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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.
2007-April-05Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences
(Posted 2007-November-06)
Light refreshments are “subsistence expenses” to which the prohibition of 31 U.S.C. § 1345 applies, and various statutory provisions that authorize the Environmental Protection Agency to hold meetings, conduct training and provide grants do not satisfy the “specifically provided by law” exception to the prohibition.
A violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act.
2007-March-30Status of Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c)
(Posted 2008-December-22)
A former senior employee of the Securities and Exchange Commission communicating with the Commission on behalf of the Public Company Accounting Oversight Board during the year after his service as a senior employee at the Commission ends would not be communicating on behalf of the United States and therefore 18 U.S.C. § 207(c) would apply to bar such a communication.
2007-March-28Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274e
(Posted 2007-April-03)
Two alternative kidney donation practices, in which a living donor who is incompatible with his intended recipient donates a kidney to a stranger in exchange for the intended recipient's receiving a kidney from another donor or increased priority on a waiting list, do not violate the prohibition on transfers of organs for “valuable consideration” in 42 U.S.C. § 274e..
2007-January-31Presidential Signing Statements
(Posted 2009-January-16)
This testimony discusses the purpose and history of presidential signing statements.
2007-January-26Days of Service by Special Government Employees
(Posted 2007-February-26)
The longstanding interpretation of the Executive Branch that service by a special government employee during any part of a day counts as a full day under 18 U.S.C. §§ 203 and 205, which impose greater conflict of interest restrictions after a special government employee works 60 days, is reaffirmed.
2006
2006-November-22Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees Paid to a Contractor by Attendees at Agency-Sponsored Conferences
(Posted 2008-October-16)
Fees that attendees at agency-sponsored conferences pay to private event planners for items of personal convenience provided by the planners are not subject to the Miscellaneous Receipts Act, 31 U.S.C. § 3302(b).
2006-September-05Jurisdiction of Integrity Committee When Inspector General Leaves Office After Referral of Allegations
(Posted 2008-May-28)
The Integrity Committee has authority to review, refer for investigation, and report findings with respect to, administrative allegations of wrongdoing made against a former Inspector General when the Committee receives the allegations during the subject's tenure as Inspector General, even if the subject later leaves office.
2006-August-22Application of the Government Corporation Control Act and the Miscellaneous Receipts Act to the Canadian Softwood Lumber Settlement Agreement
(Posted 2009-January-14)
An aspect of the proposed agreement between the United States and Canada settling various disputes regarding trade in softwood lumber products, in which duties now held by the United States would be distributed by a private foundation to “meritorious initiatives” related to, among other things, timber-reliant communities, would not violate the Government Corporation Control Act or the Miscellaneous Receipts Act.
2006-August-11Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime
(Posted 2008-December-19)
A presidential pardon granted under Article II, Section § 2 of the Constitution does not automatically expunge Judicial or Executive Branch records relating to the conviction or underlying offense..
2006-January-19Legal Authorities Supporting the Activities of the National Security Agency Described by the President
(Posted 2009-January-16)
The President has legal authority to authorize the National Security Agency to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither the Foreign Intelligence Surveillance Act nor the Fourth Amendment.
2006-January-11Financial Interests of Nonprofit Organizations
(Posted 2006-January-11)
Under 18 U.S.C. § 208, a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter.
2005
2005-November-23Application of 18 U.S.C. 1913 to “Grass Roots” Lobbying by Union Representatives
(Posted 2007-November-06)
Under 18 U.S.C. 1913, federal employees who are union representatives may not use official time to engage in “grass roots” lobbying in which, on behalf of their unions, they ask members of the public to communicate with government officials in support of, or opposition to, legislation or other measures.
2005-September-23Waiver of Sovereign Immunity With Respect to Whistleblower Provisions of Environmental Statutes
(Posted 2008-April-24)
The federal Government's sovereign immunity has been waived with respect to the whistleblower provisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the whistleblower provision of the Clean Water Act.
2005-September-20Appointments to the Board of the Legal Services Corporation
(Posted 2008-March-14)
The President has authority to appoint a member of the Board of the Legal Services Corporation who has been confirmed after his or her statutory term of office has expired, where the holdover provision of the statute allows a member to serve until a successor is appointed.
2005-September-13Application of 18 U.S.C. § 207(c) to Proposed Communications Between Retired Navy Flag Officer and Marine Corps Commanders in Iraq Regarding Security Issues
(Posted 2009-January-16)
It appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed communications between a retired Navy flag officer and Marine Corps commanders regarding the security situation in Iraq.
2005-August-12Proposed Amendments to Military Commission Order No. 1
(Posted 2006-May-09)
Certain proposed amendments to the Secretary of Defense’s Military Commission Order No. 1 are consistent with the President’s Military Order of November 12, 2001. 
2005-August-10Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State GovernorsThe federal Government has authority under the Defense Base Closure and Realignment Act of 1990, as amended, to close or realign a National Guard installation without the consent of the governor of the State in which the installation is located.
2005-July-28Assignment of Certain Functions Related to Military Appointments
(Posted 2007-January-03)
Section 531(a)(1) of title 10 does not affirmatively prohibit delegation to the Secretary of Defense of the President's appointment authority.
The Appointments Clause of the Constitution does not prohibit Congress from allowing the President to choose between making such an appointment himself and delegating it to the Secretary of Defense.
So long as each nomination is submitted to the Secretary of Defense for approval (whether individually or in groups) and each appointment is made in the name of the Secretary of Defense (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer), the Constitution would permit functions related to the appointment process to be delegated to a subordinate officer below the Secretary of Defense.
2005-July-22Whether Conflict of Interest Laws Apply to a Person Assisting a Supreme Court Nominee
(Posted 2008-March-14)
On the facts described, a person whom a judicial nominee asks to assist him in connection with the nomination would not be an “officer” or “employee” and therefore the federal conflict of interest laws would not apply to him.
2005-July-07Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It
(Posted 2006-December-05)
The President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President's signature to such a bill, for example by autopen.
2005-June-01Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6Covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6, and the knowingly element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense.
2005-March-09Application of the Emoluments Clause to a Member of the President's Council on BioethicsA member of the President's Council on Bioethics does not hold an “Office of Profit or Trust” within the meaning of the Emoluments Clause of the Constitution.
2005-February-02Religious Objections to the Postal Service Oath of Office
(Posted 2008-November-12)
Section 1011 of title 39 of the United States Code specifies an oath of office that all Postal Service officers and employees must take. Title VII of the Civil Rights Act of 1964 does not require the Postal Service to depart from the dictates of section 1011 in order to accommodate (beyond what is required by section 1011) prospective employees who raise bona fide religious objections to taking this oath.
2005-January-18Treatment of Expunged State Convictions Under the Immigration and Nationality Act
(Posted 2006-May-24)
Under the definition of “conviction” contained in the Immigration and Nationality Act, for a conviction not involving a first-time simple possession of narcotics, an alien remains convicted, and thus removable under the Act, notwithstanding a subsequent state action to vacate or set aside the conviction that does not reflect a judgment about the merits of the underlying adjudication of guilt.
2005-January-12Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004
(Posted 2006-January-23)
At the time the National Security Intelligence Reform Act of 2004 takes effect, the then-current Director of Central Intelligence would not require a new appointment to the office of Director of the Central Intelligence Agency should the President wish him to serve in that position. 
2005-January-11Application of Record-Destruction Requirements to Information Received From the National Instant Criminal Background Check System
(Posted 2006-October-29)
The laws governing destruction of background-check information do not require the Bureau of Alcohol, Tobacco, Firearms, and Explosives to destroy information it previously received from the National Instant Criminal Background Check System when the NICS had determined that an individual seeking to purchase a firearm may not lawfully receive a firearm in the circumstance when the NICS later overturns that determination.
2004
2004-December-30

Definition of Torture Under 18 U.S.C. §§ 2340-2340A

This opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340–2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of Conduct under 18 U.S.C. §§ 2340–2340A.

That statute prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”

The statute also prohibits certain conduct specifically intended to cause “severe physical suffering” distinct from “severe physical pain.”

2004-December-06Political Balance Requirement for the Civil Rights CommissionIn appointing a new member to the United States Commission on Civil Rights, in order to comply with the statutory requirement that “[n]ot more than 4 of the members shall at any one time be of the same political party,” the President should look to the party affiliation of the other members at the time the new member is appointed.
2004-November-30Terms of Members of the Civil Rights CommissionThe six-year term of a member of the United States Commission on Civil Rights runs from the date on which his or her predecessor’s term ends, not from the date of the member’s appointment.
2004-November-16Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled SchoolsSection 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice.
2004-October-07Use of Appropriations to Pay Travel Expenses of International Trade Administration FellowsThe payment of travel expenses for International Trade Administration fellows is barred by 31 U.S.C. § 1345 because the proposed ITA fellowship program that would bring representatives from various countries to the United States would constitute a “meeting” within the meaning of section 1345.
2004-August-31Authority of HUD’s Chief Financial Officer to Submit Final Reports on Violations of Appropriations LawsThe Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer of the Department of Housing and Urban Development to report to the President and Congress on violations by the agency of the Anti-Deficiency Act and other appropriations laws concerning expenditures, but the CFO must first submit his reports to the Secretary of HUD for review and approval.
2004-August-31Legality of EEOC’s Class Action Regulations

The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised with respect to the Equal Employment Opportunity Commission’s class action regulations.

The Equal Employment Opportunity Commission’s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners suggested by the United States Postal Service: the regulations do not purport to prevent claimants from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and they do not forestall the running of the limitations period.

2004-August-30Ethical Issues Raised by Retention and Use of Flight Privileges by FAA Employees

Although flight privileges generally do not require disqualification under 18 U.S.C. § 208 from all matters involving the relevant air carrier, a Federal Aviation Administration employee who holds such flight privileges must disqualify him or herself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier’s ability to honor the employee’s flight privileges.

An employee with flight privileges and the airline that provided them have a “covered relationship” that must be analyzed under an Office of Government Ethics regulation (5 C.F.R. § 2635.502) to determine whether the employee’s participating in a matter involving that airline would create an “appearance problem.” The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case.

Although flight privileges could constitute a “payment” within the meaning of another OGE regulation (5 C.F.R. § 2635.503), and therefore must be analyzed under the regulation, they do not constitute an “extraordinary payment” under the described circumstances.

2004-August-27Requirement That “Private Citizens” Be Appointed From “Private Life” to the National Council for the HumanitiesBecause state and local public officials, including a county commissioner, are not “private citizens” who would be appointed “from private life” within the ordinary meaning of those terms in 20 U.S.C. § 957(b), such officials are disqualified from appointment to the National Council for the Humanities.
2004-August-24Whether the Second Amendment Secures an Individual RightThe Second Amendment secures a right of individuals generally, not a right of states or a right restricted to persons serving in militias.
2004-July-30Expenditure of Appropriated Funds for Informational Video News ReleasesInformational video news releases produced by the Department of Health and Human Services regarding the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 do not constitute impermissible “covert propaganda” in violation of the Consolidated Appropriations Resolution, 2003, which forbids the expenditure of appropriated funds for “publicity or propaganda purposes.”
2004-July-29Authority to Prescribe Regulations Limiting the Partisan Political Activities of the Commissioned Officers Corps in the National Oceanic and Atmospheric AdministrationThe Department of Commerce may prescribe regulations limiting the partisan political activities of the Commissioned Officers Corps in the National Oceanic and Atmospheric Administration.
2004-June-22Applicability of Anti-Discrimination Statutes to the Presidio Trust

The issue the Presidio Trust has presented is of the sort that Executive Order 12146 calls upon the Attorney General, and hence the Office of Legal Counsel, to resolve.

The Presidio Trust is exempt from section 717 of Title VII of the Civil Rights Act of 1964 and section 15 of the Age Discrimination in Employment Act of 1967 to the extent that these statutes apply to the appointment, compensation, duties, or termination of Trust employees, but not otherwise.

2004-June-22Application of 18 U.S.C. § 207(f) to a Former Senior EmployeeTitle 18, section 207(f) of the U.S. Code prohibits a former senior employee of an executive branch department from representing a foreign entity before members of Congress within one year of the termination of his employment.
2004-May-21Authority of Agency Officials to Prohibit Employees From Providing Information to CongressConsistent with longstanding Executive Branch positions, Department of Health and Human Services officials have the authority to prohibit officers or employees of the Department from providing information to Congress.
2004-March-19Status of National Veterans Business Development CorporationThe National Veterans Business Development Corporation is a “Government corporation’ under 5 U.S.C. § 103 and an “agency” under 31 U.S.C. § 9102.
2004-March-19

Mechanisms for Funding Intelligence Centers


(Posted 2014-February-26)

Agencies may use the Economy Act to pay for facilities and services provided by the Terrorist Threat Integration Center and the Terrorist Screening Center.

It is within the reasonable discretion of fiscal officers to compute the “actual cost” to be charged for those facilities and services.

2004-March-18“Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV) governs the United States occupation of Iraq.

The following persons, if captured in occupied Iraq, are not “protected persons” within the meaning of article 4 of the Fourth Geneva Convention: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.

2004-March-17Deployment of United States Armed Forces to Haiti

The President has authority to order the deployment of the armed forces to Haiti in order to protect American citizens there.

The deployment is consistent with the War Powers Resolution.

2004-March-12Apportionment of False Claims Act Recoveries to AgenciesWhether an agency’s revolving fund is entitled to receive from a False Claims Act recovery (in addition to single damages equal to the actual amount of the payment made as a result of the false claim) pre-judgment or pre-settlement interest on that payment and investigative and administrative costs attributable to the false claim depends on whether the fund is authorized to borrow money at interest, earn interest on its own investments, and pay its own investigative and administrative expenses.
2004-March-01Liability of Contractors in Airbridge Denial ProgramsA contractor ordinarily will not be criminally liable for assisting in certain foreign government programs for the aerial interdiction of illegal narcotics traffic.
2004-February-20Status of the Foreign Claims Settlement CommissionThe Foreign Claims Settlement Commission is subject to the Attorney General’s direction in administrative matters, except where that direction would interfere with the Commission’s independence in adjudicating claims.
2004-January-12

Assertion of Constitutionally Based Privilege Over Reagan Administration Records

It is legally permissible for President Bush to assert constitutionally based privilege in concurrence with former President Reagan’s assertion of constitutionally based privilege over certain Reagan Administration documents that are otherwise required to be released by the National Archives and Records Administration under the Presidential Records Act.

2003
2003-October-10Compliance of Direct Recording Electronic Voting Systems With Help America Vote Act and Americans With Disabilities ActA direct recording electronic voting system that produces a contemporaneous paper record, which is not accessible to sight-impaired voters but which allows sighted voters to confirm that their ballots accurately reflect their choices before the system officially records their votes, would be consistent with the Help America Vote Act and with title II of the Americans with Disabilities Act, so long as the voting system provides a similar opportunity for sight-impaired voters to verify their ballots before those ballots are finally cast.
2003-September-22Holdover and Removal of Members of Amtrak’s Reform Board

A member of Amtrak’s Reform Board whose statutory term has expired may not hold over in office until a successor is appointed.

The President may remove a member of the Amtrak Reform Board without cause.

2003-September-08Equal Employment Opportunity Commission Actions Against Public Employers to Enforce Settlement or Conciliation AgreementsThe Equal Employment Opportunity Commission lacks the authority to initiate an action in federal court against a public employer to enforce a settlement or conciliation agreement negotiated by the EEOC during its administrative process.
2003-September-05Temporary Filling of Vacancies in the Office of United States AttorneyTwo statutes that provide for the temporary filling of vacancies in the office of United States Attorney, 28 U.S.C. § 546 and 5 U.S.C. §§ 3345–3349d, operate independently, and either or both may be used for a particular vacancy.
2003-August-12Authority of Chief Financial Officer Under FY 2003 HUD AppropriationsProvisions of the Department of Housing and Urban Development Appropriations Act for FY 2003 did not assign all responsibility for appropriations law matters to HUD’s Chief Financial Officer to the exclusion of the General Counsel.
2003-July-24Eligibility of Unlegitimated Children for Derivative CitizenshipAn alien child who was born out of wedlock and whose paternity has not been established by legitimation is eligible for derivative citizenship under section 320 of the Immigration and Naturalization Act at the time the child’s mother becomes a naturalized citizen.
2003-July-18Interpretation of Section 586 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act

Existing statutory provisions that prohibit or impose mandatory restrictions on the public release of information are not overridden by section 586 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2003, which requires the President to order federal agencies “to expeditiously declassify and release to the victims’ families” information regarding the murders of certain Americans in El Salvador and Guatemala. Provisions that permit but do not require the government to withhold information are, however, overridden by section 586.

It is permissible to interpret the scope of the information covered by section 586 to be limited to classified information.

2003-July-03VA’s Authority to Fill Certain Prescriptions Written by Non-VA PhysiciansThe Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for veterans placed on VA waiting lists.
2003-June-12Designation of Acting Director of the Office of Management and BudgetThe President’s designation of an employee to act as Director of OMB under the Vacancies Reform Act, 5 U.S.C. ?? 3345?3349d, is itself the appointment of an inferior officer and satisfies the Appointments Clause, U.S. Const. art. II, ? 2, cl. 2, even if the employee had not earlier been an “Officer of the United States.”
2003-May-23Application of 18 U.S.C. § 603 to Contributions to the President’s Re-Election CommitteeCivilian executive branch employees do not violate 18 U.S.C. § 603 by contributing to a President’s authorized re-election campaign committee.
2003-April-30Authority of the Department of the Interior to Provide Historic Preservation Grants to Historic Religious Properties Such as the Old North ChurchThe Establishment Clause does not bar the award of historic preservation grants to the Old North Church or to other active houses of worship that qualify for such assistance, and the section of the National Historic Preservation Act authorizing the provision of historic preservation assistance to religious properties listed on the National Register of Historic Places is constitutional.
2003-April-17

Bond Proceeding of Undocumented Aliens Seeking to Enter the United States Illegally


(Posted 2014-February-26)

In determining whether to release on bond undocumented migrants who arrive in the United States by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the United States without adequate screening.

In bond proceedings involving aliens seeking to enter the United States illegally, where the government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, immigration judges and the Board of Immigration Appeals shall consider such interests.

Considering national security grounds applicable to a category of aliens in denying an unadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under section 236(a) of the Immigration and Nationality Act.

2003-March-24Scope of the Attorney General’s Authority to Assign Duties Under 21 U.S.C. § 878(a)(5)Under 21 U.S.C. § 878(a)(5), the Attorney General may authorize the Drug Enforcement Administration to investigate possible violations of federal law, even if those violations do not concern the narcotics laws.
2003-March-04NLRB Quorum RequirementsThe National Labor Relations Board may issue decisions even when only two of its five seats are filled, if the Board, at a time when it has at least three members, delegates all its powers to a three-member group and the two remaining members are part of this group and both participate in the decisions.
2003-February-20Limitations on the Detention Authority of the Immigration and Naturalization Service

The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with any particular degree of dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity.

It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General’s power to effect the removal within 90 days. The Attorney General can take such action, however, only when the delay in removal is related to effectuating the immigration laws and the nation’s immigration policies. Among other things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections satisfy this standard. An obligation to act with “reasonable dispatch” will attach at some point after the expiration of the 90-day removal period.

2003-February-06Department of Transportation Authority to Exempt Canadian Truck Drivers From Criminal Liability for Transporting Explosives

The Department of Transportation possesses the authority to issue a regulation that, under section 845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section 842(i) of that title.

The Department of Transportation, however, has not issued such a regulation, and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.

2003-February-06Appointment of Member of Holocaust Memorial Council

The process of appointing an individual as a member of the United States Holocaust Memorial Council was not completed.

Even if the process of appointing a member of the Council had been completed, the President’s appointment of another individual to that same position effected a removal of that appointee.

2003-January-31Whether Canteen Service Provided Through the Veterans’ Canteen Service Is Exempt From Review Under the Federal Activities Inventory Reform Act of 1998Canteen service provided through the Veterans’ Canteen Service is not exempt from review under the Federal Activities Inventory Reform Act of 1998.
2003-January-06Authority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against Federal Agencies for Failure to Comply With Orders Issued by EEOC Administrative JudgesThe doctrine of sovereign immunity precludes the Equal Employment Opportunity Commission from imposing monetary sanctions against federal agencies for violations of orders of EEOC administrative judges.
2003-January-03Funding for Technical Assistance for Agricultural Conservation Programs

Funding for technical assistance for the agricultural conservation programs listed in amended section 1241(a) of the Food Security Act of 1985 is subject to the “section 11 cap” on transfer of Commodity Credit Corporation funds.

The Secretary of Agriculture may draw on the Department of Agriculture’s appropriation for Conservation Operations to fund technical assistance for these programs.

2002
2002-December-31Legality of Fixed-Price Intergovernmental Agreements for Detention ServicesThe Department of Justice has authority to enter Intergovernmental Agreements with state or local governments to provide for the detention of federal prisoners and detainees on a fixed-price basis and is not limited to providing compensation for costs under such agreements.
2002-December-19Under Secretary of the Treasury for Enforcement
(Posted 2008-December-19)
The President does not have a legal duty to make a nomination for Under Secretary of the Treasury for Enforcement.
If the President does not make a nomination, the Secretary of the Treasury could perform the duties himself or assign them to another official of his Department. 
2002-December-19Duty to File Public Financial Disclosure Report
(Posted 2008-December-19)
A member of a commission in the Executive Branch need not file a public financial disclosure report in circumstances where the employee's salary is set by administrative action within a range specified by statute, is below the statutory salary threshold for such reports, but could have been set at a level making a public report necessary.
The financial disclosure obligations of Legislative Branch officials should be construed similarly, because the statutory language applicable to officials in the Executive Branch is, in relevant part, identical to that applicable to officials in the Legislative Branch. 
2002-December-07Whether False Statements or Omissions in Iraq's Weapons of Mass Destruction Declaration Would Constitute a “Further Material Breach” Under U.N. Security Council Resolution 1441
(Posted 2009-January-08)
False statements or omissions in Iraq's weapons of mass destruction declaration would by themselves constitute a “further material breach” of United Nations Security Council Resolution 1441.
2002-November-22Expiration of Authority of Recess AppointeesTwo members of the National Labor Relations Board who received recess appointments between the first and second sessions of the 107th Congress may not continue to serve on the Board after the Senate adjourned the second session sine die.
2002-November-15Designation of Acting Solicitor of Labor
(Posted 2008-December-19)
Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment, could be given a second position in the non-career Senior Executive Service in the Department of Labor before or after his recess appointment expires and, while serving in his non-career Senior Executive Service position, could be designated as the Acting Solicitor after his recess appointment expires.
2002-November-08Effect of a Recent United Nations Security Council Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq
(Posted 2009-January-08)
United Nations Security Council Resolution 1441 does not alter the legal authority, under international law, granted by existing U.N. Security Council resolutions to use force against Iraq.
2002-October-23Authority of the President Under Domestic and International Law to Use Military Force Against Iraq
(Posted 2009-January-08)
The President possesses constitutional authority to use military force against Iraq to protect United States national interests. This independent constitutional authority is supplemented by congressional authorization in the form of the Authorization for Use of Military Force Against Iraq Resolution.
Using force against Iraq would be consistent with international law because it would be authorized by the United Nations Security Council or would be justified as anticipatory self-defense.
2002-September-25Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew AcademyThe Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations permit the Federal Emergency Management Agency to provide federal disaster assistance for the reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an earthquake in 2001.

The Establishment Clause of the First Amendment does not pose a barrier to the Academy's receipt of such aid.

