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Competitive Bidding Requirements Under the Federal-Aid Highway Program

(Posted 2014-March-13)

The competitive bidding requirement of 23 U.S.C. § 112 imposes, in addition to procedural rules dictating the process by which bids are awarded, a substantive limitation on state or local bidding requirements that are unrelated to the bidder’s performance of the necessary work.

Section 112’s competitive bidding requirement does not preclude any and all state or local bidding or contractual restrictions that have the effect of reducing the pool of potential bidders for reasons unrelated to the performance of the necessary work. Rather, section 112 affords the Federal Highway Administration discretion to assess whether a particular state or local requirement unduly limits competition.

Generally, state or local government requirements that eliminate or disadvantage a class of potential responsible bidders to advance objectives unrelated to the efficient use of federal funds or the integrity of the bidding process are likely to unduly impede competition in contravention of the substantive component of section 112’s competitive bidding requirement.

2012-November-16Whether the United States Department of Labor Has the Authority to Control the Disclosure of Federal Employee Compensation Act Records Held by the United States Postal Service
(Posted 2013-July-19)

The Federal Employee Compensation Act gives the Department of Labor the authority to control and limit the disclosure of FECA records held by the United States Postal Service, and DOL's FECA regulations prohibit USPS from disclosing FECA records in a manner inconsistent with DOL's Privacy Act routine uses.

The Labor Department's regulatory regime for FECA records is consistent with and furthers the purposes of the Privacy Act.

Neither the Postal Reorganization Act nor the National Labor Relations Act authorizes USPS to control the disclosure of FECA records.

2012-June-19Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious
(Posted 2012-July-05)
Executive privilege may properly be asserted in response to a congressional subpoena seeking internal Department of Justice documents generated in the course of the deliberative process concerning the Department's response to congressional and related media inquiries into Operation Fast and Furious.
2012-May-29Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
(Posted 2012-November-14)
Under 42 U.S.C. § 13031 – a provision of the Victims of Child Abuse Act of 1990 – all covered professionals who learn of suspected child abuse while engaged in enumerated activities and professions on federal land or in federal facilities must report that abuse, regardless of where the suspected victim is cared for or resides.
The fact that a patient has viewed child pornography may “give reason to suspect that a child has suffered an incident of child abuse” under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in the pornography.
2012-April-03Whether Reservists Who Otherwise Qualify for Leave Under Both 5 U.S.C. § 6323(a) and 5 U.S.C. § 6323(b) Must Exhaust Available Leave Under Section 6323(b) Before Taking Leave Under Section 6323(a)
(Posted 2013-March-12)
A reservist who performs military service that qualifies for leave under both 5 U.S.C. §§ 6323(a) and 6323(b) may elect to take leave under section 6323(a) without first using all of his or her available leave under section 6323(b).
2012-March-27The Anti-Deficiency Act Implications of Consent by Government Employees to Online Terms of Service Agreements Containing Open-Ended Indemnification Clauses
(Posted 2012-November-15)
Traditional principles of contract law govern the standard for consent to an online terms of service agreement, and, as a result, consent to such an agreement turns on whether the web user had reasonable notice of and manifested assent to the online agreement.
A government employee with actual authority to contract on behalf of the United States violates the Anti-Deficiency Act by entering into an unrestricted, open-ended indemnification agreement on behalf of the government.
A government employee who lacks authority to contract on behalf of the United States does not violate the Anti-Deficiency Act by consenting to an agreement, including an agreement containing an unrestricted, open-ended indemnification clause, because no binding obligation on the government was incurred.
2012-March-05State and Local Deputation of Federal Law Enforcement Officers During Stafford Act Deployments
(Posted 2012-March-28)
Where federal law enforcement officers have been deployed pursuant to the Stafford Act and are properly carrying out federal disaster relief in a local community, they may accept deputation under state laws that expressly authorize them to make state law arrests, where such arrests would bear a logical relationship to or advance the purposes of the Stafford Act deployment.
2012-March-02Whether the General Services Administration May Proceed With an Assisted Acquisition for the Department of Veterans Affairs in Fiscal Year 2012 Using the Department's Fiscal Year 2009/2010 Funds
(Posted 2012-July-18)
The Department of Veterans Affairs properly obligated its FY 2009/2010 funds when it and the General Services Administration signed an interagency agreement in August 2010, and GSA may properly use those funds in FY 2012 to perform its obligations under the interagency agreement.
GSA may use those funds without running afoul of the requirement, developed by the Government Accountability Office, that servicing agencies acting under interagency agreements perform within a “reasonable time.”
2012-January-30State of Residence Requirements for Firearms Transfers
(Posted 2012-February-13)
Section 922(b)(3) of title 18, which forbids federal firearms licensees from selling or delivering any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in . . . the State in which the licensee's place of business is located, cannot be interpreted to define “reside in . . . the State” differently for citizens and aliens.
2012-January-06Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic
Pro Forma Sessions
(Posted 2012-January-12)
The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause.  In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.
2011-November-01Whether Postal Employees Are Entitled to Receive Service Credit, for Purposes of Their Retirement Annuity Under the Federal Employees' Retirement System, for Periods of Employment During Which the United States Postal Service Has Not Made Its Required Employer Contributions
(Posted 2012-February-24)
The Office of Personnel Management may not address the United States Postal Service's failure to make statutorily required retirement contributions by denying its employees accrued service credit under the Federal Employees' Retirement System during their periods of qualifying federal employment.
2011-October-28Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act
(Posted 2011-December-08)
The prohibition in 18 U.S.C. 922(g)(5)(B) applies only to nonimmigrant aliens who must have visas to be admitted to the United States, not to all aliens with nonimmigrant status.  The text of the statute forecloses the interpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and Explosives in an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens.

