MEANING OF "TEMPORARY" WORK
UNDER 8 U.S.C. § 1101(A)(15)(H)(II)(B)
dhs-temp-worker.pdf |
A regulation proposed by United States
Citizenship and Immigration Services providing that "temporary" work
under the H-2B visa program "[g]enerally . . . will
be limited to one year or less, but . . . could last
up to 3 years" is based on a permissible reading of
8 U.S.C. § 1101(a)(15)(H)(ii)(b) and is consistent
with the 1987 opinion of this Office addressing the
meaning of "temporary" work under 8 U.S.C. § 1101(a)(15)(H)(ii)(a).
December 18, 2008 |
CONSTITUTIONALITY OF THE OLC
REPORTING ACT OF 2008
olc-reporting-act.pdf |
S. 3501, the “OLC Reporting Act of 2008,” which
would require the Department of Justice to report to
Congress on a wide range of confidential legal advice
that is protected by constitutional privilege, is unconstitutional.
The bill raises very serious policy concerns because it
would undermine the public interest in confidential advice
and information sharing that is critical to informed and
effective Government decisionmaking.
November 14, 2008 |
REQUESTS FOR INFORMATION UNDER
THE ELECTRONIC COMMUNICATIONS PRIVACY ACT
fbi-ecpa-opinion.pdf |
The Federal Bureau of Investigation may issue a national
security letter to request, and a provider may disclose,
only the four types of information—name, address,
length of service, and local and long distance toll
billing records—listed in 18 U.S.C. § 2709(b)(1).
The term "local and long distance toll billing records" in
section 2709(b)(1) extends to records that could be
used to assess a charge for outgoing or incoming calls,
whether or not the records are used for that purpose,
and whether they are linked to a particular account
or kept in aggregate form.
Before issuance of a national security letter, a provider
may not tell the FBI whether that provider serves a
particular customer or telephone number, unless the
FBI is asking only whether the number is assigned,
or belongs, to that provider.
November 5, 2008 |
SCOPE OF EXEMPTION UNDER FEDERAL
LOTTERY STATUTES FOR LOTTERIES CONDUCTED BY A STATE ACTING
UNDER THE AUTHORITY OF STATE LAW
state-conducted-lotteries101608.pdf |
The statutory exemption for lotteries "conducted
by a State" requires that the State exercise actual
control over all significant business decisions made
by the lottery enterprise and retain all but a de minimis
share of the equity interest in the profits and losses
of the business, as well as the rights to the trademarks
and other unique intellectual property or essential
assets of the State's lottery.
It is permissible under the exemption for a State to contract
with private firms to provide goods and services necessary
to enable the State to conduct its lottery, including
management services, as discussed in the opinion.
October 16, 2008 |
ENFORCEABILITY OF CERTAIN AGREEMENTS
BETWEEN THE DEPARTMENT OF THE TREASURY AND GOVERNMENT
SPONSORED ENTERPRISES
treasury-gse-ltr-opinion.pdf |
The Amended and Restated Senior Preferred
Stock Purchase Agreements between the United States
Department of the Treasury and the Federal National
Mortgage Association and the Federal Home Loan Mortgage
Corporation, according to their terms, would create
rights enforceable through actions brought in the United
States Court of Federal Claims in accordance with the
ordinary rules and procedures governing litigation
in that Court.
September 26, 2008 |
APPLICABILITY OF 18 U.S.C. § 207(f) TO PUBLIC RELATIONS ACTIVITIES UNDERTAKEN FOR A FOREIGN CORPORATION CONTROLLED BY A FOREIGN GOVERNMENT
commerceoppost-employment.pdf |
A foreign corporation is a “foreign entity” under 18 U.S.C. § 207(f) if it exercises sovereign authority or functions de jure or de facto. A former official’s proposed activities are not prohibited by section 207(f)(1) if the former official does not provide those services on behalf of a “foreign entity,” regardless of whether the former official’s services incidentally benefit the foreign entity’s interests. Where the former official does provide services on behalf of a “foreign entity,” the proposed public relations and media activities would fall within the scope of section 207(f)(1) if the former official acts with the requisite intent to influence a decision of an officer or employee of the United States Government. August 13, 2008 |
SCOPE OF THE DEFINITION OF “VARIOLA
VIRUS” UNDER THE INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004
variola-virus.pdf |
The definition of “variola virus” in
18 U.S.C. § 175c does not include other naturally
occurring orthopoxviruses, such as cowpox and vaccinia,
but is rather limited to viruses that cause smallpox
or are engineered, synthesized, or otherwise produced
by human manipulation from the variola major virus
or its components.
July 24, 2008 |
ASSERTION OF EXECUTIVE PRIVILEGE
CONCERNING THE SPECIAL COUNSEL'S INTERVIEWS OF THE VICE
PRESIDENT AND SENIOR WHITE HOUSE STAFF
agletterepclaim07-15-08final.pdf |
It is legally permissible for the President
to assert executive privilege in response to a congressional
subpoena for reports of Department of Justice interviews
with the Vice President and senior White House staff
taken during the Department's investigation by Special
Counsel Patrick Fitzgerald into the disclosure of Valerie
Plame Wilson's identity as an employee of the Central
Intelligence Agency.