2002-September-17Relationship Between Section 203(d) of the Patriot Act and the Mandatory Disclosure Provision of Section 905(a) of the Patriot Act
(Posted 2013-April-08)
The sweeping authority to share information set forth in section 203(d) of the Patriot Act has a significant impact on the scope of the mandatory information-sharing obligation set forth in section 905(a) of the Patriot Act. Section 905(a) requires disclosure of foreign intelligence to the Director of Central Intelligence unless disclosure is otherwise prohibited by law. Because of the sweep of section 203(d), however, it is always lawful to disclose information that comes under that section in order to assist a federal official in the performance of his official duties. As a result, the preemptive effect of section 203(d) on all other non-disclosure provisions means that, absent an exception provided for by the Attorney General, foreign intelligence that would assist the Director of Central Intelligence in the performance of his official duties must be disclosed pursuant to section 905(a) because no other applicable law can be said to provide otherwise.
2002-August-22Application of 44 U.S.C. § 1903 to Procurement of Printing of Government PublicationsSection 1903 of title 44 of the United States Code does not prevent executive agencies from using private printers at agency expense to print copies of government publications for their own use while at the same time requisitioning depository copies from the Government Printing Office at GPO expense.
2002-July-22Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs
(Posted 2013-April-08)
The Patriot Act amendments to the confidentiality provisions in Rule 6(e) of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2517 (part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968) did not change this Office's prior opinions that these provisions are subject to an implied exception where disclosure of information is necessary to permit the President to discharge his constitutional responsibilities for national security under Article II.

The decision to disclose such information to other Executive Branch officials is a matter for the President himself to determine. He may delegate that authority to others-including by an oral direction-but officials such as the Attorney General may not exercise an inherent constitutional power of the President to disclose such information to others without some direction from the President.

The Patriot Act amended Rule 6(e) and Title III to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Although the new provision in Rule 6(e) requires that any such disclosures be reported to the district court responsible for supervising the grand jury, disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President's behalf.

2002-July-09Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings
The Board of Governors of the Federal Reserve System may, consistent with its obligations under the Government in the Sunshine Act, place observers of an open meeting of the Board in a separate room to watch the meeting on closed-circuit television.
It is permissible under both the Sunshine Act and the Piracy Act for the Board to require disclosure of personal information and satisfaction of a security check as a condition of entering the Board's buildings for access to the separate room to observe an open meeting.
2002-June-12Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
Federal judges and magistrates may lawfully and constitutionallyissue “no-knock” warrants where circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for such warrants under such circumstances
Although officers need not take affirmative steps to make an independent re-verification of the circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does not entitle officers to disregard reliable information clearly negating the existence of exigent circumstances when they actually receive such information before execution of the warrant. 
2002-June-12Survey of the Law of ExpatriationExpatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.
2002-May-30Applicability of Ineligibility Clause to Appointment of Congressman Tony P. HallThe Ineligibility Clause of the Constitution would not bar the President from appointing Congressman Tony P. Hall as United States Representative to the United Nations Agencies for Food and Agriculture, with the rank of Ambassador.
2002-May-08Application of Conflict-of-Interest Rules to Appointees Who Have Not Begun ServiceConflict-of-interest rules first apply when an appointee begins the duties of his office.
2002-April-19Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power
(Posted 2007-April-25)
Although the Chemical Safety and Hazard Investigation Board may not name an “Acting Chairperson,” it may delegate administrative and executive authority to a single member while the position of chairperson is vacant.
2002-March-20Centralizing Border Control Policy Under the Supervision of the Attorney General
In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress.
The President may not delegate his presidential authority to supervise and control the executive departments to a particular member of the Cabinet where no statutory authority exists to do so.
The President may exercise his own power to establish a comprehensive border control policy for the federal Government and direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy.
2002-March-13Role of Legal Guardians or Proxies in Naturalization ProceedingsSection 504 of the Rehabilitation Act requires the INS as a reasonable accommodation to permit a legal guardian or proxy to represent a mentally disabled applicant in naturalization proceedings.
2002-February-28Application of 18 U.S.C. § 203 to Former Employee's Receipt of Attorney's Fees in Qui Tam ActionTitle 18, section 203, U.S. Code, would not bar a former federal employee from sharing in attorney's fees in a qui tam action, provided that those fees, calculated under the lodestar formula, are prorated such that the former employee does not receive any fees attributable to his time in the government.
2002-February-07Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949The President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War.
2001
2001-December-10Assertion of Executive Privilege With Respect to Prosecutorial DocumentsExecutive privilege may properly be asserted in response to a congressional subpoena seeking prosecutorial decisionmaking documents of the Department of Justice.
2001-December-07Application of Federal Advisory Committee Act to Non-Governmental ConsultationsThe 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.
2001-December-05Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members
(Posted 2006-September-07)
The congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does not apply to disclosures to committee ranking minority members.
2001-November-28Constitutional Issues Raised by Commerce, Justice and State Appropriations Bill
(Posted 2006-April-20)
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.
2001-November-06Legality of the Use of Military Commissions to Try Terrorists
(Posted 2009-January-08)
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.
2001-November-05Authority of the Deputy Attorney General Under Executive Order 12333The Deputy Attorney General has authority to approve searches for intelligence purposes under section 2.5 of Executive Order 12333.
2001-November-01Application of 18 U.S.C. § 208 to Trustees of Private TrustsAlthough 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).
2001-October-31Duration of the Term of a Member of the Civil Rights CommissionA 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.
2001-October-05Disclosure of Conflicts of Interest of Members of FDA Advisory Panels
(Posted 2007-November-06)
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.
2001-October-01Checking Names of Prohibited Persons Against Records in the NICS Audit Log Concerning Allowed TransfersThe 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.
2001-September-25The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them

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.

