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2013
2013-August-23

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
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
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.
2011-September-19

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.

2011-September-18

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
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
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.
2009-June-16Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
(Posted 2009-August-24)
The two new criminal prohibitions created in the Matthew Shepard Hate Crimes Prevention Act would be constitutional.
2009-June-11Withdrawal of Office of Legal Counsel Opinion
(Posted 2009-August-24)
One previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office.
2009-June-01Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act
(Posted 2009-August-24)
Section 7054 of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act, which purports to prohibit all funds made available under title I of that Act from being used to pay the expenses for any United States delegation to a specialized UN agency, body, or commission that is chaired or presided over by a country with a government that the Secretary of State has determined supports international terrorism, unconstitutionally infringes on the President’s authority to conduct the Nation’s diplomacy, and the State Department may disregard it.
2009-May-20Validity of Statutory Rollbacks as a Means of Complying With the Ineligibility ClauseWhere a salary increase for an executive office would otherwise create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by legislation rolling back the salary of the office before the appointment.
2009-April-21Constitutionality of the Ronald Reagan Centennial Commission Act of 2009
(Posted 2009-August-24)
Provisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that six of eleven commissioners of the Ronald Reagan Centennial Commission would be members of Congress, appointed by congressional leadership, would raise concerns under the Appointments Clause, the Ineligibility Clause, and the separation of powers.
2009-April-15Withdrawal of Office of Legal Counsel CIA Interrogation Opinions
(Posted 2009-August-24)
Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.
2009-January-14Status of Presidential Memorandum Addressing the Use of Polygraphs
(Posted 2009-January-16)
An undated four-page memorandum from President Lyndon Johnson entitled “Use of the Polygraph in the Executive Branch” and addressed to the heads of Executive Branch departments and agencies, which was neither issued as a directive to the Executive Branch nor understood contemporaneously to have legal effect, does not now bind the Department of Justice or other entities within the Executive Branch.
2009-January-09Legal Issues Relating to the Testing, Use, and Deployment of an Intrusion-detection System (EINSTEIN 2.0) to Protect Unclassified Computer Networks in the Executive Branch
(Posted 2009-September-18)
An intrusion-detection system known as EINSTEIN 2.0 used to protect civilian unclassified networks in the Executive Branch against malicious network activity complies with the Fourth Amendment to the Constitution, the Wiretap Act, 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.
2008
2008-December-18Meaning of “Temporary” Work Under 8 U.S.C. § 1101(a)(15)(h)(ii)(b)"
(Posted 2008-December-19)
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). 
2008-November-14Constitutionality of the OLC Reporting Act of 2008
(Posted 2009-January-12)
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.
2008-November-05Requests for Information Under the Electronic Communications Privacy Act
(Posted 2009-January-16)
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.
2008-October-16Scope of Exemption Under Federal Lottery Statutes for Lotteries Conducted by a State Acting Under the Authority of State Law
(Posted 2008-October-17)
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.
2008-September-26Enforceability of Certain Agreements Between the Department of the Treasury and Government Sponsored Enterprises
(Posted 2008-October-02)
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.
2008-August-13Applicability of 18 U.S.C.  § 207(f) to Public Relations Activities Undertaken for a Foreign Corporation Controlled by a Foreign Government
(Posted 2009-August-24)
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.
2008-July-24Scope of the Definition of “Variola Virus” Under the Intelligence Reform and Terrorism Prevention Act of 2004
(Posted 2008-December-01)
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.
2008-July-15Assertion of Executive Privilege Concerning the Special Counsel's Interviews of the Vice President and Senior White House Staff
(Posted 2008-March-26)
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.
2008-June-19Assertion of Executive Privilege Over Communications Regarding EPA's Ozone Air Quality Standards and California's Greenhouse Gas Waiver Request
(Posted 2009-January-08)
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.
2008-May-30Admissibility in Federal Court of Electronic Copies of Personnel Records
(Posted 2008-October-21)
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.
2008-May-28Authority of Environmental Protection Agency to Hold Employees Liable for Negligent Loss, Damage, or Destruction of Government Personal Property
(Posted 2008-September-24)
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.
2008-May-23Validity of the Food, Conservation, and Energy Act of 2008
(Posted 2009-January-16)
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.
2008-April-14Promotions of the Judge Advocates General Under Section 543 of the National Defense Authorization Act for Fiscal Year 2008
(Posted 2008-April-17)
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.
2008-February-29Office of Government Ethics Jurisdiction Over the Smithsonian Institution
(Posted 2008-April-22)
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.
2008-February-11Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program
(Posted 2008-March-17)
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.
2008-January-29Constitutionality of Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007
(Posted 2008-October-21)
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.
2008-January-16Constitutionality of Federal Government Efforts in Contracting With Women-owned Businesses
