository institution
or a depository institution holding company.
September 4, 2001 |
PRESIDENT’S
AUTHORITY TO MAKE A RECESS APPOINTMENT TO THE NATIONAL
LABOR RELATIONS BOARD
nlrbrecess.htm
|
The
President may make a recess appointment to the
National Labor Relations Board of a person whose
term as a Senate-confirmed member expired during
the current recess of the Senate.
August 31, 2001 |
DESIGNATION OF ACTING
ASSOCIATE ATTORNEY GENERAL
vra2.pdf
|
Phil Perry, who
has already been designated as the first assistant
to the office of the Associate Attorney General
by virtue of his appointment as the Principal Deputy
Associate Attorney General, may, consistent with
the Vacancies Reform Act of 1998, serve as the Acting
Associate Attorney General even though he was not
the first assistant when the vacancy occurred.
Because the President has not designated another
person as the Acting Associate Attorney General
under the Vacancies Reform Act, Mr. Perry, as the
Principal Deputy, is required to perform the functions
and duties of the office of the Associate Attorney
General in an acting capacity. .
August 7, 2001 |
PRESIDENT'S
AUTHORITY TO REMOVE THE CHAIRMAN OF THE CONSUMER PRODUCT
SAFETY COMMISSION
cpscchairmanremoval.htm
|
The
Chairman of the Consumer Product Safety Commission
serves at the pleasure of the President and the
President has the constitutional authority to
remove her for any reason.
Upon her removal, the Chairman will
still continue to serve as a Commissioner, and,
under, 15 U.S.C. § 2053(d), the Vice-Chairman
of the Commission will assume the post of Chairman.
July 31, 2001 |
CONSTITUTIONALITY
OF THE ROHRABACHER AMENDMENT
72501op.pdf
|
The
Rohrabacher Amendment, which imposes a funding restriction
on the Justice Department’s ability to litigate
matters relating to the Treaty of Peace with Japan,
violates established separation of powers principles
and, therefore, is unconstitutional.
July 25, 2001 |
WHETHER PHYSICIAN-ASSISTED
SUICIDE SERVES A "LEGITIMATE MEDICAL PURPOSE" UNDER DRUG
ENFORCEMENT ADMINISTRATION REGULATIONS
suicide-mem.pdf |
A physician's
assisting in a patients suicide even in a manner
permitted by State law, is not a "legitimate medical
purpose" within the meaning of a Drug Enforcement
Agency regulation, and accordingly dispensing controlled
substances for this purpose violates the Controlled
Substances Act, which the DEA regulation implements.
June 27, 2001 |
DIRECT AID
TO FAITH-BASED ORGANIZATIONS UNDER CHARITABLE CHOICE PROVISIONS
OF H.R. 7 THE COMMUNITY SOLUTIONS ACT OF 2001
olc4brs97.htm
|
Congress
may, consistent with the Establishment Clause, extend
the religious exemptions under title VII of the
Civil Rights Act of 1964 to faith-based organizations
receiving direct payments of federal money under
the charitable choice provisions set forth in section
1994A of H.R. 7, the Community Solutions Act of
2001.
The fact that a faith-based organization
is organized as a tax-exempt, nonprofit entity
under section 501(c)(3) of the Internal Revenue
Code does not affect the organization’s
ability to invoke the religious exemptions under
sections 702(a) and 703(e)(2) of the Civil Rights
Act of 1964.
June 25, 2001 |
INDIRECT AID
TO FAITH-BASED ORGANIZATIONS UNDER CHARITABLE CHOICE PROVISIONS
OF H.R. 7, THE COMMUNITY SOLUTIONS ACT
olc4brs95.htm
|
The
Establishment Clause of the First Amendment does
not necessitate that the charitable choice provisions
of H.R. 7, the Community Solutions Act, require
faith-based organizations receiving indirect payments
of federal money to segregate such funds into an
account separate from the organizations' general
operating accounts.