2001-September-04Post-Employment Restriction of 12 U.S.C. § 1812(e)
(Posted 2006-November-30)
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.
2001-August-31The President's Authority to Make a Recess Appointment to the National Labor Relations BoardThe 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.
2001-August-07Designation of Acting Associate Attorney General
(Posted 2008-December-19)
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.
2001-July-31The President's Authority to Remove the Chairman of the Consumer Product Safety CommissionThe 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.
2001-July-25Constitutionality of the Rohrabacher Amendment
(Posted 2006-January-19)
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.
2001-June-27Whether Physician-Assisted Suicide Serves a “Legitimate Medical Purpose” Under DEA Regulations
(Posted 2007-November-06)
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.
2001-June-25Direct Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001
(Posted 2007-January-03)
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.
2001-June-22Indirect Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001The 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.
2001-June-20Applicability 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
(Posted 2009-August-24)
Title 18, section 207, U.S. Code, 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).
2001-May-24Emoluments Clause and World BankAn 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.
2001-May-24Authority of State Officials to Share Motor Vehicle Record Information With the Department of Defense or Its Contractors
(Posted 2008-April-21)
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.
2001-April-24Obligation to Sell Governors Island
(Posted 2008-April-03)
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.
2001-April-13Regulation of an Inmate's Access to the MediaSo 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.
2001-March-30Authority of the President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff DirectorThe President has the authority to remove the Staff Director of the United States Commission on Civil Rights and to appoint an Acting Staff Director. 
2001-February-14Applicability of APA Notice and Comment Procedures to Revocation of Delegation of AuthorityThe 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.
2001-January-19Effect 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 the Marshall IslandsCongress 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 in the Federated States of Micronesia and the Republic of the Marshall Islands by the Federal Emergency Management Agency would not violate the PRWORA.
2001-January-19Authority to Solicit GiftsThe 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. 
2001-January-19“Communications” Under 18 U.S.C. § 207A 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). 
2001-January-19NOAA Corps Eligibility for Professional Liability Insurance Costs ReimbursementMembers of the NOAA Commissioned Corps may constitute qualified employees eligible for professional liability insurance cost reimbursement under a federal appropriations statute, if they otherwise satisfy the statutory definition for “law enforcement officer,” “supervisor,” or “management official.” 
2001-January-19Investment of Federal Trust Funds for Cheyenne River and Lower Brule Sioux
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.
2001-January-19General Services Administration Use of Government Funds for Advertising
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.
2001-January-19Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation
(Posted 2009-January-16)
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.
2001-January-18Authority of the Office of Government Ethics to Issue Touhy Regulations
OGE may not issue Touhy regulations pursuant to 5 U.S.C. § 301 because OGE is not an “executive department” within the meaning of section 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. 
2001-January-17Reimbursing Transition-Related Expenses Incurred Before the Administrator of General Services Ascertained Who Were the Apparent Successful Candidates for the Office of President and Vice PresidentThe 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.
2000
2000-December-22Whether the President May Have Access to Grand Jury Material in the Course of Exercising His Discretion to Grant Pardons
The President, in the exercise of his pardon authority and responsibilities under Article II, Section 2, Clause 1 of the United States Constitution, may request that the pardon attorney include grand jury information in any recommendation he may make in connection with a pardon application if the President determines that his need for such information in considering that application outweighs the confidentiality interests embodied in Rule 6(e) of the Federal Rules of Criminal Procedure.The prohibition in Rule 6(e) cannot constitutionally be applied to prevent the President from obtaining grand jury information already in the possession of the Executive Branch when the President determines that, for purposes of making a clemency decision, his need for that information outweighs the confidentiality interests embodied in Rule 6(e).
2000-December-19Authorization for Continuing Hostilities in KosovoPub. L. No. 106-31, the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration at sixty days under section 5(b) of the War Powers Resolution.
2000-November-28Authority of the General Services Administration to Provide Assistance to Transition Teams of Two Presidential CandidatesThe Presidential Transition Act of 1963, with certain limited exceptions, authorizes the Administrator of the General Services Administration to provide transition assistance only for those services and facilities necessary to assist the transition of the “President-elect” and the “Vice-President-elect,” as those terms are defined in the Act. Since there cannot be more than one “President-elect” and one “Vice-President-elect” under the Act, the Act does not authorize the Administrator to provide transition assistance to the transition teams of more than one presidential candidate.
2000-November-27Payment of Attorney's Fees in Litigation Involving Successful Challenges to Federal Agency Action Arising Under the Administrative Procedure Act and the Citizen-Suit Provisions of the Endangered Species ActFor purposes of settling attorney's fees claims in a case arising under both section 10 of the Administrative Procedure Act and the citizen-suit provisions of the Endangered Species Act, federal litigators, in allocating hours and costs between the APA-Equal Access to Justice Act and ESA claims, should subordinate EAJA section 2412(d) to ESA section 11(g)(4). Under this approach, hours and costs necessary to both counts should be assigned to the ESA claim for attorney's fees purposes, leaving only the hours and costs necessary only to the APA claim to be paid under EAJA.
2000-November-22Use of Agency Resources to Support Presidential Transition
We adhere to the conclusion in our December 14, 1992 Memorandum that, under the Presidential Transition Act of 1963, an executive agency or department may provide office space, secretarial services, and other support services to members of the transition team from agency appropriations without reimbursement from the transition appropriation when the provision of such space and support by the agency, rather than by the transition team itself, would minimize disruption to the agency's operations caused by the transfer of the leadership of the agency.
Our conclusion in the 1992 Memorandum is not affected by the October 12, 2000 amendment to the Transition Act. Direct support services and office space for those workshops and orientations that the amendment authorizes should be provided by GSA out of the appropriation for the transition, unless their provision by a particular agency would minimize disruption of the agency's mission or operations.
2000-November-22State Taxation of Income of Certain Native American Armed Forces MembersThe Soldiers' and Sailors' Civil Relief Act prohibits States from taxing the military compensation of Native American armed forces members who are residents or domiciliaries of tribal reservations from which they are absent by reason of their military service.
2000-November-06Definition of Candidate Under 18 U.S.C. § 207(j)Individuals who otherwise meet the specifications and limitations of § 207(j)(7)(A) and (B) should be deemed to be communicating on behalf of a “candidate” through the point at which that “candidate” assumes the office to which he has been elected. 
2000-November-02Application of 18 U.S.C. § 207(d) to Certain Employees in the Treasury DepartmentThe post-employment restrictions of 18 U.S.C. § 207(d), which cover officials paid “at” the rate for level I of the Executive Schedule, do not apply to officials paid at a higher rate. Those officials are instead subject to the restrictions of 18 U.S.C. § 207(c).
2000-October-23Section 235a of the Immigration and Nationality Act
Section 235A of the Immigration and Nationality Act, requires the Attorney General to establish and maintain certain preinspection stations provided the foreign countries concerned have consented to the establishment of such stations on their territory and provided that certain other preconditions have been satisfied.
Section 235A does not oblige the Attorney General or any other Executive Branch official to enter into diplomatic negotiations with foreign countries in order to obtain their consent to the establishment of preinspection stations on their territory, and it does not require that preinspection stations be established before the preconditions have been satisfied. Accordingly, section 235A does not unconstitutionally infringes on the President's authority to conduct diplomatic relations.
2000-October-17Sharing Title III Electronic Surveillance Material With the Intelligence Community
Under Title III of the Omnibus Crime Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.
Law enforcement may also share with the intelligence community information obtained through surveillance authorized by the court pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.
2000-October-16A Sitting President's Amenability to Indictment and Criminal ProsecutionThe indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform itsconstitutionally assigned functions
2000-September-25Enforceability of 18 U.S.C. 1302Application of 18 U.S.C. 1302 to prohibit the mailing of truthful advertising concerning lawful gambling operations (except as to state-operated lotteries in some circumstances) would violate the First Amendment. Accordingly, the Department of Justice will refrain from enforcing the statute with respect to such mailings.
2000-September-18Applicability of Government Corporation Control Act to Gain Sharing Benefit AgreementThe Government Corporation Control Act does not require the National Aeronautics and Space Administration to obtain legislative authorization before entering into a “gain sharing benefit” agreement with a private corporation that grants NASA deferred cash payments based on an increase in the value of the corporation's common stock.
2000-September-15Administration of Coral Reef Resources in the Northwest Hawaiian Islands
The President may use his authority under the Antiquities Act to establish a national monument in the territorial sea.
The President may use his authority under the Antiquities Act to establish a national monument in the exclusive economic zone to protect marine resources.
The President may not establish a national wildlife refuge in the territorial sea or the exclusive economic zone using the implied power to reserve public lands recognized in United States v. Midwest Oil Co., 236 U.S. 459 (1915).
The authority to manage national monuments can, under certain circumstances, be shared between the Department of the Interior and other agencies, but the Fish and Wildlife Service must maintain sole management authority over any national wildlife refuge area within a monument. Regulations applicable to national monuments trump inconsistent fishery management plans, but the establishment of a national monument would not preclude the establishment of a national marine sanctuary in the same area.
2000-September-08Applicability of the Privacy Act to the White HouseThe Privacy Act does not apply to the White House Office, which is also known as the Office of the President.
2000-September-07Application of 18 U.S.C. § 209 to Employee-Inventors Who Receive Outside Royalty PaymentsA federal government employee who obtains patent rights to an invention made in the course of federal employment ordinarily does not violate 18 U.S.C. § 209 by licensing the patent rights to a private entity and receiving royalty payments in exchange, because the payments are not “compensation for [the employee's] services” in the government.
2000-August-31Constitutionality of 18 U.S.C. § 1120
Congress has clear constitutional authority to proscribe killings committed by escaped federal inmates serving life sentences, as provided in 18 U.S.C. § 1120, where the killings facilitate the escape or the avoidance of recapture.
Congress's penological and custodial interests in ensuring the incapacitation of life-sentenced federal inmates provide compelling support for the constitutionality of 18 U.S.C. § 1120 even when it is applied with respect to a post-escape killing that is not related to the escape or subsequent efforts to avoid recapture. 
2000-August-18Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the SenateThe Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.
2000-June-26Applicability of the Post-Employment Restrictions of 18 U.S.C. §207(c) to Assignees Under the Intergovernmental Personnel ActThe post-employment restrictions of 18 U.S.C. § 207(c) apply to persons who are assigned from a university or a state or local government to the Department of Energy under the Intergovernmental Personnel Act and are compensated at or above the ES-5 level, except for those who occupy positions ordinarily below the ES-5 level and who receive salaries only from the detailing employers, with the federal agency reimbursing those employers for an amount less than an ES-5 salary.
2000-June-26Division of Power and Responsibilities Between the Chairperson of the Chemical Safety and Hazard Investigation Board and the Board as a Whole
Under the Clean Air Act Amendments of 1990 and general principles governing the operation of boards, the day-to-day administration of Chemical Safety and Hazard Investigation Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.
In disputes over the allocation of authority in specific instances, the Board's decision controls, as long as it is not arbitrary or unreasonable.
2000-June-14EPA Assessment of Penalties Against Federal Agencies for Violation of the Underground Storage Tank Requirements of the Resource Conservation and Recovery ActThe Resource Conservation and Recovery Act authorizes the Environmental Protection Agency to assess penalties against federal agencies for violations of RCA's underground storage tank provisions. EPA's underground storage tank field citation procedures do not violate RCRA or the Constitution.
2000-June-05Authority for Military Police to Issue Traffic Citations to Motorists on Bolling Air Force Base
Military Police have the authority to issue citations, enforceable in federal court, to motorists who violate traffic laws on Bolling Air Force Base.
Congress has given the General Services Administration limited authority over military installations for the narrow purpose of issuing and enforcing the regulations related to motor vehicle violations. 
2000-May-11Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World BankThe United States Executive Director and the Alternate United States Director at the International Monetary Fund and the World Bank are not part of an Executive agency, and therefore vacancies in those offices are not covered by the Federal Vacancies Reform Act. 
2000-April-05Continuation of Federal Prisoner Detention Efforts in the Face of a USMS Appropriation DeficiencyIt is doubtful that the “authorized by law” exception to the Antideficiency Act would allow the United States Marshals Service to continue to provide prisoner detention-related functions during a deficiency in its FPD budget, but it is likely that the “emergency” exceptions set forth in § 1342 and § 1515 of that statute would apply, in many, if not all, circumstances. 
2000-March-15Date of Appointment for Purposes of Calculating the Term of an Interim United States AttorneyThe appointment date for appointment of an interim United States Attorney is established by the Attorney General's intent, and here the form of order used by the Attorney General expressly states her intent - that the appointment is made upon satisfaction of the conditions that the office is vacant and the designee takes the oath of office.
2000-March-14Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities
Section 274A of the INA, which establishes employer verification requirements and authorizes the INS to take enforcement actions against employers for failure to comply with those requirements, authorizes imposition of employer sanctions against federal government entities.
The Immigration and Naturalization Service can exercise this enforcement authority against persons and entities within all three branches in a manner consistent with the Constitution
2000-March-10Starting Date for Calculating the Term of an Interim United States AttorneyUnder 28 U.S.C. § 546(c)(2), the 120-day term of an interim United States Attorney appointed by the Attorney General is calculated from the date of the appointment, rather than the date on which the vacancy occurred. 
2000-January-29Legal Effectiveness of a Presidential Directive, as Compared to an Executive OrderA presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action. Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken.
2000-January-04Authority of the Advisory Board for Cuba Broadcasting to Act in the Absence of a Presidentially Designated ChairpersonThe Advisory Board for Cuba Broadcasting has the authority to meet and to conduct business without a presidentially designated chairperson or an acting chairperson. The Advisory Board for Cuba Broadcasting does not have the authority to elect an acting chairperson. 
2000-January-03Applicability of 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency18 U.S.C. § 205(a)(2), which bars a Federal employee from acting as an agent or attorney before any “agency . . . in connection with any covered matter in which the U.S. is a party or has a direct and substantial interest,” applies only to Federal agencies and does not apply to state agencies or agencies of the District of Columbia. 
1999
1999-December-10Participation by Processor-Owned Catcher Vessels in Inshore Cooperatives Under the American Fisheries Act of 1998Section 210(b) of the American Fisheries Act of 1998 permits catcher vessels owned by shoreside processors to participate in AFA-authorized fishery cooperatives. 
1999-October-12Appointment of a Senate-Confirmed NomineeThe President is not legally obligated to appoint a nominee to whom the Senate has given its advice and consent. Until the President takes the final public act necessary to complete the appointment, which in the case of a Senate-confirmed official is customarily evidenced by the President's signing the commission, the President retains full discretion not to appoint the nominee.
1999-October-12Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources
The Indian Civil Rights Act, rather than the federal Constitution, limits the power of an Indian tribe vis-a-vis its members. In interpreting provisions of the ICRA, it is appropriate to look to precedents under analogous constitutional provisions constraining federal and state action, although particular facts about tribal structure and traditions may be relevant to the analysis.
In some factual circumstances, a tribal ordinance prohibiting members from sharing, with researchers or others outside the tribe, information on possible commercial uses of biological resources would raise concerns under the free speech provision of the ICRA. The legality of such an ordinance would depend on a number of factorsincluding how widely known the information is; whether those who hold the information have a particular relationship of trust with the tribe; the magnitude of the tribal interest underlying the tribe's effort not to disclose the information; and whether the information can be viewed as tribal property under an intellectual property regime that is otherwise consistent with applicable law.
1999-October-07Proposed Change in EEOC Regulations Concerning Right-to-sue Notices for Public Sector EmployeesThe Equal Employment Opportunity Commission proposal to amend its procedural regulations to permit the Commission to issue a right-to-sue notice where it has failed to make a reasonable cause determination within 180 days after the filing of a charge against a state or local governmental entity is not permissible under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. 
1999-September-28Applicability of EEOC Proposed Final Rule to the Department of Veterans AffairsThe Veterans' Benefits Act is not inconsistent with the proposed Equal Employment Opportunity Commission final rule on hearings for federal employees' EEO complaints, and therefore the Department of Veterans Affairs would be subject to the rule to the same extent as other executive branch agencies. 
1999-September-16Assertion of Executive Privilege With Respect to Clemency Decision
Executive privilege may properly be asserted in response to a congressional subpoena seeking documents and testimony concerning the deliberations in connection with President's decision to offer clemency to sixteen individuals.
Executive privilege may properly be asserted in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony. 
1999-September-15Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory CommitteesRepresentative members of federal advisory committees - i.e., members who are chosen only to present the views of a private interest - are not “public officials” covered by 18 U.S.C. § 219. 
1999-September-13Office of Personnel Management Petitions for Reconsideration of Non_Precedential Merit Systems Protection Board DecisionsThe Director of the Office of Personnel Management is authorized to petition the Merit Systems Protection Board to reconsider a non_precedential decision of the Board if, and only if, the Director concludes that such decision has a substantial impact on a civil service law, rule, regulation, or policy directive. 
1999-September-10Restrictions on Travel by Voice of America CorrespondentsThe Secretary of State and Chiefs of Mission may restrict travel by Voice of America correspondents in foreign countries in order to protect their safety, but only under conditions ensuring, to the greatest extent possible, the independence of VOA correspondents. 
1999-September-01Internal Revenue Service Request for Documents in Defense Department PossessionThe Defense Contract Audit Agency is not under a legal obligation, imposed by 26 U.S.C. § 7602(a), to comply with an Internal Revenue Service request for documents in its possession.
1999-August-26Eligibility of a Dual United States Citizen for a Paid Position With the Department of JusticeSection 606 of the Treasury and General Government Appropriations Act of 1999 does not bar the Department of Justice from employing, in a paid position, a United States citizen who is also a citizen of another country. 
1999-July-30The Inapplicability of Federal Vacancies Reform Act's Reporting Obligations for PAS Officers Serving Under Statutory Holdover ProvisionsThere is no “vacancy” within the meaning of the Federal Vacancies Reform Act of 1998 when a presidentially appointed, Senate_confirmed officer continues to hold a position under a statutory holdover provision and therefore the holdover service is not reportable under the Act. 
1999-July-14Testimony Concerning the Federalism Accountability Act
Provisions of the proposed Federalism Accountability Act that would alter the rules under which courts determine whether Congress has preempted state law by statute or authorized preemption by regulation could have far reaching and unintended consequences and should only be enacted if Congress determines that existing preemption doctrine has systematically frustrated congressional intent and that statutory rules of construction would produce better results.
Provisions of the bill that would instruct courts to resolve ambiguities in federal law in favor f preserving the authority of the states could frustrate the intentions of Congress and rulemaking agencies and should not be enacted. 
1999-June-15Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion
Attorney General may enter into settlements that would limit the future exercise of executive branch discretion when that discretion has been conferred upon the executive branch pursuant to statute and there exists no independent statutory limitation on the authority of the executive branch to so limit the future exercise of that discretion.
The Attorney General's power to enter into settlements that would limit the future exercise of discretion that has been conferred upon the executive branch directly by the Constitution is constrained by the very constitutional provisions that vest discretionary authority in the President and therefore necessarily preclude the President from subjecting the exercise of that discretion to the control of the other party to a settlement or to judicial enforcement.
Article III of the Constitution does not preclude the executive branch from entering into judicially enforceable discretion limiting settlements as a general matter or bar federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction. Article III limitations may arise, however, when, for example, the terms of the governmental promise are too amorphous to be susceptible to Article III federal judicial enforcement.
Although there may be sound policy reasons to reaffirm Attorney General Meese's 1986 policy regulating the use of discretion limiting settlements, the concerns that led to its adoption do not, in general, amount to legally binding limitations on the scope of the executive branch's power to settle litigation in a manner that may limit the future exercise of executive branch discretion. 
1999-May-27Term of a Member of the Mississippi River CommissionThe term of a member of the Mississippi River Commission is set by the statute governing his office, and the term dictated by the statute applies even though the language of his nomination, confirmation, and commission calls for a different term. 
1999-May-26Accessibility Guidelines and Federal Lease RenewalsThe Architectural and Transportation Barriers Compliance Board may require, pursuant to the Architectural Barriers Act of 1968, that buildings first leased by federal agencies after 1976 be brought into compliance with current accessibility standards when the agency negotiates renewal of the lease. 
1999-May-18Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information
(Posted 2009-August-24)
Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which concerns the authority of federal, state, and local government officials and entities to disclose to the Immigration and Naturalization Service information regarding an individual's citizenship or immigration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the disclosure of covered census information by census officials.
1999-May-11USMS Obligation to Take Steps to Avoid Anticipated Appropriations DeficiencyUnder the apportionment provisions of the Antideficiency Act, the United States Marshals Service has an affirmative obligation to take steps to avoid a deficiency in its Federal Prisoner Detention budget and any drastic curtailment of its prisoner detention services by reducing current expenditures and/or exploring alternative sources of funding that would not depend upon the receipt of additional funds from Congress.
1999-April-30Whether and Under What Circumstances Government Reproduction of Copyrighted Materials Is a Noninfringing “Fair Use” Under Section 107 of the Copyright Act of 1976
Although government reproduction of copyrighted material for governmental use would in many contexts be a noninfringing fair use under section 107 of the Copyright Act of 1976, such government reproduction of copyrighted material does not invariably qualify as a “fair use.”
An agency that decides to negotiate a photocopying license should seek to limit the scope of the licensing agreement so as not to cover those photocopying practices that the agency, in good faith, concludes are not infringing.
In order to determine whether a particular government photocopying practice is a “fair use,” the ultimate question to be answered is whether permitting the government to continue to engage in the practice without paying a licensing fee would stimulate productive thought and public instruction, or yield other societal benefits, without excessively diminishing the incentives for creativity.
1999-April-05Applicability of Trade Secrets Act to Intragovernmental Exchange of Regulatory InformationThe disclosure to certain federal financial regulatory agencies of propriety information of the Office of Federal Housing Enterprise Oversight obtained from the finance institutions it regulates would be “authorized by law” within the meaning of the Trade Secrets Act and therefore would not violate that Act's prohibitions against unauthorized agency disclosures of trade secrets or other confidential business information
1999-March-21Guidance on Application of Federal Vacancies Reform Act of 1998This memorandum provides guidance on the application of the Federal Vacancies Reform Act of 1998 to vacancies in Senate-confirmed offices within the executive branch.
1999-March-12Gulf War Veterans Health Statutes
Section 1604 of the Persian Gulf War Veterans Act of 1998 is constitutionally invalid and ineffective insofar as it purports to nullify prospectively certain described legislation that might be enacted in the future.
Overlapping provisions of the Veterans Programs Enhancement Act of 1998 and the Persian Gulf War Veterans Act of 1998, although redundant and burdensome in some respects if both statutes are given effect, are not inherently conflicting or mutually exclusive, and therefore the provisions of both laws must be treated as valid and effective. 
1999-February-11Attorney's Fees for Legal Service Performed Prior to Federal Employment18 U.S.C. § 205 prohibits a Civil Division attorney from receiving attorney's fees for work in a case against the United States performed prior to federal employment when the right to payment depends on a finding of liability and award against the United States that takes place after the attorney's entry into federal employment. 
1999-January-26Applicability of 18 U.S.C. § 208 to National Gambling Impact Study CommissionThe National Gambling Impact Study Commission is not an “independent” agency for purposes of a criminal conflict of interest statute, 18 U.S.C. § 208. 
1999-January-11Application of 18 U.S.C. § 205 to Employees Serving on an Intergovernmental Personnel Act AssignmentA federal employee assigned to a state or local government or other non-federal entity under the Intergovernmental Personnel Act is not prohibited by 18 U.S.C. § 205 from representing the interest of the non-federal entity before the federal government, including the employee's agency, if such representational activity is affirmatively included with the scope of the employee's assignment as determined by the federal agency head.
1999-January-07Applicability of 18 U.S.C. § 1721 to Collection of Fee for Stamped CardsThe Postal Service may charge a fee for stamped cards in addition to the face value of the postage without violating 18 U.S.C. § 1721.
1998
1998-December-04Proposed Settlement of Diamond v. Department of Health &Amp; Human ServicesThe Department of Health and Human Services may lawfully enter into settlement providing that the positions of specific employees will not be reclassified until they vacate the positions if, in light of the facts of the case and recognizing the inherent uncertainty of litigation, the agency concludes that the court might find there was a cognizable danger of recurrent sexual discrimination in the reclassifications in violation of Title VII of the Civil Rights Act of 1964.
1998-December-03Miscellaneous Receipts Act Exception for Veterans' Health Care RecoveriesThe Veterans Reconciliation Act of 1997 creates an exception to the Miscellaneous Receipts Act to the extent that a recovery or collection under the Federal Medical Care Recovery Act is based on medical care or services furnished under chapter 17 of title 38, United States Code, and thus allows the deposit of such a recovery or collection in the Department of Veterans Affairs Medical Care Collections Fund.
1998-November-06Presidential Determination Allowing Financial Assistance to TibetPresident Carter's 1980 determination that financial assistance to the People's Republic of China would be in the national interest satisfies the requirements of section 2(b)(2) of the Export_Import Bank Act of 1945 and thus permits the Export_Import Bank to provide assistance to the region of Tibet, its provincial government, and its residents without any presidential action in addition to the prior determination made with respect to China. 
1998-October-07The Authority of the Bureau of the Census to Adjust Population Data for Purposes Other Than ApportionmentThe Commerce Department has the authority to use sampling and other recognized statistical procedures in order to correct the unadjusted population figures obtained in the decennial census for the year 2000, at least for purposes other than providing the basis for apportioning seats in the United States House of Representatives.
1998-September-24Lack of Authority of the Office of the United States Trade Representative to Represent Private Industry in Proceedings Before the United States International Trade CommissionThe Office of the United States Trade Representative lacks authority under the Trade Act of 1974 or its own organic statute to provide legal representation to a private domestic industry in administrative proceedings before the United States International Trade Commission.
1998-September-21Whether the Fifth Amendment Prohibits Disclosure of the Results of a Court-Ordered Mental Examination to the Government During the Guilt Phase of a TrialThe Fifth Amendment privilege against self-incrimination does not prohibit disclosure to the government, during the guilt phase of a trial, of the results of a court-ordered mental examination. 
1998-September-11Official Service by State Department Employees on the Boards of American-Sponsored Schools OverseasOfficial service by State Department employees on the boards of American- sponsored schools overseas is authorized by statute and does not violate 18 U.S.C. § 208.
1998-August-28Authority of the D.C. Council Under the Home Rule Act to Amend the Schedule of Heights of Buildings
The Council of the District of Columbia has the authority, under section 602(a)(6) of the Home Rule Act of 1973, to amend the Schedule of Heights of Buildings Adjacent to Public Buildings as long as any amendment is within the overall limitations set forth in the Building Height Act of 1910.
The D.C. Council's authority is not further restricted by the limitations contained in the Schedule of Heights that was in effect on December 24, 1973
1998-August-24Application of 18 U.S.C. § 208 to Service by Executive Branch Employees on Boards of Standard-Setting OrganizationsUnder 18 U.S.C. § 208, a federal employee may serve as a member of the board of a private voluntary standards organization to the extent necessary to permit participation in his or her official capacity in the organization's standard-setting activities. 
1998-August-18Construction of State Reporting Requirements in Section 404 of the Personal Responsibility and Work Opportunity Reconciliation ActThe better interpretation of the state reporting requirements in section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act is that they apply only to those state agencies administering the particular federally funded program in question, not to all state agencies in a State that receives funds under the program. 
1998-August-07Applicability of 18 U.S.C. § 208 to Service by Federal Officials on the District of Columbia Downtown Business Improvement District Corporation Board of DirectorsA federal official serving on the Board of Directors of the D.C. Downtown Business Improvement District Corporation in his or her official capacity is not a director of an outside organization within the meaning of 18 U.S.C. § 208, and therefore the official's service is not barred by § 208.
1998-July-30Ineligibility of New Jersey Transit Corporation Board Member for Appointment to Amtrak Board of DirectorsA public member of the Board of Directors of the New Jersey Transit Corporation constitutes a representative of rail management under Section 411(a) of the Amtrak Reform and Accountability Act of 1997 and is therefore ineligible for appointment to the Amtrak Board of Directors. 
1998-July-28Constitutional Concerns Raised by the Collections of Information Antipiracy ActThe proposed Collections of Information Antipiracy Act raises difficult and novel constitutional questions concerning Congress's power to restrict the dissemination of information. Congress may not, pursuant to the Intellectual Property Clause of the Constitution, create “sweat of the brow” protection for compiled facts, at least insofar as such protection would extend to what the Supreme Court has termed the nonoriginal portion of such a compilation. Either or both the Intellectual Property Clause and the First Amendment may impose limitations on the exercise of congressional power under the Commerce Clause that would raise serious constitutional concerns regarding the constitutionality of the bill. 
1998-July-28Administrative Settlement of Disputes Concerning Determinations of Mineral Royalties Due the GovernmentThe Department of the Interior is authorized, before the completion of an administrative appeal, to settle disputed determinations of mineral royalties due the Government exceeding $100,000 made by the Minerals Management Service without obtaining the approval of the Justice Department under the Federal Claims Collection Act.
1998-July-22Appropriate Source for Payment of Judgments and Settlements in United States v. Winstar Corp. and Related CasesThe Federal Savings and Loan Insurance Corporation Resolution Fund is the appropriate source of payment for judgments against, and settlements by, the United States in United States v. Winstar Corp. and similar cases arising from the breach of certain agreements to which the Federal Savings and Loan Insurance Corporation was a party.
1998-June-18Waiver of Statutes of Limitations in Connection With Claims Against the Department of Agriculture
The Supreme Court's decision in Irwin v. Department of Veterans Affairs made no alteration in the fundamental rules governing waivers of sovereign immunity in actions against the United States. Irwin and the cases following it therefore provide no support for the novel conclusion that the executive branch has the discretion to dispense with a congressional mandated statute of limitations in litigation or the compromise of claims. Unless Congress provides to the contrary, adherence to the relevant statute of limitations remains a strict and non-waivable condition on suits against the federal government.
Enactment of legislation authorizing the payment of claims barred by the statute of limitations under the Equal Credit Opportunity Act is the necessary and constitutionally appropriate means of satisfying such claims. 
1998-June-12Access to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal Justice Functions
Non-governmental entities performing authorized criminal justice functions under contract with government law enforcement agencies may be granted access to criminal history records maintained under the authority of 28 U.S.C. § 534, subject to effective controls to guard against unauthorized use and to insure effective oversight by the Department of Justice.
Because Department of Justice regulations implementing 28 U.S.C. § 534 do not affirmatively authorize dissemination of criminal history records to non_governmental entities under contract to assist law enforcement agencies, those regulations should be amended to provide such authorization before access is granted to those entities.
1998-June-01Appointment of Vice Chair of Federal Reserve Board to Serve Concurrently as Chair of the District of Columbia Financial Responsibility and Management Assistance AuthorityThe Vice Chair of the Federal Reserve Board may also serve as Chair of the District of Columbia Financial Responsibility and Management Assistance Authority without violating sections 205 or 208 of title 18. Her dual service would also have to comply with the Federal Reserve Act's “entire-time” requirement. 
1998-May-26Effect of Posse Comitatus Act on Proposed Detail of Civilian Employee to the National Infrastructure Protection CenterThe proposed detail of a civilian employee of Department of Defense to the National Infrastructure Protection Center, a component of the Federal Bureau of Investigation, is permissible under the Posse Comitatus Act. 
1998-May-20Whistleblower Protections for Classified Disclosures
A Senate bill addressing the disclosure to Congress of classified “whistleblower” information concerning the intelligence community is unconstitutional because it would deprive the President of the opportunity to determine how, when and under what circumstances certain classified information should be disclosed to Members of Congress.
A House bill addressing the same subject is constitutional because it contains provisions that allow for the exercise of the President's constitutional authority. 
1998-May-13Constitutionality of Proposed Limitations on Tobacco Industry
Congress has the authority under the Constitution to impose significant new regulations on tobacco companies, including (1) restrictions on advertising and marketing of tobacco products that are tailored to prevent access to advertising by minors; (2) contingent monetary exactions, to be collected from tobacco companies if tobacco use by minors fails to meet prescribed targets; and (3) requirements that companies disclose certain documents to the public and to federal regulators.
Consent by the tobacco companies to increased federal regulation, which those companies might grant in order to qualify for federally prescribed limits on liability, would permit Congress to establish additional restrictions on tobacco advertising that it could not impose directly.
1998-April-30Legal Authority of Executive Office of the President to Require Independent Agencies to Conduct Background Checks of Noncareer SES Personnel CandidatesNo office or agency within the Executive Office of the President may require independent agencies to conduct certain background checks of candidates for noncareer Senior Executive Service positions. 
1998-April-22Coverage Issues Under the Indian Self-determination Act
The 1990 amendment to the Indian Self-Determination and Education Asistance Act of 1975 covers only those torts for which the Federal Tort claims Act waives the sovereign immunity of the United States.
The 1990 amendment does not authorize or otherwise address representation of tribes or tribal employees who are sued in their individual capacities for constitutional torts.
1998-April-20Possible Bases of Jurisdiction for the Department of Justice to Investigate Matters Relating to the Assassination of Martin Luther King, Jr.The Department of Justice may conduct an investigation relating to the assassination of Martin Luther King, Jr., to investigate the commission of federal crimes for which the applicable statute of limitations has run, in order to establish the facts of the crime, independent of whether such facts may lead to a prosecution.
1998-April-09Application of the Double Jeopardy Clause to Disgorgement Orders Under the Federal Trade Commission ActIn a civil suit brought by the Federal Trade Commission challenging unfair trade practices, the Double Jeopardy Clause of the Fifth Amendment is not implicated by a judgment requiring restitution and ordering that, in the event restitution is impracticable, the defendant pay money to the United States Treasury. 
1998-March-19Interpretation of Phrase “Recommendation That Funds Be Put to Better Use” in Inspector General ActAlthough it is a close question, the better interpretation of the Inspector General Act is that Congress did not intend to limit the phrase “recommendation that funds be put to better use” to only those audit recommendations that achieve identifiable monetary savings. 
1998-March-17The Vacancies ActThe Vacancies Act is not the exclusive authority for temporarily assigning the duties of a Senate-confirmed office. Statutes vesting an agency's powers in the agency head and allowing delegation to subordinate officials also may be used to assign, on an interim basis, the duties of certain vacant Senate-confirmed offices.
1998-March-12Applicability of 18 U.S.C. § 431 to Limited Partnership Interests in Government Leases Under Proposed Modified TransactionA modified version of the proposed real estate transaction described in the February 17, 1998 opinion that gives the blind trusts no interest in any government contracts is permissible under 18 U.S.C. § 431.
1998-February-17Applicability of 18 U.S.C. §§ 431-433 to Limited Partnership Interests in Government Leases Under Proposed TransactionThe interests of two Members of Congress under a proposed real estate transaction involving limited partnership interests in government leases would fall within the prohibition of 18 U.S.C. § 431.
1998-February-02Reimbursement of Expenses Under 5 U.S.C. § 5503(a)5 U.S.C. § 5503(a) does not prohibit individuals reappointed to the Board of Directors of the Civil Liberties Public Education Fund during a congressional recess from receiving reimbursement for travel, subsistence, and other necessary expenses associated with performing their functions.
1998-January-29Statute of Limitations and Settlement of Equal Credit Opportunity Act Discrimination Claims Against the Department of Agriculture
The Attorney General may not waive the statute of limitations in the litigation or compromise of pending claims against theUnited States.
Absent a specific provision to the contrary, a statute of limitations on civil actions also should apply to administrative settlements of claims arising under that statute pursuant to 31 U.S.C. § 3702.
31 U.S.C. § 3702 does not authorize USDA to pay compensatory damages in an administrative settlement of an ECOA claim if ECOA's two year statute of limitations has run.
Filing an administrative claim with USDA does not toll ECOA's statute of limitations.
ECOA's statute of limitations is, in appropriate circumstances, subject to the doctrines of equitable tolling and equitable estoppel. 
1998-January-2818 U.S.C. § 203 and Contingent Interests in Expenses Recoverable in Litigation Against the United States18 U.S.C. § 203 does not prohibit a prospective government officer from maintaining upon his entry into government service a contingent interest in expenses recoverable in litigation involving the United States.
1997
1997-December-11Application of Consumer Credit Reporting Reform Act of 1996 to Presidential Nomination and Appointment Process18 U.S.C. § 203 does not prohibit a prospective government officer from maintaining upon his entry into government service a contingent interest in expenses recoverable in litigation involving the United States.
1997-December-03Reappointment of a Retired Judge to the Court of Federal ClaimsThe President may nominate and, subject to the advice and consent of the Senate, appoint to the U.S. Court of Federal Claims an individual who has previously retired from that Court and who is receiving a retirement annuity as a senior judge. Upon assumption of active judicial service, the judge must forfeit the retirement annuity for the duration of the service. 
1997-October-27Applicability of 18 U.S.C. § 209 to Acceptance by FBI Employees of Benefits Under the “Make a Dream Come True” ProgramThe criminal prohibition on supplementation of salary, 18 U.S.C. § 209, does not prohibit Federal Bureau of Investigation employees from receiving benefits under the Society of Former Special Agents of the FBI's “Make a Dream Come True” Program
1997-September-25Funds Available for Payment of Natural Resource Damages Under the Oil Pollution Act of 1990The President, acting through the Department of Transportation, is authorized to use the Oil Spill Liability Trust Fund to pay the claims of Natural Resource Trustees for uncompensated natural resource damages in accordance with section 1013 of the Oil Pollution Act of 1990, without the need for further enactment of appropriations.
1997-September-23Authority to Investigate Complaints by Employees of the Federal Aviation Administration Alleging Reprisal for WhistleblowingThe Office of Special Counsel lacks authority to investigate complaints brought by Federal Aviation Administration employees alleging reprisals against them in response to whistleblowing activity.
1997-September-02Application of Emoluments Clause to Representative Members of Advisory CommitteesThe Emoluments Clause of the Constitution does not apply to . representative. members of advisory committees, that is, members who are chosen to present the views of private organizations and interests.