Whether Proposals by Illinois and New York to Use the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act

(Posted 2011-December-23)

Interstate transmissions of wire communications that do not relate to a “sporting event or contest” fall outside the reach of the Wire Act.

Because the proposed New York and Illinois lottery proposals do not involve wagering on sporting events or contests, the Wire Act does not prohibit them.


Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011

(Posted 2011-September-19)

Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 is unconstitutional as applied to certain activities undertaken pursuant to the President’s constitutional authority to conduct the foreign relations of the United States.

Most, if not all, of the activities of the Office of Science and Technology Policy that we have been asked to consider fall within the President’s exclusive power to conduct diplomacy, and OSTP’s officers and employees therefore may engage in those activities as agents designated by the President for the conduct of diplomacy, notwithstanding section 1340(a).

The plain terms of section 1340(a) do not apply to OSTP’s use of funds to perform its functions as a member of the Committee on Foreign Investment in the United States.

2011-June-20Constitutionality of Legislation Extending the Term of the FBI Director
(Posted 2011-June-22)
It would be constitutional for Congress to enact legislation extending the term of Robert S. Mueller, III, as Director of the Federal Bureau of Investigation.
2011-June-03Applicability of the Foreign Intelligence Surveillance Act's Notification Provision to Security Clearance Adjudications by the Department of Justice Access Review Committee
(Posted 2011-July-27)
The notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act generally applies when the Department of Justice intends to use information obtained from electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee concerning the Department’s revocation of an employee’s security clearance.
Compliance with the notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act in particular Access Review Committee adjudications could raise as–applied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege.
2011-May-03Whether Bills May Be Presented by Congress and Returned by the President by Electronic Means
(Posted 2011-May-27)
The use of electronic means of presentment and return of bills is constitutionally permissible.
The statutes governing the presentment process could be read as encompassing electronic transmission, but that is not necessarily the most natural reading. In light of the novelty of electronic presentment and return, and the need to ensure that the President and Congress, as well as the public, share a common understanding of the means by which these fundamental steps in the lawmaking process may be carried out, we recommend that, before electronic presentment and return might be used, 1 U.S.C. 106, 106a, and 107 be amended to provide expressly for the permissibility of electronic presentment and that the President and Congress reach an agreement, whether by statute or other means, concerning the permissibility of electronic return of bills.
2011-April-08Authority to Employ White House Office Personnel Exempt From the Annual and Sick Leave Act Under 5 U.S.C. 6301(2)(x) and (xi) During an Appropriations Lapse
(Posted 2012-March-08)
White House officials who are exempt from the Annual and Sick Leave Act pursuant to 5 U.S.C. § 6330(2)(x) and (xi) may continue to work during a lapse in the appropriations for their salaries.
2011-April-01Authority to Use Military Force in Libya
(Posted 2011-April-07)
The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.
Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.
2011-February-25Reimbursement or Payment Obligation of the Federal Government Under Section 313(c)(2)(b) of the Clean Water Act
(Posted 2011-March-18)
Section 313(c)(2)(B) of the Clean Water Act does not impose a specific-appropriation requirement for the payment of stormwater assessments. Federal agencies may pay appropriate stormwater assessments from annual,including current, lump-sum appropriations.
2010-December-17Disposition of Proceeds From the Sale of Real Property Acquired With Money From the Social Security Trust Funds