June 22, 2001 |
APPLICABILITY OF POST-EMPLOYMENT RESTRICTIONS IN 18 U.S.C. § 207
TO A FORMER GOVERNMENT OFFICIAL REPRESENTING A FORMER
PRESIDENT OR VICE PRESIDENT IN CONNECTION WITH THE
PRESIDENTIAL RECORDS ACT
post-employment-restrictions.pdf |
18 U.S.C. § 207 would not prohibit a former government official from representing a former
President or former Vice President in connection with his role under the Presidential Records Act, 44
U.S.C. §§ 2201-2207 (1994).
June 20, 2001 |
AUTHORITY OF
STATE OFFICIALS TO SHARE MOTOR VEHICLE RECORD INFORMATION
WITH THE DEPARTMENT OF DEFENSE OR ITS CONTRACTORS
motor-vehicle-record-info-052401.pdf
|
The
Drivers' Privacy Protection Act permits state Department
of Motor Vehicles offices to release covered information
in motor vehicle records to both the Department
of Defense and private entities acting on DoD's
behalf, provided that the records are used for a
statutorily approved purpose of DoD, such as military
recruitment.
May 24, 2001 |
EMOLUMENTS
CLAUSE AND WORLD BANK
smithsonianwb.htm
|
An
international organization in which the United States
participates, such as the International Bank for
Reconstruction and Development, is not a "foreign
State" under the Emoluments Clause, U.S. Const.
art. I, § 9, cl. 8.
May 24, 2001 |
OBLIGATION TO SELL GOVERNORS
ISLAND
gov-island-op2.pdf |
The
statutory requirement that the Administrator of
General Services sell Governors Island at fair market
value continues to apply notwithstanding the President's
subsequent reservation of Governors Island as a
national monument under the Antiquities Act.
April 24, 2001 |
REGULATION
OF AN INMATE'S ACCESS TO THE MEDIA
mediaaccessinmatesop.htm
|
So
long as the Bureau of Prisons' decision to regulate
an inmate's access to the media is reasonably related
to the legitimate penological interests articulated
in the applicable regulations, the Bureau of Prisons
may bar face-to-face interviews or videotaped interviews
with an inmate, or place other reasonable conditions
and restrictions on such interviews.
April 13, 2001 |
AUTHORITY
OF THE PRESIDENT TO REMOVE THE STAFF DIRECTOR OF THE CIVIL
RIGHTS COMMISSION AND APPOINT AN ACTING STAFF DIRECTOR
StaffDirector.htm
|
The
President has the authority to remove the Staff
Director of the United States Commission on Civil
Rights and to appoint an Acting Staff Director.
March 30, 2001
|
APPLICABILITY
OF APA NOTICE AND COMMENT PROCEDURES TO REVOCATION OF
DELEGATION OF AUTHORITY
censusregrevocationop.htm
|
The
Secretary of Commerce may revoke a delegation to
the Director of the Census without submitting the
revocation to the notice and comment procedures
of the Administrative Procedure Act, notwithstanding
the fact that the Secretary voluntarily elected
to follow those procedures in issuing the delegation
February 14, 2001 |
APPLICABILITY
OF THE ANTIDEFICIENCY ACT TO A VIOLATION OF A CONDITION
OR INTERNAL CAP WITHIN AN APPROPRIATION
ada-jan-19.pdf
|
Any
expenditure of funds in violation of a condition
or internal cap in an appropriations act would generally
constitute a violation of the Antideficiency Act.
January 19, 2001
|
GENERAL SERVICES
ADMINISTRATION USE OF GOVERNMENT FUNDS FOR ADVERTISING
gsafinal.htm
|
Section
632 of the Treasury, Postal Service, Executive Office
of the President, and General Government Appropriations
Act of 2000, which prohibits the use of appropriated
funds for "publicity or propaganda purposes," does
not prohibit the General Services Administration
from using appropriated funds to support a reasonable
and carefully-controlled advertising campaign that
serves the goal of informing other federal agencies
about the products and services it offers.
The principles set forth in some
opinions of the Comptroller General addressing
limitations on advertising by federal agencies
beyond the "publicity or propaganda" rider would
not prohibit the GSA's advertisements to other
agencies.