1997-August-14Disclosure of Grand Jury Material to the Intelligence Community
Grand Jury material subject to the requirements of Rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed to agencies in the Intelligence Community insofar as necessary to assist government attorneys in performing their duties to enforce federal criminal law, but may not be used by the recipient agencies for other purposes.
In circumstances where there is a compelling necessity for grand jury material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense and where the President has authorized the provision of such material to the Intelligence Community, we believe that a court should and would authorize such disclosure outside the provisions of Rule 6(e), on the basis of Article II of the Constitution and separation of powers principles. Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made by attorneys for the Government even without prior court approval.
Section 104(a) of the National Security Act, as implemented by Executive Order No. 12333, does not provide sound authority for Justice Department disclosure of grand jury material related to the national security to the Director of Central Intelligence outside the provisions of Rule 6(e). 
1997-August-11Use of General Agency Appropriations to Purchase Employee Business Cards
Nothing in the Omnibus Consolidated Appropriations Act of 1997 expressly provides for, or prohibits, the expenditure of appropriations of the General Services Administration for the purchase of employee business cards.
In the absence of a contrary provision or limitation in its appropriations act or other applicable legislation, GSA may lawfully obligate a general or lump-sum appropriation for the purchase of business cards for suitable mission-related use by GSA employees.
Depending upon the purpose for which they are to be used, GSA's purchases of business cards for its employees may be chargeable either to its limited appropriation for “reception and recreation expenses” or to its general appropriation. 
1997-August-06Applicability of Section 514 of the 1997 Education Appropriations Act to Post-Secondary Student Aid ProgramsSection 514 of the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1997, which bars the provision of appropriated funds, by contract or grant, to any institution of higher education that denies campus access to military recruiters or Reserve Officer Training Corps representatives, applies to so-called “campus-based” student aid programs, which involve grants to educational entities, but does not apply to direct aid programs, which involve grants to students rather than to educational entities.
1997-August-01Authority of Military Exchanges to Lease General Purpose Office SpaceThe Navy Exchange Service Command, a non-appropriated fund instrumentality (“NAFI”), and similar military exchange units constitute integral components of the Department of Defense and their leasing authority, like that of other DoD components, is subject to the provisions of Reorganization Plan No. 18 of 1950, notwithstanding their status as NAFIs. Accordingly, they are not authorized to lease general purpose urban office space unless such authority is delegated to them by the General Services Administration.
1997-August-01Removal of Holdover Officials Serving on the Federal Housing Board and the Railroad Retirement BoardThe President may remove, without cause, members of the Federal Housing Board and the Railroad Retirement Board who are serving in holdover capacities and do not enjoy express tenure protection by statute.
1997-August-01Applicability of 3 U.S.C. § 112 to Detailees Supporting the President's Initiative on Race3 U.S.C. § 112 does not apply to the details of employees to support the President's Initiative on Race. 
1997-July-16Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air ActThe Clean Air Act authorizes the Environmental Protection Agency administratively to assess civil penalties against federal agencies for violations of the Act or its implementing regulations. Separation of powers concerns do not bar EPA's exercise of this authority because it can be exercised consistent with the Constitution.
1997-June-18Funding of State Department Settlements of Foreign Tort ClaimsBecause 22 U.S.C. § 2669(f) expressly authorizes the Secretary of State to pay settlements of foreign tort claims from funds appropriated for the activities included in the State Department Basic Authorities Act or from funds “otherwise available,” the payment of such settlements is “otherwise provided for” within the meaning of 31 U.S.C. § 1304(a), and therefore the federal Judgment Fund is not available for the payment of such settlements.
1997-June-12Applicability of 18 U.S.C. § 208 to the Federal Communications Commission's Representative on the Board of Directors of the Telecommunications Development FundBecause the Telecommunications Development Fund is a non-profit entity that is owned, funded, and controlled by the federal government, it is not an“organization” within the meaning of 18 U.S.C. § 208. Therefore, the restrictions in § 208 do not apply to the service of the Federal CommunicationsCommission's General Counsel on the Board of Directors of the Fund.
1997-May-28National Archives Access to Taxpayer InformationNeither the Secretary of the Treasury nor the President can permit the National Archives and Records Administration to inspect tax returns or return information, pursuant to 44 U.S.C. § 2906 (a)(2), for purposes of appraising the records.
1997-May-06Service by Federal Officials on the Board of Directors of the Bank for International Settlements18 U.S.C. § 208(a) does not prohibit the Chairman of the Federal Reserve Board and the President of the Federal Reserve Bank of New York from serving in their official capacities on the Board of Directors of the Bank for International Settlements..
1997-April-25Immunity of Smithsonian Institution From State Insurance LawsFor purposes of the federal government immunity arising from the Supremacy Clause of the Constitution, the Smithsonian Institution is treated as an instrumentality of the United States that is imbedded in the structure of the federal government. The Smithsonian Institution is constitutionally immune from state insurance laws and state licensing requirements that would otherwise apply to its issuance of gift annuities.
1997-April-22The Applicability of Executive Order No. 12976 to the FDICNeither the FDIC's broad discretion to determine the compensation of its employees nor its status as an independent agency exempts the FDIC from the requirements of Executive Order No. 12976.
1997-April-18Personal Satisfaction of Immigration and Nationality Act Oath Requirement
Section 504 of the Rehabilitation Act does not require accommodation for persons unable to form the mental intent necessary to take the naturalization oath of allegiance prescribed by section 337 of the Immigration and Nationality Act.
The oath requirement of section 337 may not be fulfilled by a guardian or other legal proxy. 
1997-April-01Calculating Rate of Pay of Department of Justice Employees for Purposes of “Covered Persons” Determination Under Independent Counsel ActThe term “rate of pay” in the section of the Independent Counsel Act that indicates which Department of Justice employees are “covered persons” does not include “locality-based comparability payments” under 5 U.S.C. § 5304.
1997-March-26Qualification Requirement for Aliens Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996The phrase “40 qualifying quarters of coverage” in title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 can fairly be interpreted as incorporating the methodology under section 213 of the Social Security Act for calculating quarters of coverage, but not also the strict definitions of wages, employment, and self-employment income under other sections of the Social Security Act.
1997-March-09Preemptive Effect of the Bill Emerson Good Samaritan Food Donation ActThe Bill Emerson Good Samaritan Food Donation Act (“Act”) preempts state “good samaritan” statutes that provide less protection than the Act from civil and criminal liability arising from food donated in good faith for distribution to the needy.
1997-March-03Revocation of CitizenshipThe Immigration and Naturalization Service has authority to institute either administrative or judicial proceedings to denaturalize citizens whose criminal convictions disqualified them from citizenship as a matter of law. Whether the proceedings are administrative or judicial, the INS must establish the allegations in its complaint by clear, unequivocal, and convincing evidence
1997-February-21Authority of the Attorney General to Grant Discretionary Relief From Deportation Under Section 212(c) of the Immigration and Nationality Act as Amended by the Antiterrorism and Effective Death Penalty Act of 1996The amendment of section 212(c) of the Immigration and Nationality Act by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 deprived the Attorney General of the authority to grant discretionary relief from deportation for aliens who committed certain crimes. Section 440(d) applies to section 212(c) applications for discretionary relief pending on the effective date of AEDPA. 
1997-February-05Waiver of Oath of Allegiance for Candidates for NaturalizationThe required oath of allegiance as a condition of naturalization under section 337 of the Immigration and Nationality Act, 8 U.S.C. § 1448(a), cannot be waived.
1997-January-29Delegation of the President's Power to Appoint Members of the National Ocean Research Leadership CouncilDraft amendments to 10 U.S.C. § 7902 empowering the President to delegate to the head of a department his authority to appoint certain members of the National Ocean Research Leadership Council would not violate the Constitution's Appointments Clause.
1997-January-14Bureau of Prisons Disclosure of Recorded Inmate Telephone Conversations
The policy of the Criminal Division requiring outside law enforcement officials to obtain some form of legal process authorizing access to contents of inmate telephone conversations is not mandated by the Constitution or Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
The practice of profiling specific groups of inmates for monitoring raises concerns when it requires or causes the Bureau of Prisons to alter its established monitoring procedures for purposes unrelated to prison security or administration.
Inmates have a First Amendment right to some minimum level of telephone access, subject to reasonable restrictions related to prison security and administration. Under certain circumstances they also may have a Sixth Amendment right to make telephone calls to their attorneys.
1997-January-14Proposed Agency Interpretation of “Federal Means-Tested Public Benefits” Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996The interpretation of the phrase “federal means-tested public benefit” in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 proffered by the Departments of Health and Human Services and Housing and Urban Development - that it applies only to mandatory (and not discretionary) spending programs - constitutes a permissible and legally binding construction of the statute
1996
1996-December-31Application of the Ineligibility ClauseThe Ineligibility Clause of the Constitution would not bar the appointment of Representative Bill Richardson to serve as United States Ambassador to the United Nations or of Senator William Cohen to serve as Secretary of Defense.
1996-November-26Access to Classified InformationThis memorandum provides an opinion on various legal questions posed by a panel appointed by the Director of Central Intelligence to make a recommendation on whether an official at the Department of State, Richard Nuccio, should be granted access to Sensitive Compartmented Information.
1996-November-25Authority to Exempt Programs Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996The Attorney General may not exempt California's prenatal care program under § 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 because eligibility for, and the recipient's share of the cost of benefits provided by, that program are conditioned on the recipient's income.
1996-November-25Validity of Congressional-Executive Agreements That Substantially Modify the United States' Obligations Under an Existing TreatyIt lies within Congress's power to authorize the President substantially to modify the United States' domestic and international legal obligations under a prior treaty, including an arms control treaty, by making an executive agreement with our treaty partners, without Senate advice and consent.
1996-November-21Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal WatersUndocumented aliens seeking to reach the United States aboard a vessel that has reached the internal waters of the United States at the time of interdiction, but who have not come ashore on United states dry land, are not entitled to deportation proceedings or other proceedings under the Immigration and Nationality Act.
1996-November-19Service on the Board of Directors of Non-Federal Entities by Federal Bureau of Investigation Personnel in Their Official CapacitiesSection 208 of title 18 prohibits a government employee from serving on the board of directors of an outside organization in his or her official capacity, unless the service is authorized by statute or the employee obtains either a release of fiduciary obligations by the organization or a waiver of the requirements of section 208.
1996-November-12Legal Effectiveness of Congressional Subpoenas Issued After an Adjournment Sine Die of CongressA congressional subpoena issued after an adjournment sine die of Congress lacks any legal force and effect and does not impose any legal obligation to comply with the subpoena.
1996-October-31UN Draft Declaration on the Rights of Indigenous GroupsThe Constitution would not bar the federal government from establishing the kind of government-to-government relationship it presently maintains with federally recognized Indian tribes with other appropriately constituted indigenous communities within the jurisdiction of the United States.
1996-October-11Eligibility of a Noncitizen Dual National for a Paid Position Within the Department of JusticeThe Department of Justice must determine the . dominant, effective. nationality of a noncitizen with dual nationality to determine that person's eligibility for a paid position in the Department under section 606 of the Treasury, Postal Service, and General Government Appropriations Act, 1997.
1996-October-08Department of Justice Participation on the Internal Revenue Service Undercover Review CommitteeDisclosure of tax return information to a Department of Justice attorney serving on the Undercover Review Committee of the Internal Revenue Service is permissible under § 6103 of title 26 of the United States Code as a limited referral for legal advice. 
1996-October-07The Constitutionality of Cooperative International Law Enforcement Activities Under the Emoluments ClauseThe Emoluments Clause of the Constitution does not bar a proposed cooperative maritime counter-narcotics operation because the foreign naval personnel assisting U.S. law enforcement personnel would not hold an . Office of Profit or Trust. under the United States.
1996-September-30Assertion of Executive Privilege for Memorandum to the President Concerning Efforts to Combat Drug TraffickingExecutive privilege may properly be asserted with respect to a memorandum to the President from the Director of the Federal Bureau of Investigation and the Administrator of the Drug Enforcement Administration containing confidential advice and recommendations regarding efforts to combat drug trafficking. The memorandum was subpoenaed by the Subcommittee on National Security, International Affairs and Criminal Justice of the Committee on Government Reform and Oversight of the House of Representatives.
1996-September-27Submission of Aviation Insurance Program Claims to Binding Arbitration
In insurance policies issued to air carriers pursuant to authority arising under chapter 443 of title 49, the Secretary of Transportation may include “50-50 clauses,” which require that disputes between insurers over coverage liability be submitted to binding arbitration unless the insurers are able to negotiate a settlement in advance, if the use of such clauses is an accepted practice in the aviation insurance business.
49 U.S.C. § 44309 does not preclude the use of binding arbitration to resolve disputes regarding the liability of the United States for losses insured under chapter 443.
50-50 clauses included in insurance policies issued under chapter 443 may include a provision for arbitration under state or foreign law if it is a common practice of the commercial insurance business to resolve liability disputes by reference to the decisional rules of a non-federal sovereign.
1996-September-20Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs With Respect to HaitiExecutive privilege may properly be asserted with respect to certain documents subpoenaed by the Committee on International Relations of the House of Representatives that concern the Administration's conduct of foreign affairs with respect to Haiti.
1996-September-18Permissible Accommodation of Sacred SitesThe Establishment Clause of the First Amendment does not bar either an Executive Order that requires the accommodation of ceremonial use of sites on federal land that are sacred to federally recognized Indian tribes or a National Park Service regulation, designed to implement that Order, that prohibits the issuance of commercial climbing licenses at one such site during a period of religious significance.
1996-September-1218 U.S.C. § 207 and the Government of Guam18 U.S.C. § 207(a)(1) prohibits a former Department of the Navy employee from representing the Government of Guam before the Federal Maritime Commission in a litigation in which he participated personally and substantially while employed by the Navy.
1996-September-11Applicability to Executive Privilege to Deliberations Regarding Assertion of PrivilegeDocuments reflecting and constituting deliberative communications within the White House Counsel's Office and between that Office and the Department of Justice relating to advice and recommendations to the President on the assertion of executive privilege are themselves a proper subject of a claim of executive privilege. 
1996-September-10Transmission by a Wireless Carrier of Information Regarding a Cellular Phone User's Physical Location to Public Safety Organizations
Neither 47 U.S.C. § 1002(a) nor the Fourth Amendment of the Constitution prohibits a wireless carrier's transmission to local public safety organizations of information regarding the physical location of a caller who uses a cellular telephone to dial the 911 emergency line.
Although 18 U.S.C. § 2703 would apparently apply to the carrier's transmission of such location information to public safety organizations, the caller, by dialing 911, has impliedly consented to such disclosure, thus permitting the federal government to require the carrier to disclose such information without a warrant or court order.
1996-September-10Fourth Amendment Issues Raised by Chemical Weapons Inspection RegimeThe inspection regime to be created by the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed Chemical Weapons Implementation Act, under which inspections of facilities that produce certain chemicals would occur, absent exigent circumstances, only after the United States Government obtained the consent of the owner or operator of the facility, an administrative warrant, or a criminal search warrant, is consistent with the Fourth Amendment to the Constitution.
1996-September-03Immunity of the Council to the President From Compelled Congressional TestimonyExecutive privilege is assertable in response to a congressional subpoena seeking the testimony of the Counsel to the President because the Counsel serves as one of the President's immediate advisers and is therefore immune from compelled congressional testimony. 
1996-August-15Contractor Access to Information From Interstate Identification Index
The Office of Personnel Management and other agencies have authority to disclose criminal history records information to private contractors performing background investigations of government employees or prospective employees.
OPM and other agencies also have authority to permit those contractors to have controlled on-line access to criminal history records of individuals subject to background investigations through the Interstate Identification Index system.
1996-July-26Nomination of Sitting Member of Congress to Be Ambassador to VietnamThe Ineligibility Clause does not bar the nomination of Representative Pete Peterson to be Ambassador of the Socialist Republic of Vietnam, provided that the President does not make the determination to create the office of ambassador to that government until after the expiration of the term for which Representative Peterson was elected. 
1996-July-23Government Printing Office Involvement in Executive Branch PrintingThe Office of Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated May 31, 1996, regarding Government Printing Office involvement in executive branch printing.
1996-July-01Constitutionality of Statute Governing Appointment of United States Trade Representative19 U.S.C. § 2171(b)(3), which prohibits the appointment as United States Trade Representative of any person who has “represented, aided, or advised a foreign entity” in a trade negotiation or dispute with the United States, is an unconstitutional intrusion on the President's appointment power and thus has no legal effect
1996-June-28Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act of 1995The Mexican Debt Disclosure Act of 1995 requires that, before certain assistance is extended to Mexico, the President must certify that he has provided the House of Representatives with the documents described in House Resolution 80. The President submitted a certification that indicated that the executive branch had not provided the House documents as to which it had informed the House that it would be inconsistent with the public interest to provide the documents to the House. The Act is best interpreted as incorporating an exception for those documents as to which disclosure would not be in the public interest. Therefore, the President's certification was a legally sufficient formulation of the certification required by the Act. 
1996-June-26Constitutionality of Legislative Provision Regarding ABM TreatyThere are serious doubts as to the constitutionality of a provision of a bill stating that the United States shall not be bound by any international agreement entered into by the President that would substantively modify the Antiballistic Missile Treaty with the Soviet Union, including any agreement that would add other countries as signatories or convert that bilateral treaty into a multilateral treaty, unless the agreement is entered pursuant to the President's treaty making power. The provision intrudes on the Executive's exclusive constitutional powers to interpret and execute treaties and to recognize foreign States. 
1996-June-21FBI Authority to Investigate Violations of Subtitle E of Title 26 or 18 U.S.C. Sections 921-930The Federal Bureau of Investigation has authority to participate in investigations of violations of Subtitle E of Title 26 and 18 U.S.C. §§ 921-930 but may not supplant the primacy of the Department of the Treasury over investigations of such violations, unless the FBI has reason to believe that the investigation concerns a crime of terrorism over which a statute or Presidential Decision Directive 39 has given the FBI primary responsibility.
1996-June-04Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations
A provision of the Department of Agriculture appropriations legislation for Fiscal Year 1996, providing that a regulation otherwise rendered inoperative could be put into effect if a revised version of the regulation submitted by the Secretary of Agriculture was received and approved by two committees of Congress, violates the constitutional separation of powers by purporting to provide for the legislative enactment of a regulation without bicameral passage and presentment, as required by Article I of the Constitution.
This unconstitutional provision is severable from the remainder of the section and statute in which it is contained, so that the section's prohibition against the use of appropriated funds to implement the subject regulation, and its provision that the regulation may not take effect absent authorizing legislation, are both constitutionally enforceable.
All provisions of the section, including its prohibition against the regulation taking effect absent future authorizing legislation, are limited in duration to the 1996 Fiscal Year.
1996-May-31Involvement of the Government Printing Office in Executive Branch Printing and Duplicating
Section 207(a) of the Legislative Branch Appropriations Act, 1993, as amended, which requires all executive branch printing to be procured by or through the Government Printing Office, vests executive functions in an entity subject to congressional control and is therefore unconstitutional under the doctrine of separation of powers.
Agency contracting officers who act consistently with this opinion, and in derogation of the contrary view of the Comptroller General, would face little or no risk of civil, criminal, or administrative liability. 
1996-May-23Assertion of Executive Privilege Regarding White House Counsel's Office DocumentsExecutive privilege may properly be asserted with respect to certain White House Counsel's Office documents that have been subpoenaed by the Committee on Government Reform and Oversight of the House of Representatives in connection with the Committee's investigation of the White House Travel Office matter.
1996-May-21Relocation Deadline Provision Contained in the 1996 Omnibus Consolidated Rescissions and Appropriations ActRequirement in the Appropriations Act that the United States Information Agency relocate the Office of Cuba Broadcasting to south Florida by a date almost a month before the Act was signed into law constitutes a technical or typographical error and USIA is entitled to obligate the funds appropriated in the provision, even though it is unable to turn back the clock and comply with the provision's literal deadline.
1996-May-17Use of Federal Employees for Olympic SecurityWhere the teams and delegations visiting the United States for the Olympic Games in Atlanta have been designated . official guests. of the United States by the Secretary of State pursuant to §§ 112, 1116 and 1201 of the Criminal Code, those provisions authorize federal agencies to provide their employees to assist in security operations at the Atlanta Olympics upon request of the Attorney General.
1996-May-15Section 609 of the FY 1996 Omnibus Appropriations ActA provision of an appropriations law purporting to condition the use of funds to pay for the United States diplomatic representation to Vietnam on the Presidents making a particular detailed certification within 60 days does not require the cutoff of the covered funds until such time as the President has made the certification, but instead permits use of the funds to maintain diplomatic representation in Vietnam for 60 days after enactment. Taken as a whole, the provision impermissibly impairs the exercise of the core Presidential power to recognize, and maintain diplomatic relations with, a foreign government. Hence, the provision is constitutional and without legal force or effect.
1996-May-08Protective Assertion of Executive Privilege Regarding White House Counsel's Office DocumentsExecutive privilege may properly be asserted with respect to the entire set of White House Counsel's Office documents currently being withheld from the Committee on Government Reform and Oversight of the House of Representatives, pending a final Presidential decision on the matter. This would be a protective assertion of executive privilege designed to ensure the President's ability to make a final decision, after consultation with the Attorney General, as to which specific documents are deserving of a conclusive claim of executive privilege.
1996-May-08Placing of United States Armed Forces Under United Nations Operational or Tactical ControlProposed funding restriction generally prohibiting the President from placing United States Armed Forces under the operational or tactical control of the United Nations in U.N. peacekeeping operations would unconstitutionally constrain the President's exercise of his authority as Commander-in-Chief and unconstitutionally undermine the President's constitutional authority with respect to the conduct of diplomacy. Granting the President the authority to waive the prohibition if he provides a certification and report to Congress would not remove the funding restriction's constitutional defect, because Congress cannot burden or infringe the President's exercise of a core constitutional power by attaching conditions precedent to the exercise of that power.
1996-May-07The Constitutional Separation of Powers Between the President and Congress
This memorandum provides an overview of the constitutional issues that periodically arise concerning the relationship between the executive and legislative branches of the federal government. Although that relationship is shaped in part by the policy and political concerns of the President and Congress of the day, the political interaction between the President and Congress takes place within an enduring constitutional framework that confers powers and responsibilities on both elected branches.
In this memorandum we discuss the general principles underlying separation of powers analysis, and we address certain specific questions that have arisen in the past. Any set of examples is necessarily illustrative rather than exhaustive, however, and the Office of Legal Counsel is always available to assist in reviewing legislation or other congressional action for potential separation of powers issues.*
1996-April-17The Advisory Committee on International Economic PolicyThe Advisory Committee on International Economic Policy is not subject to the Emoluments Clause.
1996-March-07Eligibility of Citizens of Freely Associated States for HUD Financial AssistanceThe Secretary of Housing and Urban Development may not make financial assistance, including assistance under section 8 of the United States Housing Act of 1937, available for the benefit of citizens of the Freely Associated States (Federated States of Micronesia, Marshall Islands, Republic of Palau) who have entered the Territory of Guam and the Commonwealth of the Northern Mariana Islands as non-immigrants pursuant to section 141 of the Compact of Free Association.
1996-March-05Legal Authority to Approve Changes in Use of Property Under Section 414 of the Housing and Urban Development Act of 1969
The proposed sale of property at its fair market value in order to raise funds to build low and moderate income housing on different property constitutes a change in the use of property under section 414 of the Housing and Urban Development Act of 1969 and the terms of the deed of the 1974 sale of the property.
The Department of Housing and Urban Development and the General Services Administration could approve the proposed sale of property to a public body without violating section 414. 
1996-March-04Constitutionality of Citizenship Requirement for Participation in Small Business Administration's 8(a) ProgramThe Small Business Administration's regulation imposing a citizenship requirement for participation in its 8(a) program for disadvantaged contractors is constitutional.
1996-February-26Legality of Government Honoraria Ban Following U.S. v. National Treasury Employees UnionNo portion of § 501(b) of the Ethics in Government Act of 1978, which imposes an honoraria ban on all government employees, survives the Supreme Court's decision in United States v. National Treasury Employees Union.
1996-February-13Transactions Between the Federal Financing Bank and the Department of the TreasuryThis opinion reviews a possible Federal Financing Bank sale of loan assets to the Civil Service Retirement and Disability Fund and other possible related transactions between the FFB and the Department of the Treasury, and concludes that the contemplated transactions would be permissible under existing law.
1996-February-13Brady Act Implementation IssuesThe Attorney General may impose an expiration date on the validity of a check, conducted pursuant to the Brady Act by the national instant criminal background check system (“NICS”), that authorizes the transfer of a firearm Information from NICS may be disclosed to law enforcement agencies to further their criminal investigations, but disclosures may not be made for the purpose of establishing firearms registries and non_consensual disclosures may not be made for employment and licensing purposes. The Privacy Act places no restrictions on the Attorney General's express authority under the Brady Act to request information from federal agencies identifying individuals who fall within the categories of persons prohibited from possessing firearms
1996-February-12Alternatives for the Imposition of Condition on the Certification of Drug Transit and Producing CountriesThe President may impose certain conditions upon a drug producing or transit country seeking certification under section 490(b) of the Foreign Assistance Act of 1961. If he chooses to certify a country under section 490(b)(1)(B), he can withhold funds from the country to encourage compliance with a set of specified conditions. Alternatively, the President can determine not to certify a country in his annual certification report but inform the country that it might be recertified outside the annual cycle if it meets certain conditions. The first alternative offers greater flexibility to the President as, under the latter approach, the President is constrained in the exercise of his discretion by specific statutory requirements and his determination is subject to congressional review
1996-February-09Authority of the President to Restrict Munitions Imports Under the Arms Export Control ActRestricting the import of certain classes of Russian firearms and ammunition that are deemed an unacceptable risk to public safety is a legitimate use of the President's authority under the Arms Export Control Act to restrict the import of munitions in furtherance of United States foreign policy.
1996-February-05Assistance by State and Local Police in Apprehending Illegal Aliens
Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens for violating the criminal provisions of the Immigration and Naturalization Act.
State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws
State and local police may detain aliens reasonably suspected of a criminal violation of the immigration laws for periods of as long as 45 to 60 minutes when detentions of that length are necessary to allow for the arrival of Border Patrol agents who are needed for the informed federal disposition of the suspected violations
1996-January-26Immigration Emergency FundThe $20 million in the Immigration Emergency Fund for the reimbursement of states and localities for certain immigration-related assistance is available on an annual basis.
1996-January-23Whether the District of Columbia's Clean Air Compliance Fee May Be Collected From the Federal GovernmentThe District of Columbia's Clean Air Compliance Fee is a tax and may not be imposed on the federal government, because the D.C. Council lacks authority to impose taxes on the property of the United States.
1995
1995-December-18Application of 28 U.S.C. § 458 to Presidential Appointments of Federal JudgesSection 458 of title 28 does not apply to executive branche's ability to obligate appropriated funds conditional upon presidential appointments of judges to the federal judiciary.
1995-December-13Effect of Appropriations for Other Agencies and Branches on the Authority to Continue Department of Justice Functions During the Lapse in the Department's Appropriations
Where Congress has provided appropriations for the legislative branch, the Department of Justice may continue to provide testimony at hearings and perform other services related to funded functions of the legislative branch during a lapse in funding for the Department, if the participation of the Department is necessary for the hearing or other funded function to be effective.
Similarly, those functions of the Department of Justice that are necessary to the effective execution of functions by an agency or department of government that has current fiscal year appropriations, such that a suspension of the Department's functions during a lapse in its own appropriations would prevent or significantly damage the execution of those funded functions, may continue during the Department's funding lapse. 
1995-December-13Legislation Denying Citizenship at Birth to Certain Children Born in the United States
A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face.
A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation's constitutional history and constitutional traditions.
1995-November-30Proposed Deployment of United States Armed Forces Into BosniaThe President, acting without specific statutory authorization, may lawfully introduce United States ground troops into Bosnia in order to assist North Atlantic Treaty Organization to ensure compliance with a peace agreement. 
1995-November-16Participation in Congressional Hearings During an Appropriations LapseUnder the Antideficiency Act, an officer or employee of the Department of Justice may participate in a congressional hearing during a lapse in appropriations for the Department if he or she is a Senate-confirmed officer, if appropriated funds are available for his or her participation, if he or she is subpoenaed, or if there exists other express or necessarily implied authorization to participate in the hearing. 
1995-November-16Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991
The President is required to make a determination that would trigger sanctions under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 if he is presented with sufficient evidence to compel the determination.
The President may delay making a determination that would trigger sanctions under the Act when the delay is necessary to protect intelligence sources or methods used in counter-proliferation activities.
The President may delay making a determination that would trigger sanctions under the Act when no reasonable alternative means exists to protect the life of an intelligence source. 
1995-November-10The Secretary of the Treasury's Authority With Respect to the Civil Service Retirement and Disability Fund
5 U.S.C. § 8348 empowers the Secretary of the Treasury to suspend the investment of additional contributions to the Civil Service Retirement and Disability Fund and redeem prior to maturity CSRDF investment assets in order to avoid exceeding the statutory debt limit.
In exercising his CSRDF redemption authority, the Secretary of the Treasury may, during a “debt issuance suspension period,” redeem CSRDF investment assets based on the total amount of civil service retirement and disability benefits authorized to be paid during the period
The Secretary of the Treasury has discretion to designate the length of a debt issuance suspension period based on factors, identified by the Secretary, that are reasonably relevant to his determination.
The suspension during a debt limit crisis of CSRDF investment and the redemption of CSRDF investment assets would not cause a violation of the public debt limit. 
1995-November-08Authorization of Immigration Emergency Fund Reimbursements
The continuing resolution enacted on September 30, 1995, does not limit or suspend the authority that would otherwise exist for the obligation or expenditure of an Immigration Emergency Fund reimbursement pursuant to § 404(b) of the Immigration and Nationality Act.
The Immigration Emergency Fund may be used to reimburse the State of Florida for its increase in social service and health expenses deriving from the influx of Cuban immigrants resulting from a Presidential decision. 
1995-November-01Reassignment of Assistant Secretary of Labor Without Senate ReconfirmationWhere the Secretary of Labor exercises statutory power to reassign the duties of a lawfully confirmed Assistant Secretary of Labor whose duties are not otherwise assigned by statute, reconfirmation of the Assistant Secretary is not legally required. 
1995-October-30Constitutionality of Awarding Historic Preservation Grants to Religious PropertiesA court applying current precedent is most likely to conclude that the direct award of historic preservation grants to churches and other pervasivley sectarian institutions violates the Establishment Clause of the Constitution. 
1995-October-13The Food and Drug Administration's Discretion to Approve Methods of Detection and to Define the Term “No Residue” Pursuant to the Federal Food, Drug , and Cosmetic Act
The Food and Drug Administration has the discretionary authority under the DES proviso to the Delaney Clause of the Federal Food, Drug, and Cosmetic Act to prohibit the use of an additive in animal feed if the FDA concludes that there is no method that can “reliably measure and confirm” whether the additive contains residues of carcinogenic concern at or above the “no residue” level.
Where the FDA has already approved a method for detecting the presence of residues of carcinogenic concern, the DES proviso does not require the FDA to revise its regulations to adopt the “best available” such method.
The FDA lacks the discretion to determine that an edible tissue contains “no residue” when a method of detection reveals the presence of residues of carcinogenic concern that is below the “no significant risk” level. 
1995-October-10Scope of Treasury Department Purchase Rights With Respect to Financing Initiatives of the U.S. Postal Service
If the Treasury Department has declared its election to purchase a proposed U.S. Postal Service bond issue pursuant to 39 U.S.C. § 2006(a) prior to the proposed date of issuance and is pursuing good-faith negotiations towards such purchase as of such date, the USPS is not free to proceed with issuance of the bonds to other purchasers solely because Treasury has not completed purchase of the bonds within a 15-day period following USPS' initial notice of the proposed issue.
If, in the above circumstances, Treasury and the USPS are unable to negotiate mutually agreeable terms within a commercially reasonable period of time following USPS' proposed date for the issuance of its bonds, then the USPS may proceed with the issuance of such bonds to other purchasers.
Treasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded a reasonable opportunity to reach mutually agreeable terms with the USPS when the original terms proposed by the USPS are unacceptable. That reasonable opportunity is not rigidly limited by the 15-day period for declaring an election to purchase. 
1995-September-13Authority to Employ the Services of White House Office Employees During an Appropriations Lapse
The Antideficiency Act permits the White House Office to employ personnel during an appropriations lapse for functions that are excepted from the Act's general prohibition: functions relating to emergencies involving an imminent threat to the safety of human life or protection of property; other functions as to which express statutory authority to incur obligations in advance of appropriations has been granted; those functions for which such authority arises by necessary implication; and certain functions necessary to the discharge of the President's constitutional duties and powers. Such personnel may not be paid, however, until appropriations are enacted.
The President may use his authority under 3 U.S.C. § 105 to create and fill nonsalaried positions in the White House Office during an appropriations lapse, but nonsalaried employees cannot receive an obligation of payment for the services they perform in that capacity.
White House Office employees appointed under 3 U.S.C. § 105 may waive their compensation, and if they do so, their services may be accepted during an appropriations lapse.. 
1995-September-07Constitutional Limitations on Federal Government Participation in Binding Arbitration
The Appointments Clause does not prohibit the federal government from submitting to binding arbitration.
Nor does any other constitutional provision or doctrine impose a general prohibition against the federal government entering into binding arbitration, although the Constitution does impose substantial limits on the authority of the federal government to enter into binding arbitration in specific cases
1995-August-16Government Operations in the Event of a Lapse in AppropriationsA government agency may employ personal services in advance of appropriations only when there is a reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property, and when there is some reasonable likelihood that either or both would be compromised in some significant degree by the delay in the performance of the function in question.
1995-June-28Legal Guidance on the Implications of the Supreme Court's Decision in Adarand Constructors, Inc. v. PeñaThis memorandum sets forth preliminary legal guidance on the implications of the Supreme Court's decision in Adarand Constructors, Inc. v. Peña, which held that “strict scrutiny” is the standard that governs judicial review of the constitutionality of federal affirmative action programs that use racial and ethnic criteria as a basis for decision-making The memorandum is not intended to serve as a definitive statement of what Adarand means for any particular affirmative action program; rather, it is intended to provide a general overview of the Court's decision and the application of the strict scrutiny standard in the context of affirmative action.
1995-June-19Effects of a Presidential Pardon
A full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien under 8 U.S.C. § 1251(a)(2)
A full and unconditional presidential pardon removes a state firearm disability arising as a result of a conviction of a federal crime.
A full and unconditional presidential pardon extends to the remission of restitution ordered by a court pursuant to 18 U.S.C. § 355-1(b)-(c) as a “sanction” authorized in addition to imprisonment, probation, or a fine until such times as the restitution award is paid to the victim. 
1995-June-07Waiver of Claims for Damages Arising Out of Cooperative Space Activity
Congress has not authorized the National Aeronautics and Space Administration to waive subrogated claims on behalf of federal agencies against certain foreign States for damages arising out of cooperative space activity.
An amendment to the Space Act would be necessary to grant NASA the authority to waive subrogated claims on behalf of federal agencies against foreign States for damages arising out of cooperative space activity
The President may waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government. The President may delegate this authority to an agency head.
The weight of authority supports the President's power to waive state claims against a foreign government. 
1995-May-22Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund31 U.S.C. § 1321 and its accompanying Department of Justice regulations do not impose a fiduciary obligation on the Bureau of Prisons to expend Commissary Fund moneys only in accordance with the terms of the Commissary Fund trust.
1995-May-16Bill to Relocate United States Embassy From Tel Aviv to JerusalemThe provisions of a bill that render the executive branch's ability to obligate appropriated funds conditional upon the construction and opening in Jerusalem of the United States Embassy to Israel invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional.
1995-May-12Authority of the Secretary of the Treasury to Order the Closing of Certain Streets Located Along the Perimeter of the White House18 U.S.C. § 3056 grants the Secretary of the Treasury broad authority to take actions that are necessary and proper to protect the President, including the authority to order the closing of certain streets located along the perimeter of the White House.
1995-May-05Whether 18 U.S.C.§ 603 Bars Civilian Executive Branch Employees and Officers From Making Contributions to a President's Authorized Re-Election Campaign CommitteeCivilian employees and officers in the executive branch would not violate 18 U.S.C. § 603, as amended by the Hatch Act Reform Amendments of 1993, by making contributions to a President's authorized reelection campaign committee, so long as such contributions were not made in a manner that would violate the specific prohibitions of 5 U.S.C. §§ 7324(a)(1)-(4). 
1995-April-10Impermissibility of Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal
Appointment of the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlapping of congressional and executive accountability that is incompatible with separation of powers requirements.
Appointment of the House Sergeant at Arms as a Special Deputy U.S. Marshal would impermissibly involve the institution of Congress in executive branch law enforcement.
1995-March-09Executive Order No. 12954, Entitled “Ensuring the Economical and Efficient Administration and Completion of Federal Government Contracts”The Federal Property and Administrative Services Act vests the President with authority to issue Executive Order No. 12954 in light of his finding that it will promote economy and efficiency in government procurement.
1995-March-02