(Posted 2011-January-28)
The General Services Administration is authorized, under section 412 of the Consolidated Appropriations Act of 2005, to convey Social Security Administration buildings that were acquired with money derived from the Social Security Trust Funds and to retain the net proceeds in the Federal Buildings Fund.
2010-December-17The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004
(Posted 2011-May-20)
The rights provided by the Crime Victims Rights Act are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal charges after the filing of a complaint).
2010-November-05Whether the Special Master for Troubled Asset Relief Program Executive Compensation Is a Principal Officer Under the Appointments Clause
(Posted 2010-November-23)
The Special Master for Troubled Asset Relief Program Executive Compensation is not a principal officer for purposes of the Appointments Clause and thus need not be appointed by the President, by and with the advice and consent of the Senate.
2010-October-06Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the Göteborg Award for Sustainable Development
(Posted 2010-October-28)
Neither the Emoluments Clause of the Constitution nor the Foreign Gifts and Decorations Act would bar an employee of the National Oceanic and Atmospheric Administration from accepting the 2010 Göteborg Award for Sustainable Development.
2010-June-28Entitlement to Reservist Differential Pay Under the Preamendment Version of  5 U.S.C. § 5538
(Posted 2010-July-12)
Under the pre-amendment version of 5 U.S.C. § 5538, covered employees may receive reservist differential pay not only for pay periods that occur when they are serving on active duty, but also for those pay periods that fall within the additional period in which they have re-employment rights following the completion of that duty.
2010-June-03Applicability of the Emoluments Clause to Nongovernmental Members of ACUS
(Posted 2010-June-16)
A nongovernmental member of the Administrative Conference of the United States does not occupy an office of profit or trust within the meaning of the Emoluments Clause.
2010-May-03Applicability of Tax Levies Under 26 U.S.C.  § 6334 to Thrift Savings Plan Accounts
(Posted 2010-June-14)
Thrift Savings Plan accounts are subject to federal tax levies under sections 6331 and 6334 of the Internal Revenue Code.
2010-April-27Whether the Criminal Provisions of the Violence Against Women Act Apply to Otherwise Covered Conduct When the Offender and Victim Are the Same Sex
(Posted 2010-June-09)
The criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and victim are the same sex.
2010-February-23Department of Justice Views on the Proposed Constitution Drafted by the Fifth Constitutional Convention of the United States Virgin Islands
(Posted 2010-April-15)
The following memorandum was initially drafted in the Office of Legal Counsel at the request of the Assistant Attorney General for Legislative Affairs.  It analyzes several features of the proposed constitution of the U.S. Virgin Islands (“USVI”), including:  (1) the absence of an express recognition of United States sovereignty and the supremacy of federal law; (2) provisions for a special election on the USVI’s territorial status; (3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry; (4) residence requirements for certain offices; (5) provisions guaranteeing legislative representation of certain geographic areas; (6) provisions addressing territorial waters and marine resources; (7) imprecise language in certain provisions of the proposed constitution’s bill of rights; (8) the possible need to repeal certain federal laws if the proposed USVI constitution is adopted; and (9) the effect of congressional action or inaction on the proposed constitution.
2009-December-16The Attorney General's Authority in Certifying Whether a State Has Satisfied the Requirements for Appointment of Competent Counsel for Purposes of Capital Conviction Review Proceedings
(Posted 2011-March-03)
Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death Penalty Act of 1996, and now codified as chapter 154 of title 28, may be construed to permit the Attorney General to exercise his delegated authority to define the term “competent” within reasonable bounds and independent of the counsel competency standards a State itself establishes, and to apply that definition in determining whether to certify that a state is eligible for special procedures in federal habeas corpus proceedings involving review of state capital convictions.
2009-December-08Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations
(Posted 2010-February-23)
Subsection 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money.
Subsection 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal property (other than money), such as an automobile, so long as the property in question would be received for use directly in the anti-pollution research authorized by section 104.
2009-December-07Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize
(Posted 2010-April-15)
The Emoluments Clause of the Constitution does not apply to the President’s receipt of the Nobel Peace Prize.
The Foreign Gifts and Decorations Act does not bar the President from accepting the Peace Prize without congressional consent.
The Foreign Gifts and Decorations Act does not bar the President from accepting the Peace Prize without congressional consent.
2009-November-24Whether the Ten-year Minimum Sentence in 18 U.S.C. § 924(c)(1)(b)(i) Applies to Semiautomatic Assault Weapons
(Posted 2009-November-25)
Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in section 924(c)(1)(B)(i) of title 18 applies.
2009-October-23Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects
(Posted 2009-November-25)
The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President’s will.
2009-October-23Applicability of Section 163 of Division B of Public Law 111-68 to Payments in Satisfaction of Pre-existing Contractual Obligations
(Posted 2009-November-25)
Section 163 of Division B (“Continuing Appropriations Resolution, 2010”) of Public Law 111-68 does not direct or authorize the Department of Housing and Urban Development to breach a pre-existing binding contractual obligation to make payments to the Association of Community Organizations for Reform Now or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.
2009-October-22Constitutionality of Mandatory Registration of Credit Rating Agencies
(Posted 2009-November-25)
The Administration’s proposal for mandatory registration of credit rating agencies, which would include an exemption designed to address First Amendment concerns, would satisfy the First Amendment’s requirements.
2009-September-08Authority of the Former Inspector General of the Federal Housing Finance Board to Act as Inspector General for the Federal Housing Finance Agency
(Posted 2009-November-25)
The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as Inspector General for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008.
The former Federal Housing Finance Board Inspector General cannot appoint employees to the Office of Inspector General for the Federal Housing Finance Agency.
2009-August-21Permissibility of Small Business Administration Regulations Implementing the Historically Underutilized Business Zone, 8(a) Business Development, and Service-disabled Veteran-owned Small Business Concerns Programs
(Posted 2009-September-02)
The Small Business Administration's regulations governing the interplay among the Historically Underutilized Business Zone Program, the 8(a) Business Development Program, and the Service-Disabled Veteran-Owned Small Business Concern Program constitute a permissible construction of the Small Business Act.
The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration's regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns.
The Office of Legal Counsel's conclusion that the Small Business Administration's regulations are reasonable is binding on all Executive Branch agencies. 
2009-August-14Legality  of Intrusion-detection System to Protect Unclassified Computer Networks in the Executive BranchOperation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws.
2009-July-08Eligibility of a Retired Military Officer for Appointment as Administrator of the National Aeronautics and Space AdministrationA retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—is eligible for appointment as Administrator of the National Aeronautics and Space Administration.

Updated: April 2014