January 19, 2001 |
INVESTMENT
OF FEDERAL TRUST FUNDS FOR CHEYENNE RIVER AND LOWER BRULE
SIOUX
siouxtrustop.htm
|
Congress
intended the term "interest" in Title VI of the
Water Resources Development Act of 1999 to have
its usual and customary meaning: the coupon rate
of the debt obligation.
The universe of "available obligations" under
Title VI of the Water Resources Development Act
of 1999 includes obligations of government corporations
and government-sponsored entities whose charter
statutes provide that their obligations are lawful
investments for federal trust funds.
The fiduciary duty owed pursuant
to a federal trust fund is defined and limited
by the terms of the statute creating the trust.
January 19, 2001 |
NOAA CORPS
ELIGIBILITY FOR PROFESSIONAL LIABILITY INSURANCE COSTS
REIMBURSEMENT
noaaopfin3.htm
|
Members
of the NOAA Commissioned Corps may constitute qualified
employees eligible for professional liability insurance
cost reimbursement under federal statute if they
otherwise satisfy the statutory definition for "law
enforcement officer," "supervisor," or "management
official."
January 19, 2001 |
"COMMUNICATIONS" UNDER
18 U.S.C. § 207
207cfinal.htm
|
A
former high-ranking government official proposed
establishing a consulting firm . as a sole proprietorship,
a partnership, or a corporation . in which he would
be one of a very few employees, or perhaps even
the sole employee. If, as hypothesized, the consulting
firm prepares a report on behalf of certain clients,
which is submitted directly to his former agency
by the consulting firm or, with the former official.
s knowledge, by his client with the report bearing
the consulting firm. s name, and it is expected
by the former official that his identity as the
author of the report may be commonly known throughout
the industry and at his former agency, he would
be making a communication prohibited by 18 U.S.C. § 207(c).
January 19, 2001 |
AUTHORITY
TO SOLICIT GIFTS
giftsolicitationoge.htm
|
The
express statutory authority to accept gifts, contained
in section 403(b)(1) of the Office of Government
Ethics Authorization Act of 1996, includes the implied
authority to solicit gifts.
January 19, 2001 |
EFFECT OF
THE ALIENAGE RESTRICTION IN THE PERSONAL RESPONSIBILITY
AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 ON THE
PROVISION OF STAFFORD ACT ASSISTANCE IN THE FEDERATED
STATES OF MICRONESIA AND THE REPUBLIC OF MARSHALL ISLANDS
femaopinion011901final.htm
|
Congress
did not intend the alienage restriction set forth
in title IV of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 to apply
extraterritorially. For this reason, the provision
of Stafford Act assistance on the Federated States
of Micronesia and the Republic of Marshall Islands
by the Federal Emergency Management Agency would
not violate the PRWORA.
January 19, 2001 |
AUTHORITY
OF THE OFFICE OF GOVERNMENT ETHICS TO ISSUE TOUHY REGULATIONS
touhy7final.htm
|
OGE
may not issue Touhy regulations pursuant to 5
U.S.C. § 301 because OGE is not an "executive
department" within the meaning of § 301.
OGE may issue Touhy regulations,
insofar as they concern the production of agency
records, pursuant to 44 U.S.C. § 3102 of
the Federal Records Act.
OGE may issue regulations concerning
the appearance of agency employees as witnesses
on official matters, pursuant to the implied
authority of OGE. s organic statute, 5 U.S.C.
app. § 401.
January 18, 2001 |
REIMBURSING
TRANSITION-RELATED EXPENSES INCURRED BEFORE THE ADMINISTRATOR
OF GENERAL SERVICES ASCERTAINED WHO WERE THE APPARENT
SUCCESSFUL CANDIDATES FOR THE OFFICE OF PRESIDENT AND
VICE PRESIDENT
reimbursementoftransitioncostsfinal
|
The
General Services Administration can reimburse the
Bush/Cheney transition for legitimate transition-related
expenses, as contemplated by the Presidential Transition
Act of 1963, that were incurred after the general
election on November 7, 2000 but prior to December
14, 2000, when the Administrator of GSA ascertained
that George W. Bush and Richard Cheney were the
apparent successful candidates for the office of
President and Vice President
January 17, 2001 |