Use of the Exchange Stabilization Fund to Provide Loans and Credits to Mexico


(Posted 2014-February-27)

As part of an international financial support package for Mexico, the President and the Treasury Secretary have the authority under section 10(a) of the Gold Reserve Act of 1934 to use the Treasury Department’s Exchange Stabilization Fund to provide loans and credits to Mexico in the form of (i) short-term currency “swaps” through which Mexico will borrow U.S. dollars in exchange for Mexican pesos for ninety days; (ii) medium-term currency swaps through which Mexico will borrow U.S. dollars for up to five years; and (iii) guaranties through which the United States will backup Mexico’s obligations on government securities for up to ten years.

1995-February-22Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees
Federal employees who would offer the use of, or administer, the federal salary-allocation system for allotments to political action committees, would not, without more, violate 18 U.S.C. §§ 602 and 607, or the civil provisions of the Hatch Act Reform Amendments of 1993.
The Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post, from using the salary-allocation system to make contributions to political action committees.
The Hatch Act Reform Amendments of 1993 would not prohibit the remainder of federal employees covered by those Amendments from making contributions to political action committees through the salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly prohibit such employees from taking steps to use the salary-allocation system to make such contributions while they are on duty or in a federal building.
While use of the salary-allocation system for contributions to political action committees would be lawful under certain circumstances, the head of each federal agency has the discretion to decide whether to make the system available for that purpose to employees of the agency. 
1995-February-21Authority of FBI Agents, Serving as Special Deputy United States Marshals, to Pursue Non-Federal FugitivesRegardless of whether federal process is outstanding or anticipated, agents of the Federal Bureau of Investigation have authority to investigate fugitive felons when there is a reasonable basis to believe that doing so will detect or prevent the commission of a federal crime. U.S. Marshals, including FBI agents serving as Special Deputy U.S. Marshals, have authority under 28 U.S.C. § 566(e)(1)(B) to investigate and pursue fugitives wanted under state felony warrants whenever such action is undertaken pursuant to a special apprehension program approved by the Attorney General. Where a U.S. Marshal or Special Deputy U.S. Marshal is engaged in an approved investigation of state law fugitives under section 566(e)(1)(B), the marshal's derivative state sheriff powers under 28 U.S.C. § 564 and the marshal's inherent authority to take enforcement actions necessary to carry out his federal duties provide bases for the marshal to arrest such fugitives. Neither the doctrine of legislative ratification nor the U.S. Marshals Service's inherent or “federal common law” authority provide independent, non-statutory legal authority for marshals to pursue or arrest fugitives sought for state law violations only. In circumstances where there is good reason to believe that the pursuit or arrest will prevent the commission of a federal felony, marshals do have limited inherent authority to take the necessary preventive measures. 
1995-January-26Internal Revenue Service Notices of Levy on Undelivered Commerce Department Fishing Quota PermitsInternal Revenue Service notices of levy may lawfully be applied to the undelivered quota shares or individual fishing quotas to be issued by the Department of Commerce to taxpayers who have otherwise qualified for them. 
1995-January-23The Balanced Budget Amendment
The lack of any enforcement mechanism in current proposals to amend the Constitution to require a balanced budget could result in the transfer of power over fundamental political questions of taxing and spending to the courts. This would represent a substantial reordering of our basic constitutional structure.
Before resorting to the drastic step of amending the Constitution, Congress should explore other reasonable alternatives, including line item veto legislation. 
1995-January-20Relationship Between Department of Justice Attorneys and Persons on Whose Behalf the United States Brings Suits Under the Fair Housing ActWhen the Department of Justice undertakes a civil action on behalf of a complainant alleging a discriminatory housing practice under the Fair Housing Act, Department attorneys handling the action do not enter into an attorney-client relationship with the complainant, nor do they undertake a fiduciary obligation to the complainant. Because no attorney-client relationship is established in such undertakings, no retainer agreement between the complainant and the Department attorneys should be entered into. 
1994
1994-December-15Authority of the Federal Financial Supervisory Agencies Under the Community Reinvestment ActThe federal financial supervisory agencies lack authority under the Community Reinvestment Act of 1977 to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to administrative enforcement actions under 12 U.S.C. § 1818.
1994-November-22Whether Uruguay Round Agreements Required Ratification as a TreatyThe Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade did not require ratification by the Senate as a treaty, but could constitutionally be executed by the President and approved and implemented by Act of Congress.
1994-November-07Application of 18 U.S.C. § 205 to Communications Between the National Association of Assistant United States Attorneys and the Department of Justice
The restrictions of 18 U.S.C. § 205 preclude current federal employees from representing the National Association of Assistant United States Attorneys (“NAAUSA”) before the Department of Justice regarding compensation, workplace issues, and other issues that focus on the interests of Assistant United States Attorneys (“AUSAs”) or another discrete and identifiable class of persons or entities.
Section 205 does not preclude several other kinds of communications between the Department and NAAUSA or similar associations. The Department is not precluded from dealing with individual AUSAs or groups of AUSAs in their official capacities on matters affecting AUSAs, even if those AUSAs are coincidentally members of NAAUSA. Nor does section 205 place any restrictions on representatives who are not current federal employees, such as NAAUSA's executive director or former AUSAs no longer employed by the government. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute. 
1994-November-07Congressional Testimony of an Assistant United States Attorney on Behalf of the National Association of Assistant United States Attorneys
The Department of Justice correctly takes the position that it may not prohibit an Assistant United States Attorney (“AUSA”) from testifying before Congress in his or her personal capacity on behalf of the National Association of Assistant United States Attorneys.
The Department of Justice rules regulating such testimony are consistent with the First Amendment. Those rules require that the AUSA make it clear that he or she is not speaking for the Department, avoid using or permitting the use of his or her official title or position in connection with the testimony (except as one of several biographical details), and comply with rules on the protection of confidential information. 
1994-November-01Presidential Authority to Decline to Execute Unconstitutional StatutesThis memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.
1994-October-07Availability of Money Damages Under the Religious Freedom Restoration ActSection 3(c) of the Religious Freedom Restoration Act, which makes available “appropriate relief” in judicial proceedings against federal and state government entities, does not waive or abrogate the sovereign immunity of federal and state governments against the award of money damages. 
1994-October-07The Twenty-Second Decennial CensusNeither the Enumeration Clause of the Constitution nor the Census Act precludes the Bureau of the Census from statistically adjusting “headcounts” in the decennial census for the year 2000 or conducting the non-response follow-up on a sample basis. The provision in the Census Act prohibiting sampling for purposes of apportionment of the House of Representatives does not preclude reliance upon statistical adjustments that would improve the accuracy of “headcount” data. 
1994-September-27Deployment of United States Armed Forces Into Haiti
The President possessed the legal authority to deploy United States Armed Forces into Haiti.
The planned deployment accorded with the sense of Congress, satisfied the requirements of the War Powers Resolution, and was not a “war” with the meaning of the Constitution.
1994-July-28Mutual Consent Provisions in the Guam Commonwealth LegislationSections of the Guam Commonwealth Bill requiring the mutual consent of the Government of the United States and the Government of Guam raise serious constitutional questions and are legally unenforceable.
1994-July-15Constitutionality of Legislation Extending the Terms of Office of United States Parole CommissionersBecause United States Parole Commissioners may be removed by the President at will, legislation extending the terms of office of certain Parole Commissioners does not violate the Appointments Clause.
1994-July-14United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug TraffickingThe Aircraft Sabotage Act of 1984 applies to the police and military personnel of foreign governments. In particular, the Act applies to the use of deadly force by such foreign governmental actors against civil aircraft in flight that are suspected of transporting illegal drugs. There is accordingly a substantial risk that United States Government officers and employees who provide flight tracking information or certain other forms of assistance to the aerial interdiction programs of foreign governments that have destroyed such aircraft, or that have announced an intent to do so, would be aiding and abetting conduct that violated the Act.
1994-July-08Review of 1988 Opinion Concerning the Applicability of Section 504 of the Rehabilitation Act to Individuals Infected With HIVThe 1988 Office of Legal Counsel opinion accurately describes the duties imposed by section 504 of the Rehabilitation Act with respect to individuals infected with the Human Immunodeficiency Virus. The subsequent passage of the Americans with Disabilities Act did not alter the analysis of cases arising under the Rehabilitation Act, although an amendment to section 504 now requires reference to standards set forth in the ADA. Application of the standards set forth under section 504 in any particular case requires consideration of current scientific understanding of HIV infection. Advances in the scientific understanding of HIV infection since 1988 may undermine some of the discussion in the 1988 opinion about the application of these standards to individual cases. 
1994-June-22Applicability of 18 U.S.C. § 208 to Proposed Appointment of Government Official to the Board of Connie LeeAn executive branch officer or employee appointed to the Board of Directors of Connie Lee would be a “director” within the meaning of 18 U.S.C. § 208(a) and therefore would be disqualified from participating “personnally and substantially” in any “particular matter” implicating the financial interests of Connie Lee unless the conditions of subsection 208(b) are satisfied.
1994-May-31Pre-Judgment Interest Under the Back Pay Act for Refunds of Federal Insurance Contributions Act OverpaymentsThe Back Pay Act's authorization of prejudgment interest does not apply to the return of a Federal Insurance Contributions Act tax overpayment. Even if the Back Pay Act did apply to such returns, an agency's specific exemption from liability under FICA would override the provisions of the Back Pay Act.
1994-May-25Deputization of Members of Congress as Special Deputy U.s. MarshalsThe deputization of members of Congress as special Deputy U.S. Marshals is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.
1994-May-23Reconsideration of Applicability of the Davis-Bacon Act to the Veteran Administration's Lease of Medical FacilitiesContrary to the view expressed in an earlier Opinion of the Office of Legal Counsel, the plain language of the Davis-Bacon Act does not bar its application to a lease contract on the ground that such contracts are per se not contracts for construction. The applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the details of the particular contract.
1994-May-17Authority of Department of Housing and Urban Development to Initiate Enforcement Actions Under the Fair Housing Act Against Other Executive Branch Agencies
Because substantial separation of powers concerns would be raised by construing the Fair Housing Act (“the Act”) to authorize the Department of Housing and Urban Development (“HUD”) to initiate enforcement proceedings against other executive branch agencies, the Act cannot be so construed unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, it does not grant HUD this authority.
There is no basis for construing the Act so that the HUD investigative and administrative process under the Act may be deemed applicable, but the judicial enforcement procedures deemed inapplicable. 
1994-May-10Eligibility of Involuntary Wartime Relocatees to Japan for Redress Under the Civil Liberties Act of 1988The proposed Department of Justice change in its interpretation of the Civil Liberties Act of 1988 to extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involuntary is a reasonable and permissible interpretation of the statute. Although an agency interpretation that has been modified or reversed is likely to receive less deference by a reviewing court than a consistent and contemporaneous interpretation, the fact of modification does not preclude the court from granting deference to the new interpretation
1994-April-19MARAD Rulemaking Authority Under Cargo Preference LawsThe U.S. Maritime Administration has the authority to promulgate rules establishing mandatory uniform charter terms for the carriage of cargoes subject to the Cargo Preference Act of 1954.
1994-April-19Equitable Transfers of Forfeited Monies or Property
When the federal government makes an equitable transfer of forfeited monies or property to a state or local law enforcement agency, that transfer is more appropriately characterized as a conditional gift to the agency rather than as a formal contract between the federal government and the agency.
If the state or local agency fails to use the transferred property for law enforcement purposes, the federal government may be able to pursue restitution of the property.
1994-April-18Authority of USDA to Award Monetary Relief for Discrimination
The Department of Agriculture has authority to award monetary relief, attorneys' fees, and costs to a person who has been discriminated against in a program conducted by USDA if a court could award such relief in an action by the aggrieved person. That question is controlled by whether the anti-discrimination provisions of the applicable civil rights statute apply to federal agencies, and if so, whether the statute waives the sovereign immunity of the United States against imposition of such relief.
The anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 do not apply to federal agencies. Some anti-discrimination provisions in each of the other civil rights statutes addressed in the opinion do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys' fees and costs may be awarded pursuant to the waiver of immunity contained in the Equal Access to Justice Act. 
1994-April-15Sixth Amendment Implications of Law Enforcement Contact With Corporate Executives
Law enforcement contacts with high-ranking executives of a corporation after criminal charges have been filed against the corporation violate the corporation's Sixth Amendment right to counsel.
No Sixth Amendment violation occurs when law enforcement contacts with high-ranking executives occur while civil penalty proceedings are in progress against the corporation. 
1994-April-05Whether Members of the Sentencing Commission Who Were Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute
Statutory provisions that allow members of the United States Sentencing Commission to hold over in office after their terms have expired apply to incumbent members who were appointed prior to the enactment of the holdover statute.
Commissioners who were appointed prior to the enactment of the holdover statute may constitutionally exercise such holdover rights without violating the Appointments Clause.
1994-March-15Application of the Brady Act's Criminal Penalties to State or Local Law Enforcement OfficersThe criminal penalties contained in the Brady Handgun Violence Protection Act do not apply to state or local law enforcement officers in the performance of their duties under the Brady Act. Accordingly, the United States lacks the authority to prosecute state or local officials for violations of the Brady Act.
1994-March-08OCC Mortgage Lending Testing ProgramIndividuals who serve as “testers” in a proposed Office of the Comptroller of the Currency program designed to identify discriminatory lending practices by national banks would not violate any federal criminal laws if, as part of the program, they provide false information to targeted banks.
1994-March-01Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public UniversitiesThe Emoluments Clause does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign State when making faculty employment decisions.
1994-February-14Whether the Office of the Vice President Is an “Agency” for Purposes of the Freedom of Information ActThe Office of the Vice President is not an “agency” for purposes of the Freedom of Information Act. 
1994-February-10Denial of Public Access to Trial Exhibits in Child Pornography ProsecutionsCourts may deny public access to exhibits entered into evidence in child pornography prosecutions.
1994-February-02Responsibility for Issuing Revised Hatch Act RegulationsThe Office of Personnel Management, rather than the Office of Special Counsel, has the authority to promulgate regulations delimiting the scope and nature of permissible activities under the Hatch Act Reform Amendments of 1993. 
1993
1993-December-23

Reconsideration of Prior Opinion Concerning Land-Grant Colleges

After reconsideration of a prior opinion, we adhere to the conclusion that the State of West Virginia may validly designate West Virginia State College as the beneficiary of appropriated funds under the Second Morrill Act of 1890.