July 15, 2008 |
ASSERTION OF EXECUTIVE PRIVILEGE
OVER COMMUNICATIONS REGARDING EPA'S OZONE AIR QUALITY
STANDARDS AND CALIFORNIA'S GREENHOUSE GAS WAIVER REQUEST
ozonecalwaiveragletter.pdf |
The President may lawfully assert executive
privilege in response to congressional subpoenas seeking
communications within the Executive Office of the President
or between the Environmental Protection Agency and
the EOP concerning EPA's promulgation of a regulation
revising national ambient air quality standards for
ozone or EPA's decision to deny a petition by California
for a waiver from federal preemption to enable it to
regulate greenhouse gas emissions from motor vehicles.
June 19, 2008 |
ADMISSIBILITY IN FEDERAL COURT
OF ELECTRONIC COPIES OF PERSONNEL RECORDS
electronic-personnel-records.pdf |
Federal official personnel and civil
service retirement records that have been converted
from paper to electronic format should be admissible
in evidence in federal court under the Business Records
Act, 28 U.S.C. § 1732, and should also qualify as "public
records" admissible under Rule 1005 of the Federal
Rules of Evidence.
Electronic versions of particular personnel records which,
pursuant to statute or regulation, must be notarized,
certified, signed, or witnessed, may be authenticated
under Rules 901 and 902 of the Federal Rules of Evidence.
Converting such documents to electronic format should
not affect their admissibility under hearsay rules.
May 30, 2008 |
AUTHORITY OF ENVIRONMENTAL
PROTECTION AGENCY TO HOLD EMPLOYEES LIABLE FOR NEGLIGENT
LOSS, DAMAGE, OR DESTRUCTION OF GOVERNMENT PERSONAL PROPERTY
epa-property-opinion052808.pdf |
The Environmental Protection Agency may
hold its employees liable for the negligent loss, damage,
or destruction of government personal property or for
the unauthorized personal use of agency-issued cell
phones.
May 28, 2008 |
VALIDITY OF THE FOOD, CONSERVATION,
AND ENERGY ACT OF 2008
validity-farm-bill-energy-act-2008.pdf |
Where a title in the version of the
Food, Conservation, and Energy Act of 2008 passed by
both Houses of Congress was inadvertently omitted from
the enrolled bill that was presented to and vetoed
by the President, the version of the bill presented
to the President became law upon Congress’s successful
override of the President’s veto.
May 23, 2008 |
PROMOTIONS OF THE JUDGE ADVOCATES
GENERAL UNDER SECTION 543 OF THE NATIONAL DEFENSE AUTHORIZATION
ACT FOR FISCAL YEAR 2008
dod-op-re-tjags-041408.pdf |
Section 543 of the
National Defense Authorization Act for Fiscal Year
2008 does not automatically advance incumbent Judge
Advocates General to a three star general officer
grade, but rather such promotion requires a separate
appointment by the President, by and with the advice
and consent of the Senate.
The incumbent Judge Advocates General may continue
to serve out their full terms in their present two
star grades, though the President may nominate them
for promotion to the higher grade at any time, if he
so chooses.
April 14, 2008 |
OFFICE OF GOVERNMENT ETHICS
JURISDICTION OVER THE SMITHSONIAN INSTITUTION
smithsonian-op-022908.pdf |
The authority of
the Office of Government Ethics to administer the
Executive Branch ethics program under the Ethics
in Government Act of 1978 and other statutes does
not extend to the Smithsonian Institution or its
personnel.
February 29, 2008 |
PAYMENT OF BACK WAGES TO ALIEN
PHYSICIANS HIRED UNDER H-1B VISA PROGRAM
payment-alien-physicians-h1b-visa.pdf |
The statute authorizing
the H-1B visa program does not waive the federal
Government’s sovereign immunity. Therefore,
an administrative award of back wages to alien physicians
hired by the Department of Veterans Affairs under
the program is barred by sovereign immunity.
February 11, 2008 |
CONSTITUTIONALITY OF DIRECT
REPORTING REQUIREMENT IN SECTION 802(e)(1) OF THE IMPLEMENTING
RECOMMENDATIONS OF THE 9/11 COMMISSION ACT OF 2007
privacy-officer-report.pdf |
Section 802(e)(1)
of the Implementing Recommendations of the 9/11
Commission Act of 2007 does not prohibit DHS or
OMB officials from reviewing, in accordance with
established Executive Branch review and clearance
procedures, the DHS Chief Privacy Officer's draft
section 802 reports before the reports are transmitted
to Congress.
Section 802(e)(1) is best interpreted not to prohibit
DHS and OMB officials from commenting on a draft CPO
report where the CPO is permitted to, and in fact does,
transmit to Congress a final report that does not reflect
the comments or amendments from such officials.
Section 802(e)(1)'s direct reporting requirement need
not be enforced in circumstances where its application
would require the CPO to ignore the results of the
President's review, through DHS and OMB, of a particular
report. In such circumstances, the statute must yield
to the President's exercise of his constitutional authority
to supervise subordinate Executive Branch officers
and their communications with Congress.
January 29, 2008 |
CONSTITUTIONALITY OF FEDERAL
GOVERNMENT EFFORTS IN CONTRACTING WITH WOMEN-OWNED BUSINESSES
sba-hearing-papez-testimony.pdf |
This statement presents the Justice
Department's views on the federal Government's efforts
to contract with women-owned businesses in a manner
consistent with the Constitution and federal statutes.
Because the Justice Department's position on federal
contracting programs that employ gender preferences
is based on constitutional and legal standards that
are not specific to the program addressed by the
recently published Small Business Administration
rule, the statement focuses on the legal standards
that govern the Department's approach to such programs
generally.
January 16, 2008 |