(Posted 2009-January-16)
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.
2007
2007-December-04Term of the Commissioner of Internal Revenue
(Posted 2008-April-30)
Under 26 U.S.C. § 7803 (2000), the five-year term of the Commissioner of Internal Revenue runs from the date of appointment and is not calculated from the expiration of his predecessor's term.
2007-October-23Application of 18 U.S.C. § 207 to Former CIA Officials’ Communications With CIA Employees on Detail to Other Agencies
(Posted 2008-September-23)
The prohibition in 18 U.S.C. § 207(c), under which a former high level official, in the year after his departure, may not make “any communication to or appearance before any officer or employee” of his former agency, would apply if former CIA officials make communications to or appearances before CIA employees who are on detail to other agencies.
2007-October-16Whether the Defense of Marriage Act Precludes the Non-Biological Child of a Member of a Vermont Civil Union From Qualifying for Child's Insurance Benefits Under the Social Security Act
(Posted 2008-June-09)
The Defense of Marriage Act would not prevent the non-biological child of a partner in a Vermont civil union from receiving child's insurance benefits under the Social Security Act.
2007-October-16Rate of Accrual of Annual Leave by a Civilian Employee Appointed While on Terminal Leave Pending Retirement From One of the Uniformed Services
(Posted 2007-December-04)
A member of a uniformed service appointed to a civilian position while on terminal leave pending retirement from the service is entitled to credit for his years of active military service only for the duration of his terminal leave.
Once the employee retires from the uniformed service, he no longer is entitled to credit for his years of active military service unless he satisfies certain statutory exceptions detailed in 5 U.S.C. § 6303(a) or (e). The employee's leave-accrual rate must be recalculated upon his retirement to reflect his reduced years of creditable service. 
2007-October-16Responsibility of Agencies to Pay Attorney’s Fee Awards Under the Equal Access to Justice Act
(Posted 2009-January-14)
The judgment of attorney’s fees and expenses entered against the United States in Cienega Gardens v. United States cannot be paid out of the Judgment Fund because the Equal Access to Justice Act provides for payment.
Pursuant to EAJA, the Department of Housing and Urban Development must pay the award. HUD would be the “agency over which the [plaintiffs] prevail[ed]” under EAJA because it administered the federal program that was the subject of the litigation.
2007-October-10Department of Justice Authority to Represent the Secretary of Housing and Urban Development in Certain Potential Suits
(Posted 2008-July-14)
The Department of Justice has statutory authority to represent the Secretary of Housing and Urban Development in suits that may arise from his decision to exercise his authority under the United States Housing Act of 1937 to override certain state civil service protections that would otherwise apply to employees of the Housing Authority of New Orleans.
2007-September-17Authority of the President to Name an Acting Attorney General
(Posted 2008-July-10)
The President may designate an Acting Attorney General under the Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, even if an officer of the Department otherwise could act under 28 U.S.C. § 508, which deals with succession to the office of the Attorney General. 
2007-August-21Whether the Office of Administration Is an “Agency” for Purposes of the Freedom of Information Act
(Posted 2009-August-24)
The Office of Administration, which provides administrative support to entities within the Executive Office of the President, is not an agency for purposes of the Freedom of Information Act.
2007-July-10Immunity of Former Counsel to the President From Compelled Congressional Testimony
(Posted 2008-March-26)
The former Counsel to the President is immune from compelled congressional testimony about matters that arose during her tenure as Counsel to the President and that relate to her official duties in that capacity and is not required to appear in response to a subpoena to testify about such matters.
2007-June-29Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act
(Posted 2008-October-14)
The Religious Freedom Restoration Act is reasonably construed to require the Office of Justice Programs to exempt World Vision-a religious organization that has been awarded a grant under the Juvenile Justice and Delinquency Prevention Act-from the religious nondiscrimination provision in 42 U.S.C. § 3789d(c)(1).
2007-June-27Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys
(Posted 2008-March-26)
Executive privilege may properly be asserted over the documents and testimony concerning the dismissal and replacement of United States Attorneys that have been subpoenaed by congressional committees.
2007-June-15Application of the Emoluments Clause to a Member of the Federal Bureau of Investigation Director's Advisory Board
(Posted 2007-July-30)
A member of the Federal Bureau of Investigation Director's Advisory Board does not hold an “Office of Profit or Trust” under the Emoluments Clause of the Constitution.
2007-May-23Constitutionality of D.C. Voting Rights Act of 2007
(Posted 2009-January-16)
S. 1257, a bill to grant the District of Columbia representation in the House of Representatives as well as to provide an additional House seat for Utah, violates the Constitution’s provisions governing the composition and election of the United States Congress.
2007-May-17When a Prior Conviction Qualifies as a ”Misdemeanor Crime of Domestic Violence”
(Posted 2007-September-14)
A “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element-that is, a factual predicate specified by law and required to support a conviction.
Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the factfinder found that the subpart meeting the “misdemeanor crime of domestic violence” definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question.
The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.
2007-April-16Officers of the United States Within the Meaning of the Appointments Clause
(Posted 2007-April-26)
A position to which is delegated by legal authority a portion of the sovereign powers of the federal Government and that is “continuing” is a federal office subject to the Constitution's Appointments Clause. A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause.

Updated: April 2014