Reversing our prior conclusion, we find that the State’s designation of the College as a Second Morrill Act beneficiary does not make that institution eligible for funds appropriated under certain statutes administered by the Department of Agriculture.

1993-December-22

Admissibility of Alien Amnesty Application Information in Prosecutions of Third Parties

The confidentiality provisions of the Immigration Reform and Control Act of 1986 generally bar federal prosecutors from introducing information from alien amnesty applications as evidence in criminal prosecutions of third parties, but the use of such information is not barred in prosecutions of third parties for crimes that facilitate, or are closely related to, the filing of a false amnesty application.

Justice Department use of amnesty application information is also subject to regulations issued by the Immigration and Naturalization Service. Those regulations limit such use against third parties to the prosecution of persons who have “created or supplied a false writing or document for use” in an amnesty application.

1993-December-20

Clarification of Prior Opinion Regarding Borrowing by Bank Examiners

18 U.S.C. § 213, which prohibits federal bank examiners from borrowing from Federal Reserve member banks or other entities subject to examination by them, does not prohibit such examiners from receiving loans or credit from affiliates of covered banks merely because such affiliates are under “common control” with the bank or because the covered bank and the affiliate have a common majority of corporate officers or directors.

An examiner would be prohibited from borrowing from such an affiliated entity, where the affiliate is serving as a conduit or “front” for the implementation of a loan that is actually extended due to the direction, instigation, or influence of the affiliated member bank or person connected therewith.

1993-December-09Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management CouncilsThe appointed members of Regional Fishery Management Councils established under the Magnuson Fishery Conservation and Management Act and other personnel of those Councils are not Executive Branch employees for purposes of Executive Order No. 12674 and its implementing regulations, and thus are not subject to that Order. 
1993-December-09Authority to Pay State and Local Taxes on Property After Entry of an Order of Forfeiture
The Attorney General has discretionary authority to make payments of state and local tax claims against civilly forfeited property after a forfeiture order has issued, based on her equitable discretion to administer civilly forfeited property, under 21 U.S.C. § 881(b)-(e) and 28 U.S.C. § 524(c)(1).
The Attorney General has discretion to pay state and local tax claims against criminally forfeited property, under the authority in those statutes to “take any other action to protect the rights of innocent persons which is in the interests of justice.” 
1993-December-06Constitutionality of Vesting Magistrate Judges With Jurisdiction Over Asset Forfeiture CasesA statute vesting jurisdiction over asset forfeiture cases in magistrate judges would violate Article III of the Constitution.
1993-November-10Whether Missouri Municipalities May Tax the Portion of Federal Salaries Voluntarily Contributed to the Thrift Savings PlanIntergovernmental tax immunity does not preclude municipalities in Missouri from levying an earnings tax on the voluntary contributions of federal employees to the Thrift Savings Plan. 
1993-November-02The Legal Significance of Presidential Signing StatementsMany Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create “legislative history” remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.
1993-October-29Constitutionality of Health Care Reform
The proposed Health Security Act is well within the authority of the Congress under the Commerce Clause, and it does not violate Tenth Amendment or other principles of federalism.
The proposal contains no unconstitutional takings of private property or infringement of liberty interests.
The proposed delegation of administrative authority to the National Health Board, and, from it, to state alliances, is not an impermissible delegation of legislative authority. 
1993-October-28Applicability of the Emoluments Clause to Non-Government Members of ACUS
Non-government members of the Administrative Conference of the United States (ACUS) are prohibited by the Emoluments Clause from accepting, absent Congress's consent, a distribution from their partnerships that includes some proportionate share of the revenues generated from the partnership's foreign government clients.
Non-government members of ACUS are also generally forbidden, absent Congress's consent, from accepting payments from commercial entities owned or controlled by foreign governments. 
1993-October-18Liability of the United States for State and Local Taxes on Seized and Forfeited Property
In civil forfeiture proceedings (under 21 U.S.C. § 881), the United States is obligated to pay liens for state and local taxes accruing after the commission of the offense leading to forfeiture and before the entry of a judicial order of forfeiture, if the lien-holder establishes, before the court enters the order of forfeiture, that it is an innocent owner of the interest it asserts.
In criminal forfeiture proceedings (under 18 U.S.C. § 1963 or 21 U.S.C. § 853), the United States may not pay such liens because state and local tax lien-holders are not bona fide purchasers for value of the interests they would assert, and therefore do not come within any applicable exception to a statute that, upon entry of a court's final order of forfeiture, vests full ownership retroactively in the United States as of the date of the offense.
1993-October-13Immigration Consequences of Undocumented Aliens' Arrival in United States Territorial Waters
Undocumented aliens interdicted within the twelve-mile zone that comprises the United States territorial sea are not entitled to a hearing under the exclusion provisions of the Immigration and Nationality Act (INA).
The Immigration and Naturalization Service had the authority to promulgate an interpretative rule construing the “territorial waters” of the United States, as referred to in section 287 of the INA, to extend for twelve nautical miles.
1993-September-23Reimbursement for Costs of Attending Certain BanquetsEmployees in the United States Attorneys' offices may properly be reimbursed for the costs of attending retirement banquets for state law enforcement officials under appropriate circumstances. However, reimbursement for attendance at such functions should be limited to circumstances where the nature of the ceremonial event in question provides good reason to believe that the employee's attendance advances the authorized functions or programs of the office.
1993-September-23Suspension of a United States Marshal
With the prior approval of the President, the Attorney General may suspend a United States Marshal without pay.
During the period of a United States Marshal's suspension, the Attorney General may designate an Acting United States Marshal to carry out the duties of the office.
1993-September-21Disclosure of Grand Jury Matters to the President and Other Officials
The Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure to the President and members of the National Security Council where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Although under those circumstances such disclosure may be made without prior judicial approval, the names of those receiving the grand jury material must be submitted to the court that impaneled the grand jury in question.
There are also circumstances where the President's constitutional responsibilities may provide justification for the Attorney General to disclose grand jury matters to the President independent of the provisions of Rule 6(e). Such circumstances might arise, for example, where the Attorney General learns through grand jury proceedings of a grave threat of terrorism, implicating the President's responsibility to take care that the laws be faithfully executed.
1993-September-13Ethics Issues Related to the Federal Technology Transfer Act of 1986
A government employee-inventor who assigns his rights in an invention to the United States and accepts the government's payment of amounts tied to the resulting royalties, as provided in the Federal Technology Transfer Act of 1986, 15 U.S.C. §§ 1501-1534, may continue to work on the invention without violating the statute against taking part in matters in which he has a financial interest, 18 U.S.C. § 208, or the statute forbidding supplementation of federal salaries, 18 U.S.C. § 209.
Under 18 U.S.C. § 208, a government employee-inventor may not take official action with respect to an agreement for development of his invention entered into by the United States and a company with which the employee has contracted to exploit the invention abroad.
1993-September-13General Services Administration Printing OperationsThe Joint Committee on Printing lacks the authority to alter the General Services Administration's printing operations, because the only basis for that authority is an invalid legislative veto provision contained in 44 U.S.C. 501. Section 207 of Public Law 102-392 requires executive branch entities (other than the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency) to procure printing related to the publication of government publications by or through the Government Printing Office.
1993-August-27Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice Represents a PartySection 207(c) of title 18 forbids a former senior employee of the Department of Justice, for one year after his or her service ends, from signing a brief or making an oral argument in a case where the Department represents one of the parties.
1993-August-23Construction of § 406 of the Federal Employees Pay Comparability Act of 1990Section 406 of the Federal Employees Pay Comparability Act of 1990 does not extend the authority to make bonus payments to employees at the New York Field Division of the Federal Bureau of Investigation pursuant to section 601 of the Intelligence Authorization Act for fiscal years 1989 and 1990 beyond the expiration date of the demonstration project established by section 601.
1993-June-22Applicability of the Civil Service Provisions of Title 5 of the United States Code to the United States Enrichment CorporationThe United States Enrichment Corporation is exempt from the civil service provisions of title 5 of the United States Code.
1993-January-19Authority of the Attorney General to Make Successive Designations of Interim United States Marshals
Under 28 U.S.C. § 562, the Attorney General may make two or more successive designations of a person to serve as interim United States marshal in a judicial district where the marshal's office is vacant.
After the expiration of an initial designation of a United States marshal under 28 U.S.C. § 562, the Attorney General may authorize a person to act as marshal under 28 U.S.C. §§ 509, 510. 
1993-January-19Authority to Grant Conservation Easements Under 40 U.S.C. § 319Federal agencies do not have authority to grant conservation easements in federal property under 40 U.S.C. § 319.
1993-January-19Authority of the Secretary of the Treasury Regarding Postal Service Bond Offering
If the Secretary of the Treasury, within the fifteen-day period following notice by the United States Postal Service of a proposed bond issue, declares his election to purchase the bonds under 39 U.S.C. § 2006(a), the Postal Service may not sell the bonds on the open market, but must instead negotiate in good faith with the Secretary to reach agreement on the terms and conditions of a sale to the Secretary.
Transfer of the proceeds of any bond offering by the Postal Service to a trustee for the purpose of having the trustee make payments on outstanding Postal Service debt would be a deposit of Postal Service monies within the meaning of 39 U.S.C. § 2003(d) and, accordingly, could only be done with the approval of the Secretary of Treasury. 
1992
1992-December-04Authority to Use United States Military Forces in SomaliaThe President, in his constitutional role as Commander in Chief and Chief Executive, might reasonably and lawfully determine that it was justified to use United States Armed Forces personnel to protect those engaged in relief work in Somalia. His authority extended to using U.S. military personnel to protect Somalians and other foreign nationals in Somalia.
1992-September-21

Immigration and Naturalization Service Participation in Computer Matching Program With the Department of Education

The Immigration and Naturalization Service has legal authority to participate in a computer matching program with the Department in order to verify the immigration status of alien applicants for federal student aid under Title IV of the Higher Education Act of 1965

1992-September-01

Legal Authority of the Department of the Treasury to Issue Regulations Indexing Capital Gains for Inflation

The Department of the Treasury does not have legal authority to index capital gains for inflation by means of regulation.

1992-August-20Whether a State May Elect Its United States Senators From Single-Member Districts Rather Than At-LargeUnder the Seventeenth Amendment to the Constitution, a State may not constitutionally elect its United States Senators from two single-member districts rather than at large.
1992-August-17Enforcement Jurisdiction of the Special Counsel for Immigration Related Unfair Employment PracticesFederal agencies are not included in the phrase “person or other entity” in the antidiscrimination provision of the Immigration Reform and Contol Act, 8 U.S.C. § 1324b(a)(1). Accordingly, the Special Counsel for Immigration Related Unfair Employment Practices is without authority to bring discrimination charges against federal agencies.
1992-July-01Proposed Federal Abortion Legislation
The proposed legislation would enact a federal statutory regime of abortion regulation that leaves the States with substantially less regulatory authority than they have under Roe v.Wade or Planned Parenthood v. Casey.
The proposed legislation would represent a doubtful exercise of Congres's power to enforce the Fourteenth Amendment and would rest on a questionable link to Congres's power to regulate interstate commerce. 
1992-June-03Marketing Loans for Grains and Wheat
The formulas in the Food, Agriculture, Conservation, and Trade Act of 1990, under which farmers repay loans from the Department of Agriculture, contain a scrivener's error in the organization of the subsections, and the provisions should be read as if the error, which arose in the process of enrollment, had not been made.
Under section 1302 of the Omnibus Budget Reconciliation Act of 1990, marketing loan provisions that previously had been discretionary would be mandatory for the 1993 through 1995 crop years, if an agricultural trade agreement under the Uruguay Round Negotiations pursuant to the General Agreement on Tariffs and Trade were not entered into by June 30, 1992, or if this agreement had not entered into force for the United States by June 30, 1993.
1992-May-13Congressional Pay Amendment
The Congressional Pay Amendment, which was originally proposed by Congress to the States for ratification in 1789, and having been ratified by three-fourths of the States, has been ratified pursuant to Article V and is accordingly now part of the Constitution.
Under 1 U.S.C. § 106b, the Archivist was, upon receipt of formal instruments of ratification from the requisite number of States, required to publish the Congressional Pay Amendment along with his certificate specifying that the Amendment has become valid, to all intents and purposes, as part of the Constitution.
1992-May-12Funding for the Critical Technologies InstituteThe Department of Defense may make funds available to the National Science Foundation out of monies appropriated in the Department of Defense Appropriations Act, 1991, to support the activities of the Critical Technologies Institute during the 1992 fiscal year.
1992-March-24Statutory Authority to Contract With Private Sector for Secure FacilitiesThe Federal Bureau of Prisons has statutory authority to contract with the private sector for secure facilities. 
1992-March-12

Application for 18 U.S.C. § 205 to Proposed “Master Amici”

18 U.S.C. § 205 precludes attorneys in the executive branch from serving as “master amici” in the Court of Veterans Appeals.

1992-March-04

Fourth Amendment Implications of Military Use of Forward Looking Infrared Radars Technology for Civilian Law Enforcement


(Posted 2014-February-27)

Forward Looking Infrared Radars (FLIR) reconnaissance of structures on private lands does not constitute a search within the meaning of the Fourth Amendment.

Department of Defense personnel engaged in such surveillance would not be subject to liability for damages in a constitutional tort action.

1992-January-23

Transfers of Forfeited Property to State and Local Law Enforcement Agencies


(Posted 2014-February-27)

Section 981(e)(2) of title 18 does not prevent a state or local law enforcement agency from retransferring to other state or local government agencies property that has been transferred from the federal government pursuant to that section. However, the Attorney General has authority under section 981(e) to prevent such a further transfer by imposing a contrary term of condition on the initial transfer from the federal government.

Section 881(e) of title 21 does not prevent a state or local law enforcement agency from retransferring to other state or local government agencies property that has been transferred from the federal government pursuant to that section. However, the Attorney General has authority under section 881(e) to forbid a further transfer if he determines that to do so would “serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies.”

1992-January-17Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports
Section 129(e) of Pub.L. No.102-138 and section 503 of Pub.L.No. 102-140 are unconstitutional to the extent that they purport to limit the President's ability to issue more than one official or diplomatic passport to United States government personnel. The single-passport requirements set forth in section 129(e) and section 503 are severable from the remainder of the statutes in which they appear.
The President is constitutionally authorized to decline to enforce the portions of section 129(e) and section 503 that purport to limit the issuance of official and diplomatic passports.
1992-January-14Recess Appointments During an Intrasession RecessThe President may make interim recess appointments during an intrasession recess of eighteen days.
1978
1978-December-29

Post-Employment Restrictions on Former Geologist at Nuclear Regulatory Commission


(Posted 2014-March-12)

Former Officers and Employees—Conflict of Interest (18 U.S.C. § 207)—Contract—Disqualification Connected With Former Duties or Official Responsibilities

1978-December-21

Appointment of Former or Sitting Members of Congress to Civil Offices Created by Congress at the Time Such Persons Were Congressmen


(Posted 2014-March-12)

Judges—Members of Congress—Constitutional Restriction on Appointment (Article I, § 6, cl. 2)—Omnibus Judgeship Bill (28 U.S.C. § 133, as amended)

1978-December-20

Use of Funds for Food Stamp Workfare Projects


(Posted 2014-March-12)

Comprehensive Employment and Training Act (29 U.S.C. § 812)—Food Stamp Act of 1977 (7 U.S.C. § 2026(b)(2)—Use of Funds for Food Stamp Workfare Projects

1978-December-18

Application of State Law to CIA’s Proposed Administration of Polygraph Examinations to Its Contractors’ Employees (II)


(Posted 2014-March-12)

Supremacy Clause (Art. VI, cl. 2)—Central Intelligence Agency—Polygraph Examinations of Employee of CIA Contracts

1978-December-18

Acceptance of Funds by the Department of Justice From Other Agencies to Employ Attorneys in Land Acquisition Cases


(Posted 2014-March-12)

Department of Justice—Transfer of Funds From Another Agency—Payment for Attorney Services—Economy Act (31 U.S.C. § 686)

1978-December-18

Visa Revocation and Dual Citizenship Issues in the Cuban Parole Program


(Posted 2014-March-12)

Immigration and Nationality Act § 1182(d)(5))—Cuban Parole Act Program

1978-December-18

Application of State Law to CIA’s Proposed Administration of Polygraph Examinations of Its Contractors’ Employees


(Posted 2014-March-12)

Central Intelligence Agency—Supremacy Clause (Constitution, Article VI, Clause 2)—Possible State-Federal Law Conflict Involving Classified Information—CIA’s Proposed Administration of Polygraph Examinations of Its Contractors’ Employees

1978-December-15

Use of Mail Covers in FBI Investigations Under the Foreign Intelligence and Foreign Counter-Intelligence Guidelines


(Posted 2014-March-12)

National Security Mail Covers—Constitutional Challenge—Federal Bureau of Investigation (39 CFR 233.2(d)(2)(H))

1978-December-06

Disposition of Items Carried by Astronauts on Space Flights


(Posted 2014-March-12)

National Aeronautics and Space Agency—Disposition of Items Carried by Astronauts on Space Flights

1978-December-06

Legality of Funding the Wider Opportunities for Women Program in the Metropolitan Washington Area


(Posted 2014-March-12)

Comprehensive Employment and Training Act (42 U.S.C. §§ 6701–6710)—Wider Opportunities for Women (WOW)—Program Funding in the Metropolitan Washington Area

1978-November-29

Legal Permissibility of Employer Providing Certain Benefits to Employee Serving as a White House Fellow


(Posted 2014-March-12)

Supplementation of Salary of Government Empoyees (18 U.S.C. § 209)—Propriety of Employer Providing Certain Benefits to Employee Serving as a White House Fellow

1978-November-24

Proposal to Supplement the Salary Paid to Arbitrators Who Are Members of Boards of Inquiry Appointed under 29 U.S.C. § 183


(Posted 2014-March-12)

Department of Labor—Boards of Inquiry—Payments to Federal Employees From Non-Government Sources (18 U.S.C. § 209)—Proposed Supplementation of
Compensation

1978-November-16

Legality and Propriety of FBI Acquisition of Private Papers


(Posted 2014-March-12)

Federal Bureau of Investigation—Constitutional Law—Fourth Amendment—Privacy Act (5 U.S.C. § 5522)—Acquisition of Private Papers

1978-November-06

Effect of the Order in Which the President Signs Two Bills


(Posted 2014-March-12)

Enrolled Bills—Effect of Order of Approval by the President—Revenue and Energy Tax Acts of 1978 (26 U.S.C. § 46)

1978-November-06

Constitutionality of Cost-Insurance-Freight Basis of Customs Valuation


(Posted 2014-March-12)

Constitutional Law—U.S. Tariffs and Customs—Procedures for Levying Ad Valorem Rates of Customs Duties—Cost-Insurance-Freight (CIF) Customs Valuation System

1978-October-20

Proposal to Require Government Contractors to Comply With Wage and Price Guidelines as a Condition of Doing Business With the Government


(Posted 2014-March-12)

Federal Property and Administrative Services Act of 1949 (40 U.S.C. § 481)—Government Contracts—Wage and Price Standards in Government Procurement

1978-October-10

Due Process Requirements in Transferring Inmates From the General Prison Population to Administrative and Disciplinary Segregation (III)


(Posted 2014-March-12)

Bureau of Prisons—Involuntary Transfers of Prisoners to Segregation—Due Process Safeguards in Administrative and Disciplinary Segregation

1978-October-10

Whether Department of Justice Employee May Teach Law School Course


(Posted 2014-March-12)

Government Officers and Employees—Standards of Conduct (28 CFR 45.735.12)—Outside Employment—Teaching Law School Course

1978-October-06

Participation of the State Department in Producer-Consumer Fora and Other International Negotiations Aimed at Stabilizing International Commodity Markets


(Posted 2014-March-12)

The President—Authority to Participate in International Negotiations—Trade Act of 1974 (19 U.S.C. § 2101)—Participation in Producer-Consumer Fora

1978-September-29

Tort Liability of the United States and a Commercial Air Carrier Arising Out of Government Action During a Commercial Aircraft Hijacking


(Posted 2014-March-12)

Federal Aviation Administration—Federal Bureau of Investigation—Air Transportation Security (49 U.S.C. § 1357(e))—Management of Aircraft Hijacking (49 U.S.C. § 1472(o))

1978-September-26

Applicability of the Service Contract Act of 1965 to Federal Reserve Banks


(Posted 2014-March-12)

Service Contract Act of 1965 (41 U.S.C. §§ 351 et seq.)—Applicability to Federal Reserve Banks

1978-September-19

Delegation and Quorum Issues Concerning the National Commission on Libraries and Information Science


(Posted 2014-March-12)

National Commission on Libraries and Information Science (20 U.S.C. §§ 1501 et seq.)—Quorum Under Commission’s Sunshine Act—Delegation of Authority by the Librarian of Congress

1978-September-08

Whether the Department of Justice May Furnish Technical Assistance to the State of Iowa in Litigation Between the State and a Private Party


(Posted 2014-March-12)

Government Officers and Employees—Department of Justice (5 U.S.C. § 3372)

1978-September-06

Status of the National Security Council as an Agency Under the Freedom of Information Act


(Posted 2014-March-12)

Freedom of Information Act (5 U.S.C. § 552)—National Security Council—Agency Status Under FOIA

1978-September-06

Authority of Water Resources Council to Expend Carried-Over Funds


(Posted 2014-March-12)

Water Resources Council (42 U.S.C. § 1962a)—Authority to Expend Carried-Over Funds

1978-September-01

Release to a Court of Trade Secret Information Protected Under the Federal Food, Drug, and Cosmetic Act


(Posted 2014-March-12)

Trade Secrets—Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 331)—Disclosure—Swine Influenza Immunization Program (42 U.S.C. § 2746)

1978-August-31

Authority of Comptroller General to Obtain Information Relating to United States Metric Board Appointments and Recent Coal Strike


(Posted 2014-March-12)

General Accounting Office—Authority to Obtain Information in Possession of Executive Branch—Constitutional Law—President—Confidential Communications—Appointments

1978-August-22

Disposition of Federal Excess Personal Property Under the Federal Property and Administrative Services Act of 1949 and the Foreign Assistance of 1961


(Posted 2014-March-12)

Federal Excess Personal Property—Disposition Under § 608 of the Foreign Assistance Act of 1961 (22 U.S.C. § 2358)—Effect of 40 U.S.C. § 483(d)

1978-August-18

Whether Department of Justice May Accept Uncompensated Services of Student Volunteers


(Posted 2014-March-12)

Voluntary Services (31 U.S.C. § 665(b), 5 U.S.C. § 3111)—Use of Student Volunteers

1978-August-16

Constitutionality of Bill Restricting President’s Authority to Remove the Director of the Office of Personnel Management


(Posted 2014-March-12)

Civil Service Reform Act (5 U.S.C. § 1101 et seq.)—Director of Office of Personnel Management

1978-August-14

Authority of Civil Service Commission to Require Department of Justice to Hire Attorneys According to Numerical Rating System


(Posted 2014-March-12)

Veterans Preference Act (5 U.S.C. §§ 2108, 3309–3320)—Application to Attorney Positions

1978-August-09

Status of the Pacific Northwest River Basin Commission Under the Federal Unemployment Tax Act


(Posted 2014-March-12)

Status of the Pacific Northwest River Basin Commission Under the Federal Unemployment Tax Act

1978-July-27

Restriction on Activities of Members of the Indian Claims Commission After It Goes Out of Existence


(Posted 2014-March-12)

Act of August 13, 1946 (25 U.S.C. § 70b(c))—Restriction on Activities of Former Members of the Indian Claims Commission

1978-July-21

Effect of Tie Vote by Department Review Committee on Declassification of Document


(Posted 2014-March-12)

Classification of Documents (28 CFR Part 17)—Effect of a Tie Vote by the Department Review Committee

 

1978-July-20

Use of LSAT Scores in the Department’s Honor and Summer Intern Programs


(Posted 2014-March-12)

Employee Selection Procedures—Use of LSAT Scores in the Department’s Honor and Summer Intern Programs

1978-July-19

Representation by Former Assistant U.S. Attorney of Defendants in Case Brought by United States on Behalf of Indian Tribe


(Posted 2014-March-12)

Conflicts of Interest (18 U.S.C. § 207)—American Bar Association Code of Professional Responsibility

1978-July-18

Application of Antilobbying Laws to Materials Prepared by the Department of the Interior for Public Release in Connection With Proposed Legislation


(Posted 2014-March-12)

Antilobbying Laws (18 U.S.C. § 1913, Public Law 95-465, 92 Stat. 1291)—Department of the Interior

1978-July-12

Service of Department of Justice Attorney as Chairman of the Legal Affairs Committee of State Chapter of National Organization


(Posted 2014-March-12)

Standards of Conduct (28 CFR Part 45)—Service of Employee in State Chapter of a National Organization

1978-June-29

Service of Private Sector Persons on Food and Drug Administration Advisory Committees


(Posted 2014-March-12)

Advisory Committees—Food and Drug Administration—Conflicts of Interest (18 U.S.C. § 208)

1978-June-23

Liability and Insurance Coverage for Government Employees Who Use Automobiles in Connection With the Official Travel of the President and Vice President


(Posted 2014-March-12)

Officers and Employees—Volunteers—Federal Tort Claims Act (28 U.S.C. § 2679(b))—Operation of Motor Vehicles—Liability

1978-June-23

Legality of Department of Defense Hiring Practices in Foreign-Area Installations


(Posted 2014-March-12)

Veterans Preference Act (5 U.S.C. §§ 2108, 3309–3320)—Dependents—Preference—Foreign Installations

1978-June-20

Role and Composition of Certain Advisory Committees Under the Federal Meat Inspection Act and Poultry Products Inspection Act


(Posted 2014-March-12)

Advisory Committees—Federal Meat Inspection Act (21 U.S.C. § 661(a)(4))—Poultry Products Inspection Act (21 U.S.C. § 454(a)(4))

1978-June-16

Furnishing Information to Congress Under Section 222(f) of the Interstate Commerce Act


(Posted 2014-March-12)

Interstate Commerce Commission—Furnishing Information to Congress (49 U.S.C. § 322(d))

1978-June-06

Litigation Authority of the Comptroller of the Currency


(Posted 2014-March-12)

Comptroller of the Currency—Litigation Authority (15 U.S.C. § 78u(d))

1978-June-05

Legality of Common Carriers Assisting the Federal Government In Connection With Warrantless Electronic Surveillance for Foreign Intelligence Purposes


(Posted 2014-March-12)

Intelligence—Warrantless Electronic Surveillance—Common Carriers (18 U.S.C. §§ 2510–2520, 47 U.S.C. § 605)

1978-May-26

Whether the Special Counsel for the Merit Systems Protection Board May Be Protected by Statute From Removal by the President Except for Specific Cause


(Posted 2014-March-12)

Presidential Appointees—Removal Power—Civil Service Reform Act—Constitutional Law (Article II, § 2, cl. 2)

1978-May-18

Legality of Designation of Certain Acting Officials by the Secretary of Energy (II)


(Posted 2014-March-12)

Department of Energy—Appointment of Interim Officers—Department of Energy Organization Act (42 U.S.C. § 7342)

1978-May-18

Legality of Designation of Certain Acting Officials by the Secretary of Energy


(Posted 2014-March-12)

Department of Energy—Vacancies (42 U.S.C. § 7342)—Vacancy Act (5 U.S.C. §§ 3345–3349)—De Facto Officers

1978-May-18

Whether Prosecutions for “Eluding Inspection” Under 8 U.S.C. § 1325 May Be Brought in the District Where the Defendant Is Apprehended


(Posted 2014-March-12)

Immigration and Nationality Act (8 U.S.C. § 1329)—Eluding Inspection—Criminal Offense—Venue

1978-May-17

Power of Congress to Authorize Federal Officers or Agencies to Remove or Discipline Presidential Appointees Performing Executive Functions


(Posted 2014-March-12)

Presidential Appointees—Removal Power or Disciplinary Action—Constitutional Law (Article II, § 2, cl. 2)

1978-May-16

Reorganization Plan Dealing With More Than One Logically Consistent Subject Matter


(Posted 2014-March-12)

Reorganization Act—Reorganization Plan Dealing With More Than One Logically Consistent Subject Matter (5 U.S.C. § 905(a)(7))

1978-May-16

Due Process Requirements in Transferring Inmates From the General Prison Population to Administrative and Disciplinary Segregation (II)


(Posted 2014-March-12)

Bureau of Prisons—Inmates—Administrative Segregation—Supplemental Views

1978-May-10

Due Process Requirements in Transferring Inmates From the General Prison Population to Administrative and Disciplinary Segregation


(Posted 2014-March-12)

Bureau of Prisons—Inmates—Administrative Segregation—Due Process

1978-May-09

Government Authority to Acquire Leasehold Interests in Real Property Under the Declaration of Taking Act


(Posted 2014-March-12)

Eminent Domain—Leaseholds—Rentals—Economy Act Limitation (40 U.S.C. § 278(a))

1978-May-05

Constitutionality of Bill Allowing Federal Employees to Take
Time Off to Participate in Religious Observances


(Posted 2014-March-12)

Constitutional Law—First Amendment—Flexibility in Federal Employee Work Schedules—Religious Observance

1978-April-19

Concurrent Delegations in the Department of Housing and Urban Development


(Posted 2014-March-12)

Department of Housing and Urban Development—Delegations of Authority—42 U.S.C. §§ 3533, 3535

1978-April-07

Receipt of Veterans’ Benefits by Persons Who Obtained Upgraded Discharges


(Posted 2014-March-12)

Veterans—Benefits—Effect of Upgraded Discharges (38 U.S.C.A. 3103)

1978-April-05

Transfer of Funds From the National Commission on the Observance of International Women’s Year to the Committee of the National Women’s Conference


(Posted 2014-March-12)

National Commission on Observance of International Women’s Year—Transfer of Funds—Authority (Public Law 94-107 (1975), 89 Stat. 1003)

1978-March-16

Constitutionality of Providing Tax Credits or Grants for Tuition Payments to Nonpublic Elementary and Secondary Schools


(Posted 2014-March-12)

Constitutional Law—First Amendment—Establishment Clause—Nonpublic Elementary and Secondary Schools—Tuition—Tax Credits

1978-March-16

Service of Acting Administrator of the Law Enforcement Assistance Administration Beyond Thirty Days Following the Resignation of the Administrator


(Posted 2014-March-12)

Vacancy Act (5 U.S.C. §§ 3345–3349)—Law Enforcement Assistance Administration

1978-March-16

Transfer of Responsibility to Make Preliminary Determination of Merits of Federal Employee’s Complaint From Equal Employment Opportunity Commission to Civil Rights Commission’s Successor Agency


(Posted 2014-March-12)

Reorganization Plan No. 1 of 1978—Equal Employment Opportunity Commission—Transfer of Function

1978-March-10

Authority of the Department of Justice to Retain Private Legal Counsel


(Posted 2014-March-12)

Department of Justice—Retention of Private Counsel—Authority—Defense of Federal Officials

1978-March-08

CIA Investigations of United States Persons in the United States


(Posted 2014-March-12)

Central Intelligence Agency—Investigative Authority—United States Citizens—Weissman v. CIA (565 F.2d 692)

1978-March-01

Authority of Department of Transportation to Compensate Parties Intervening in Proceedings Before the Department


(Posted 2014-March-12)

Administrative Law—Agency Authority—Payment of Attorneys’ Fees—Greene County Planning Board v. Federal Power Commission (559 F.2d 1227)

1978-February-28

Whether U.S. Attorneys Are Inferior Officers Under the Appointments Clause


(Posted 2014-March-12)

United States Attorneys—Suggested Appointment Power of the Attorney General—Constitutional Law (Article II, § 2, cl. 2)

1978-February-27

Whether the Arms Control and Disarmament Act Requires
Preparation of an Arms Control Impact Statement for Nonweapons Programs


(Posted 2014-March-12)

Arms Control and Disarmament Act (22 U.S.C. § 2576)—Arms Control Impact Statements—Nonweapons Program

1978-February-24

Responsibility and Authority of FBI Agents to Respond to Criminal Offenses Outside the Statutory Jurisdiction of the FBI


(Posted 2014-March-12)

Federal Bureau of Investigation—Statutory Jurisdiction—Authority of Agents Concerning Non-Federal Offenses

1978-February-23

Effect of Flood Disaster Prevention Act on Executive Order 11988


(Posted 2014-March-12)

Flood Disaster Prevention Act (42 U.S.C. § 4106)—Mortgage Loans—Effect of Statute on Executive Order

1978-February-14

Monitoring Administration of Public Educational Television or Radio Broadcasting Facilities Grants


(Posted 2014-March-12)

Corporation for Public Broadcasting—Grants—Monitoring Administration of (47 U.S.C. § 392)

1978-February-09

Indemnification of Dresden Exhibit by the Federal Council on the Arts and Humanities


(Posted 2014-March-12)

Arts and Artifacts Indemnity Act (20 U.S.C. § 972)—Statutory Limits—Dresden Exhibit

1978-February-06

Effect of Holdover Provisions of the Legal Services Corporation Act on the President’s Authority to Make Recess Appointments to the Corporation’s Board of Directors


(Posted 2014-March-12)

Recess Appointments—Constitution (Article II, § 2, cl. 3)—Legal Services Corporation—Effect of Statutory Holdover Provisions

1978-January-31

Status of the Chairmanship of the Federal Reserve Board If the President’s Nominee Has Not Been Confirmed as Chairman Before the Incumbent’s Term Expires


(Posted 2014-March-12)

Federal Reserve Board—Vacancy With the Office of the Chairman—Status of the Vice Chairman (12 U.S.C. §§ 242, 244)

1978-January-30

Whether Antilobbying Statute Prohibits Federal Judges From Using Official Resources to Communicate With Members of Congress Concerning Proposed Legislation


(Posted 2014-March-12)

Applicability of Antilobbying Statute (18 U.S.C. § 1913)—Federal Judges

1978-January-27

Exemption From Competitive Service of Supergrade Positions in the Drug Enforcement Administration Created by Reorganization Plan No. 1 of 1968


(Posted 2014-March-12)

Drug Enforcement Administration—Supergrade Positions Created by Reorganization Plan—Exemption From Competitive Service

1978-January-27

Exemption From Competitive Service of Supergrade Positions in the Drug Enforcement Administration


(Posted 2014-March-12)

Drug Enforcement Administration—Supergrade Positions—Exemption From Competitive Service

1978-January-25

Constitutionality of Civil Damages Provisions of Fair Housing Bill


(Posted 2014-March-12)

Fair Housing—Civil Rights Act—Civil Penalties—Application of Seventh Amendment—Jury Trial

1978-January-25

Legality of Warrantless Foreign Intelligence Surveillance Using Concealed Television Cameras and Beepers


(Posted 2014-March-12)

Warrantless Foreign Intelligence Surveillance—Use of Television—Beepers

1978-January-19

Prosecution of Ocean Freight Rebating Cases Under Conspiracy Statute


(Posted 2014-March-12)

Rebates in Violation of Shipping Act—Applicability of Conspiracy Statute (18 U.S.C. § 371)

1978-January-11

Acceptance of Position With Montgomery Ward Company by Consumer Product Safety Commission Employee


(Posted 2014-March-12)

Consumer Product Safety Commission—Former Officers and Employees—Accepting Private Employment

1977
1977-December-28

Residency Requirements for Member of the Federal Reserve Board


(Posted 2014-February-27)

Federal Reserve Board—Residency of Board Member (12 U.S.C. § 241)

1977-December-22

Continuing Service of Deputy Director of OMB as Acting Director During Vacancy


(Posted 2014-February-27)

Status of the Acting Director, Office of Management and Budget

1977-December-21

Whether Former Assistant United States Attorney May Represent Potential Criminal Defendant


(Posted 2014-February-27)

Conflict of Interest—Former United States Attorney

1977-December-16

Termination of Federal Financial Assistance Under the Civil Rights Act of 1964


(Posted 2014-February-27)

Termination of Federal Financial Assistance Under the Civil Rights Act of 1964

1977-December-14

Whether Official Opinions of the General Counsel for the Department of Health, Education, and Welfare Construing HEW Regulations Have Binding Effect in a Prosecution for Violation of Those Regulations


(Posted 2014-February-27)

Effect of Agency Interpretation of Regulations—Confidentiality of Alcohol and Drug Abuse Patient Records

1977-December-14

Presidential Approval of Naval Petroleum Reserve Contract


(Posted 2014-February-27)

Presidential Approval of Naval Petroleum Reserve Contract NOd 4219-2664

1977-December-14

FBI Investigative Jurisdiction Over Threats or Acts Against Federal Officers Not Covered by 18 U.S.C. §§ 111 and 114


(Posted 2014-February-27)

Conspiracy to Impede or Injure an Officer of the United States, 18 U.S.C. § 372

1977-December-07

Authority of General Services Administration to Restore Sanctioned Employees to Prior Grades


(Posted 2014-February-27)

General Services Administration—Disciplinary Matter—Authority of the General Services Administration (5 U.S.C. § 5596)

1977-December-07

Legal Basis to Withhold Documents Relating to the Export Administration Act From the House Committee on Government Operations


(Posted 2014-February-27)

The Disclosure of Documents to the House Committee on Government Operations—Boycotts—Export Administration Act

1977-December-02

Reorganization of Equal Employment Enforcement Authority


(Posted 2014-February-27)

Reorganization of Equal Employment Enforcement Authority—Concurrent Authority

1977-November-17

Acceptance of Cash Prize by a Federal Deposit Insurance Corporation Examiner


(Posted 2014-February-27)

Acceptance of Cash Prize by a Federal Deposit Insurance Corporation Examiner

1977-November-10

Participation of Antitrust Division Attorney in “Armored Car” Cases


(Posted 2014-February-27)

Participation of Antitrust Division Attorney in “Armored Car” Cases

1977-November-03

Immigration Status of Persons Employed by Nonappropriated Fund Instrumentalities of the United States


(Posted 2014-February-27)

Immigration Status of Persons Employed by Nonappropriated Fund Instrumentalities of the United States

1977-November-03

Richard Helms’ Eligibility Under 5 U.S.C. § 8314 to Receive an Annuity or Retired Pay


(Posted 2014-February-27)

Richard Helms’ Eligibility Under 5 U.S.C. § 8314 to Receive an Annuity or Retired Pay

1977-October-25

Presentation of Enrolled Bills When the President Is Abroad


(Posted 2014-February-27)

The President—Constitutional Law (Article I, § 7, cl. 2)—Presentation of Enrolled Bills—Absence of the President

1977-October-20

President’s Authority To Promulgate a Reorganization Plan Involving the Equal Employment Opportunity Commission


(Posted 2014-February-27)

President’s Authority To Promulgate a Reorganization Plan Involving the Equal Employment Opportunity Commission

1977-October-19

Travel and Subsistence Expenses for the Director-Designate of the FBI


(Posted 2014-February-27)

Travel and Subsistence Expenses for the Director-Designate of the Federal Bureau of Investigation

1977-October-18

Members of Congress Holding Commissions in the Armed Forces Reserves


(Posted 2014-February-27)

Members of Congress Holding Reserve Commissions

1977-October-17

Application of Freedom of Information Act to Private Letters Written to the President


(Posted 2014-February-27)

Privacy—Persons Writing to the President—Freedom of Information Act (5 U.S.C. § 552e (1976))

1977-October-14

Personal Tort Liability of Regional Fishery Management Council Members and Staff


(Posted 2014-February-27)

Personal Tort Liability of Regional Fishery Management Council Members and Staff

1977-October-05

Impact of Panama Canal Zone Treaty on the Filling of the Vacancy in the Office of the District Judge for the United States District Court for the District of the Canal Zone


(Posted 2014-February-27)

Impact of Panama Canal Zone Treaty on the Filling of the Vacancy in the Office of the District Judge for the United States District Court for the District of the Canal Zone

1977-September-29

Role of the Solicitor General


(Posted 2014-February-27)

Role of the Solicitor General

1977-September-27

Contractor’s Payment of Employees’ Membership Dues for Private Clubs With Discriminatory Practices


(Posted 2014-February-27)

Dues-Paying Practices of Private Clubs—Discriminatory Practices

1977-September-27

Transfer of Watergate Special Prosecution Force Records Containing Tax Return Information to the National Archives


(Posted 2014-February-27)

Transfer of Watergate Special Prosecution Force Records to the National Archives—Income Tax Information—26 U.S.C. § 6103(a)

1977-September-26

Use of White House Funds for Payment of Consultants to Assist Presidential Nominee to Regulatory Agency at Confirmation Hearing


(Posted 2014-February-27)

Consultants—Employment to Assist Presidential Nominee at His Confirmation Hearing (5 U.S.C. § 3190, 31 U.S.C. § 628)

1977-September-26

Constitutionality of 18 U.S.C. § 1302 as Applied to Newspaper Advertisements by the Maryland Lottery Commission


(Posted 2014-February-27)

Constitutionality of 18 U.S.C. § 1302—Lotteries

1977-September-23

Whether the Term “Federal Financial Assistance” in Section 504 of the Rehabilitation Act of 1973 Includes Federal Programs of Guarantee or Insurance


(Posted 2014-February-27)

Rehabilitation Act of 1973—Nondiscrimination Provision

1977-September-22

Law Enforcement by Marine Corps at San Onofre Nuclear Generation Plant


(Posted 2014-February-27)

Law Enforcement at San Onofre Nuclear Generation Plant

1977-September-20

Issuance of Commemorative Proclamations


(Posted 2014-February-27)

Commemorative Proclamations—Issuance of

1977-September-19

Transfer of Authority to Resolve Disputes Regarding Naval Petroleum Reserve


(Posted 2014-February-27)

Transfer of Authority of the Secretary of the Navy to the Secretary of Energy—Naval Petroleum Reserve

1977-September-12

Proposed District of Columbia Uniform Controlled Substances Act


(Posted 2014-February-27)

Proposed District of Columbia Uniform Controlled Substances Act

1977-September-09

Presidential Authority to Act in the Case of Eddie Slovik


(Posted 2014-February-27)

Presidential Authority—Slovik Case—Constitutional Law—Posthumous Pardons—Review of Sentence (10 U.S.C. § 1552)

1977-September-09

Payment of Salary of Appointee to Dual Positions of Director of Peace Corps and Deputy Director of ACTION


(Posted 2014-February-27)

Dual Office—Compensation (5 U.S.C. § 5533)—Peace Corps—ACTION

1977-September-08

Transfer of Appropriated Funds From the Department of Housing and Urban Development to the National Commission on Neighborhoods


(Posted 2014-February-27)

National Commission on Neighborhoods (Pub. L. 95-24)—Powers—Appropriations

1977-September-01

Effect of Court of Appeals Decision on CIA Activities


(Posted 2014-February-27)

Weissman v. Central Intelligence Agency—District of Columbia Circuit—Effect of Decision

1977-August-18

Authority of Secretary of Agriculture to Establish Price Support Program for Sugar Producers Under the Agriculture Act of 1949


(Posted 2014-February-27)

Price Support for Sugar Producers—Agriculture Act of 1949

1977-August-12

Legality of Presidential Appointees’ Writing Articles and Books for Publication


(Posted 2014-February-27)

Executive Order No. 11222—Standards of Conduct—Government Officials Writing Articles and Books

1977-August-12

Legal Questions Raised by the Library of Congress Critique of Reorganization Plan No. 1 of 1977


(Posted 2014-February-27)

Legal Questions Raised by the Library of Congress Critique of Reorganization Plan No. 1 of 1977

1977-July-28

Appointment of Members of the National Commission on Neighborhoods


(Posted 2014-February-27)

National Commission on Neighborhoods—Appointment of Members

1977-July-28

Disposition of Nixon Memorabilia


(Posted 2014-February-27)

Disposition of Nixon Memorabilia

1977-July-22

Appointment of Member of the Federal Election Commission Who Resigned From Federal Service Immediately Prior to Appointment


(Posted 2014-February-27)

Federal Election Commission—Appointment of Members (2 U.S.C. § 437)

1977-July-20

Proper Agency to Make Payment for the Compensation of Court-Appointed Expert Witnesses in Cases Handled by the Department of Justice


(Posted 2014-February-27)

Compensation of Court-Appointed Witnesses

1977-July-20

Obligation of United States to Compensate Court-Appointed Expert Witnesses in Pending Litigation


(Posted 2014-February-27)

Compensation of Court-Appointed Expert Witnesses (United States v. R.J. Reynolds Tobacco Company)

1977-July-07

Retirement Benefits of Tax Court Judges


(Posted 2014-February-27)

Retirement Benefits of Tax Court Judges

1977-June-25

Damage Claims Under the Atomic Energy Act


(Posted 2014-February-27)

Damage Claims Under the Atomic Energy Act

1977-June-21

Application of 18 U.S.C. §§ 212–213 to Borrowing Practices of Bank Examiners


(Posted 2014-February-27)

Borrowing Practices of Bank Examiners

1977-June-15

Power of the President to Designate Acting Member of the Federal Home Loan Bank Board


(Posted 2014-February-27)

Power of the President to Designate Acting Member of the Federal Home Loan Bank Board

1977-June-14

Request of Federal Employee to Appear on Behalf of His Daughter in IRS Audit


(Posted 2014-February-27)

Request of a Federal Employee—Appearance on Behalf of His Daughter in IRS Audit

1977-June-10

State Jurisdiction to Regulate Pollutant Emissions


(Posted 2014-February-27)

State Jurisdiction to Regulate Pollutant Emissions

1977-June-08

Rental Fees for Spaces in Military Trailer Parks


(Posted 2014-February-27)

Rental Fees for Spaces in Military Trailer Parks

1977-June-07

Impact of Appropriations Committee Objection to Reprogramming Action by Agency for International Development


(Posted 2014-February-27)

Reprogramming—Legislative Committee Objection

1977-June-03

Constitutionality of Legislation Increasing the Size of the Board of Directors of the Federal National Mortgage Association


(Posted 2014-February-27)

Constitutionality of S. 1397—Federal National Mortgage Association

1977-June-02

Service by Members of Congress on National Commission on Neighborhoods


(Posted 2014-February-27)

“Office under the United States”—National Commission on Neighborhoods

1977-May-31

Applicability of Hatch Act to Service by United States Attorney and Assistants as Delegates to the Virgin Islands Constitutional Convention


(Posted 2014-February-27)

United States Attorney, Virgin Islands—Hatch Act Applicability

1977-May-24

Determination of Date of Commencement of Service of Members of the Renegotiation Board


(Posted 2014-February-27)

Determination of Date of Commencement of Service of Federal Officers—Renegotiation Board

1977-May-24

President’s Authority To Appoint an Acting Chairman of the Civil Aeronautics Board


(Posted 2014-February-27)

President’s Authority To Appoint an Acting Chairman of the Civil Aeronautics Board

1977-May-24

Application of Department of Justice Attorney to Argue Civil Rights Case for Private Plaintiffs


(Posted 2014-February-27)

Standards of Conduct—Application Pursuant to 28 CFR § 45.735-9(c)

1977-May-17

Legal and Ethical Aspects of Temporary Exchange of Duties by Assistant United States Attorneys and Assistant Federal Public Defenders


(Posted 2014-February-27)

Interchange of Counsel Project—Assistant United States Attorneys and Assistant Public Defenders

1977-May-16

Detail of Department of Justice Attorneys to Congressional Committees


(Posted 2014-February-27)

Detail of Department of Justice Attorneys to Congressional Committees

1977-May-09

Status of Baggers as Federal Employees Under the Fair Labor Standards Act


(Posted 2014-February-27)

Status of Baggers as Federal Employees—Fair Labor Standards Act

1977-May-09

Authority of Drug Enforcement Administration to Control Production of Plant Papaver Bracteatum


(Posted 2014-February-27)

Control of Papaver Bracteatum—Drug Enforcement Administration

1977-May-03

Legal Remedies for Promotional Use of the President’s Name


(Posted 2014-February-27)

Promotional Use of the President’s Name (15 U.S.C. § 1051, 15 U.S.C. § 45)

1977-May-02

Congressional Access to Tax Returns Under 26 U.S.C. § 6103(f)


(Posted 2014-February-27)

Congressional Access to Tax Returns—26 U.S.C. § 6103(f)

1977-April-27

Acceptance of Gifts to Be Used in the White House, the Official Residence of the Vice President, or the Offices of the President and Vice President


(Posted 2014-February-27)

The White House—The Vice President—Gifts (3 U.S.C. §§ 110, 111; 16 U.S.C. § 6a)

1977-April-22

Proposed Tax Assessment Against the United States Postal Service


(Posted 2014-February-27)

Proposed Tax Assessment Against the United States Postal Service

1977-April-11

Assumption by People’s Republic of China of Expenses of U.S. Delegation


(Posted 2014-February-27)

Assumption by People’s Republic of China of Expenses of U.S. Delegation—Constitution (Art. I, § 9, cl. 8)

1977-April-11

Constitutionality of Proposals Regarding an Independent Attorney General


(Posted 2014-February-27)

Proposals Regarding an Independent Attorney General

1977-April-11

Exclusion of Certain Rhodesian Aliens Under Section 212(a)(27) of the Immigration and Nationality Act


(Posted 2014-February-27)

Section 212(a)(27) of the Immigration and Nationality Act—Exclusion of Certain Aliens—Rhodesia

1977-April-11

Interpretation of the Grandfather Clause in 18 U.S.C. § 709


(Posted 2014-February-27)

Interpretation of the Grandfather Clause in 18 U.S.C. § 709—Use of Word “Federal” in Name of Insurance Company

1977-April-06

Application of the Hatch Act to the Vice President’s Staff


(Posted 2014-February-27)

Application of the Hatch Act to the Vice President’s Staff

1977-April-01

Service of Assistant Section Chief as Reporter on American Law Institute Project


(Posted 2014-February-27)

Standards of Conduct—Service of Assistant Section Chief as Reporter on American Law Institute Project

1977-March-31

Authority of Bureau of Prisons Physicians to Perform Autopsies


(Posted 2014-February-27)

Authority of Bureau of Prisons Physicians to Perform Autopsies

1977-March-29

Liability of Government for Retroactive Veterans’ Benefits Where Discharges Are Upgraded


(Posted 2014-February-27)

Liability of Government for Retroactive Veterans’ Benefits Where Discharges Are Upgraded

1977-March-24

Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service


(Posted 2014-February-27)

Effect of Presidential Pardon on Aliens Who Left the Country to Avoid Military Service

1977-March-22

Use of White House Office Funds to Handle Mail for Members of the President’s Family


(Posted 2014-February-27)

The White House Office—Expenditure of Appropriated Funds—Handling Mail for Members of the President’s Family

1977-March-22

Basis for Federal Jurisdiction in Washington, D.C., Hostage Situation


(Posted 2014-February-27)

Washington, D.C., Hostage Situation: Basis for Federal Jurisdiction

1977-March-21

Appointment of Deputy Director of the Council on International Economic Policy by Its Executive Director


(Posted 2014-February-27)

Appointment of Deputy Director of the Council on International Economic Policy (CIEP) by Its Executive Director

1977-March-07

Legality of Proposed Executive Order Requiring Public Disclosure of Employee Financial Statements


(Posted 2014-February-27)

Presidential Authority—Legality of Proposed Executive Order Requiring Public Disclosure of Employee Financial Statements—Freedom of Information Act (5 U.S.C. § 522)—Privacy Act (5 U.S.C. § 552a)

1977-March-04

Provision of Transportation and Other Services to Former Presidents and Vice Presidents


(Posted 2014-February-27)

Provision of Transportation and Other Services to Former Presidents and Vice Presidents

1977-March-04

Drug Enforcement Administration’s Authority to Impose Civil Penalties


(Posted 2014-February-27)

Drug Enforcement Administration’s Authority to Impose Civil Penalties

1977-February-24

Payment of Travel Expenses Incurred by Person Conducting Official Business on Behalf of the President When the Person Is Not an Officer or Employee of the United States


(Posted 2014-February-27)

Travel Expenses—Person Traveling on Behalf of the President—Use of Appropriated Funds

1977-February-24

Status of an Informal Presidential Advisor as a “Special Government Employee”


(Posted 2014-February-27)

Conflict of Interest—Status of an Informal Presidential Advisor as a “Special Government Employee”

 

1977-February-21

Constitutionality of Inspector General Legislation


(Posted 2014-February-27)

Inspector General Legislation

1977-February-15

Power of a State Legislature to Rescind Its Ratification of a Constitutional Amendment


(Posted 2014-February-27)

Power of a State Legislature to Rescind Its Ratification of a Constitutional Amendment

1977-February-10

Date of “Promulgation” of Law Enforcement Assistance Administration Regulations


(Posted 2014-February-27)

Federal Register Act—Date of “Promulgation” of Law Enforcement Assistance Administration Regulations

1977-January-31

Propriety of Appearance of a Former Justice Department Attorney in a Condemnation Case


(Posted 2014-February-27)

Conflict of Interest—Propriety of Appearance of a Former Justice Department Attorney in a Condemnation Case

1977-January-29

Propriety of Using a Leased Airplane for Personal and Official Purposes


(Posted 2014-February-27)

Conflict of Interest—Propriety of Using a Leased Airplane for Personal and Official Purposes

1977-January-28

Litigation Involving a Corporation Owned by a Government Attorney


(Posted 2014-February-27)

Conflict of Interest—Litigation Involving a Corporation Owned by Government Attorney

1977-January-27

Membership of White House Staff Member on Democratic National Committee


(Posted 2014-February-27)

Hatch Act (5 U.S.C. § 7324)—Membership of White House Staff Member on Democratic National Committee

1977-January-27

Acceptance of Voluntary Service in the White House


(Posted 2014-February-27)

The White House Office—Acceptance of Voluntary Service (31 U.S.C. § 665(b))

1977-January-27

Legality of a Certain Proposed Composition of a Multiemployer Pension Fund Board of Trustees


(Posted 2014-February-27)

Legality of a Certain Proposed Composition of a Multiemployer Pension Fund Board of Trustees

1977-January-27

Representation of Corporation by Law Firm With Which Former United States Attorney Is Associated


(Posted 2014-February-27)

Conflict of Interest—Former United States Attorney

1977-January-26

Provision of Military Aircraft and Hospital Corpsman to Former President Ford


(Posted 2014-February-27)

Presidential Transition Act (3 U.S.C. § 102 note)—Provision of Military Aircraft and Hospital Corpsman to a Former President (31 U.S.C. § 638)

1976
1976-August-31Constitutionality of Regulatory Reform Legislation for Independent Agencies

Although there is no constitutional impediment to the bill’s requirement that independent regulatory agencies communicate their legislative and budgetary messages directly to the Congress without first clearing them with OMB, a uniform rule in the opposite extreme–i.e., that no communication from an independent agency may be sent to OMB unless it is simultaneously sent to the Congress would not adequately protect important interests of the Executive Branch. The congressional access provisions of the bill would not affect the power of the President, or the agency acting on the President’s behalf, to assert executive privilege, because in the absence of express language in the bill, it must be assumed that the bill does not constitute an attempted infringement of the constitutionally based privilege, which is available with respect to those functions of independent regulatory agencies that are of an executive or quasi-executive nature.

1976-August-04Appointment of a Federal Judge to the United Nations Delegation

If this were a matter of first impression, appointing a federal judge to be a representative of the United States to the General Assembly of the United Nations would be inconsistent with the constitutional doctrines of separation of powers and independence of the judiciary. However, because of the longstanding practice of appointing federal judges to temporary office in the Executive Branch, and the absence of any explicit constitutional text, it cannot be maintained that such an appointment would be unconstitutional.

1976-February-13

Constitutionality of Bill Creating an Office of Congressional Legal Counsel

Congressional officers representing the combined power of both houses of Congress–in contrast to officers of either house–who perform significant governmental duties must be appointed as provided in the Appointments Clause of the Constitution.

The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States is an exclusive executive function that must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President’s unlimited removal power.

1975
1975-December-30Constitutionality of Bill Establishing American Folklife Center in the Library of Congress

A bill creating an American Folklife Center in the Library of Congress would violate the separation of powers by vesting the Librarian of Congress, a congressional officer, with executive functions.

The bill would also violate the Appointments Clause by permitting certain members of the Board of Directors of the American Folklife Center to be appointed by members of Congress, the Board of Directors of the Smithsonian Institution, and the Librarian of Congress.

1974
1974-November-30Constitutionality of the Federal Advisory Committee Act

Without reaching definitive conclusions, this memorandum considers three constitutional questions raised by the Federal Advisory Committee Act.

First, is it within Congress’s constitutional powers to regulate advisory committees in general and presidential advisory committees in particular?

Second, even if Congress can regulate advisory committees, may it regulate those committees giving advice to the President without violating the separation of powers?

Third, even if Congress may regulate those committees giving advice to the President, may the President except certain committees from certain regulations because of executive privilege?

1974-November-26FOIA Appeal from Denial of Access to FBI COINTELPRO Files Regarding Professor Morris Starsky

As a matter of administrative discretion, the Department of Justice should grant the FOIA request of an attorney for the FBI’s COINTELPRO-New Left files regarding his client, a professor at Arizona State University and an active member of the Socialist Workers Party.

FOIA Exemption (7) is technically applicable to the withheld documents. However, like all of the exemptions, Exemption (7) is only discretionary, and should not be asserted unless such action is in the public interest. Assertion of the exemption is not recommended for these documents.

1974-August-04Presidential or Legislative Pardon of the President

Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.

If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.

Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.

1973
1973-March-22Constitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy

Congress may establish jurisdiction in United States courts over individuals who commit the offense of hijacking outside the territorial jurisdiction of the United States.

In most cases, state and local law enforcement officers would be authorized to make arrests for violations of the proposed aircraft piracy legislation, either because hijacking airplanes would also violate state law, or because federal law permits federal enforcement officers to delegate arrest authority to state and local law enforcement officers and state law permits state and local law enforcement officers to accept delegated arrest authority.

1972
1972-November-19Presidential Authority to Require the Resignations of Members of the Civil Rights Commission

Members of the Civil Rights Commission serve at the pleasure of the President. The President may therefore require their resignations.

1972-June-11Implementation of Standstill Agreement Pending Approval of ABM Treaty and ICBM Interim Agreement

The Standstill Agreement, made by the President with the Soviet Union pending congressional approval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the Arms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.

The President is not precluded by contract law or authorization and appropriations legislation passed by Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the arms control agreements pending their coming into force.

The President is not precluded by contract law or authorization and appropriations legislation passed by Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the arms control agreements pending their coming into force.

1971
1971-May-28Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent Impairment of Government Functions

The President has inherent constitutional authority to use federal troops to ensure that Mayday Movement demonstrations do not prevent federal employees from getting to their posts and carrying out their assigned government functions.

This use of troops is not prohibited by the Posse Comitatus Act.

1970
1970-June-01Constitutionality of the McGovern-Hatfield Amendment

Although it is difficult to resolve with confidence the substantial arguments that can be made for and against a proposed amendment seeking to employ Congress’s power of the purse to end hostilities in Vietnam, the Administration should oppose the amendment as a matter of policy, if not as one of constitutional law.

1970-May-21The President and the War Power: South Vietnam and the Cambodian Sanctuaries

Recognizing congressional sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even though it was not in name or by its terms a formal declaration of war, the President’s determination to authorize incursion into the Cambodian border area by United States forces in order to destroy sanctuaries utilized by the enemy is the sort of tactical decision traditionally confided to the Commander in Chief in the conduct of armed conflict.

Only if the constitutional designation of the President as Commander in Chief conferred no substantive authority whatever could it be said that prior congressional authorization for such a tactical decision was required. Since even those authorities least inclined to a broad construction of the executive power concede that the Commander in Chief provision does confer substantive authority over the manner in which hostilities are conducted, the President’s decision to invade and destroy the border sanctuaries in Cambodia was authorized under even a narrow reading of his power as Commander in Chief.

1970-May-13Presidential Authority to Permit Incursion Into Communist Sanctuaries in the Cambodia-Vietnam Border Area

Congress has clearly affirmed the President’s authority to take all necessary measures to protect U.S. troops in Southeast Asia. Having determined that the incursion into the Cambodia-Vietnam border area is such a necessary measure, the President has clear authority to order it.

The President’s action with respect to the Cambodian border area, limited in time and in geography, is consistent with the purposes which the Executive and the Congress have pursued since 1964. Whatever theoretical arguments might be raised with respect to the authority of the Commander in Chief to act alone had there been no congressional sanction for our involvement in Southeast Asia, there is no doubt as to the constitutionality of the action in light of the prior affirmance of Congress that the Commander in Chief take all necessary measures to protect U.S. forces in Vietnam. Having determined the necessity, the Commander in Chief has the constitutional authority to act.

1970-January-14Effect of a Repeal of the Tonkin Gulf Resolution

Because the President’s inherent constitutional authority to employ military force abroad depends to a very considerable extent on the circumstances of the case, and, in particular, the extent to which such use of force is deemed essential for the preservation of American lives and property or the protection of American security interests, it is impossible to state in concrete terms the legal effect of a repeal of the Tonkin Gulf Resolution.

Such a repeal standing alone would not only throw into question the legal basis for certain actions the President might deem it desirable to take in the national interest, but would also demonstrate to foreign powers lack of firm national support for the carrying out of the policies set forth in the joint resolutions.

1969
1969-November-30Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools

Public Law 81-874 does not provide statutory authority for the Commissioner of Education in the exercise of his discretion to avoid applying the full sum appropriated to the entitlements of local educational agencies for financial assistance to federally impacted schools.

The President does not have the constitutional authority to direct the Commissioner of Education or the Bureau of the Budget to impound or otherwise prevent the expenditure of funds appropriated by Congress to carry out the legislation for financial assistance to federally impacted schools, Public Law 81-874.

1969-February-26Constitutionality of “No Appropriation” Clause in the Watershed Protection and Flood Prevention Act

A “no appropriation” clause in the Watershed Protection and Flood Prevention Act, requiring approval of a construction project by the appropriate committees of the Senate and House of Representatives before Congress may enact appropriations legislation for the project, is constitutional.

1967
1967-October-02Carriage of Firearms by the Marshal, Deputy Marshals, and Judges of the Customs Court

The Marshal and Deputy Marshals of the Customs Court are not authorized by 18 U.S.C. § 3053 to carry firearms.

Neither the official duties of the Marshal, as described by 28 U.S.C. § 872 and Rule 19 of the Rules of the Customs Court, nor the official duties of the Judges of the Customs Court would appear to necessitate the carriage of firearms.

If the Customs Court finds it necessary to rely solely on its Marshal to police its quarters, it would probably have inherent authority to authorize the Marshal and Deputies to carry arms; however, there would be no basis for assuming inherent authority in the Court to authorize possession of arms by its Judges.

A state could not constitutionally require a federal official whose duties necessitate carrying firearms to obtain a firearms license.

1964
1964-June-30Use of Marshals, Troops, and Other Federal Personnel for Law Enforcement in Mississippi

The problems of using large numbers of federal civilian law enforcement personnel in Mississippi are more practical than legal. So long as they confine themselves to investigation and prosecution of federal crimes, there is no legal problem. The practical problem is whether their presence serves to aggravate the emotions of the populace or alienate local law enforcement officials.

On the factual assumption that there is a complete breakdown of state law enforcement as a result of Klan activity and Klan connections with local sheriffs and deputies, the President could, as a legal matter, invoke the authority of sections 332 and 333 of title 10 to use military troops in Mississippi. There is considerable information available that could be used to support that assumption as to some areas in Mississippi. But in view of the extreme seriousness of the use of those sections, the government should have more evidence than it presently has of the inability of state and local officials to maintain law and order–as a matter of wisdom as well as of law.

1963
1963-December-25Providing Government Films to the Democratic National Committee or Congressmen

Government motion picture films may be made available to the Democratic National Committee or congressmen when public release is authorized by statute.

In the absence of statutory authority, government films may be made available to the Committee or congressmen on a revocable loan basis if a public interest can be shown to justify such loan and if the films are available equally to other private organizations.

It would be improper for any government agency to produce a film for the specific purpose of making it available to the Democratic National Committee or to congressmen.

1963-May-09Proposal That the President Accept Honorary Irish Citizenship

Acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of the Emoluments Clause of the Constitution.

The procedure which has developed under the constitutional provision and its implementing statute would permit the President to participate in the formal ceremonies, accept the written evidence of the award and have it deposited with the Department of State, subject to the subsequent consent of Congress.

Even if Congress does not enact consenting legislation, the President could probably have the document conferring honorary Irish citizenship delivered to him by the Department of State after he leaves the White House.

1962
1962-October-18Legal and Practical Consequences of a Blockade of Cuba

The President has the power to establish a blockade of Cuba under the laws of the United States without further congressional action.

A blockade may be unilaterally established by the United States under international law but its establishment may be questioned within the Organization of American States and the United Nations. In addition, such a blockade could be regarded by Cuba and other Soviet Bloc nations as an act of war.

1962-August-29Authority Under International Law to Take Action If the Soviet Union Establishes Missile Bases in Cuba

In the event that missile bases should be established in Cuba by the Soviet Union, international law would permit use by the United States of relatively extreme measures, including various forms and degree of force, for the purpose of terminating or preventing the realization of such a threat to the peace and security of the western hemisphere.

An obligation would exist to have recourse first, if time should permit, to the procedures of collective security organizations of which the United States is a member.

The United States would be obliged to confine any use of force to the least necessary to the end proposed.

1962-February-25Authority of Congress to Regulate Wiretapping by the States

Congress has authority under the Commerce Clause to regulate state wiretapping practices by prescribing a rule of evidence in state courts, limiting the authority of state officials to tap wires and to disclose and use information thereby obtained, prescribing the grounds and findings on which a state court may issue wiretap orders, and directing state courts to file reports with federal officials.

1961
1961-October-09Lobbying by Executive Branch Personnel

Title 18, section 1913 of the U.S. Code does not bar conversations which a Peace Corps employee had with certain members of Congress at the direction of the Director of the Peace Corps in an attempt to enlist their support for a bill to establish the Peace Corps on a statutory basis.

A literal interpretation of 18 U.S.C. § 1913, which would prevent the President or his subordinates from formally or informally presenting his or his administration’s views to the Congress, its members, or its committees regarding the need for new legislation or the wisdom of existing legislation, or which would prevent the administration from assisting in the drafting of legislation, would raise serious doubts as to the constitutionality of that statute. As so interpreted, it would seriously inhibit the exercise of what is now regarded as a basic constitutional function of the President concerning the legislative process.

1961-May-10Authority of the President to Reassign the Chairmanship of the Federal Power Commission

The President has the power to remove the commissioner now serving as Chairman of the Federal Power Commission and reassign the chairmanship to another commissioner, and if the matter were to be litigated by the commissioner following his involuntary removal from chairmanship, the President’s power to remove him would probably, but not certainly, be sustained.

1961-April-11Intervention by States and Private Groups in the Internal Affairs of Another State

It would appear to be a violation of international law relating to neutrality if a neutral state permits the launching of an attack by organized armed forces from within its borders, permits the passage of organized armed forces through its territory, or permits armed forces to be organized and trained for such purpose within its borders.

There would appear to be no violation of international law where a neutral state permits the mere provision of arms by private parties, even the stockpiling of arms, as long as they remain within the control of private groups rather than belligerent parties, or permits volunteers to be recruited, assembled, and perhaps even trained, so long as this does not approach the point of an organized military force.

1961-March-08Participation of the Vice President in the Affairs of the Executive Branch

There is no general bar, either of a constitutional or statutory nature, against the President’s transfer of duties to the Vice President; however, where, by the nature of the duty or by express constitutional or statutory delegation, the President must exercise individual judgment, the duty may not be transferred to anyone else.

In foreign relations, at the will and as the representative of the President, the Vice President may engage in activities ranging into the highest levels of diplomacy and negotiation and may do so anywhere in the world.

In matters of domestic administration, the nature and number of the Vice President’s executive duties are, as a practical matter, within the discretion of the President, with the recent and important exception of statutory membership on the National Security Council. Since the Vice President is not prevented either by the Constitution or by any general statute from acting as the President’s delegate, the range of transferrable duties would seem to be co-extensive with the scope of the President’s power of delegation.

1961-February-27Authority of the President to Designate Another Member as Chairman of the Federal Power Commission

While a substantial argument can be made to support the President’s the authority to change the existing designation of the Chairman of the Federal Power Commission and to designate another member of that agency as Chairman, sufficient doubt exists so as to preclude a reliable prediction as to the result should the matter be judicially tested.

Apparently the only remedies the present Chairman would have, if his designation should be recalled and another member of the Commission designated as Chairman, would be to bring an action in the nature of quo warranto or sue for the additional $500-a-year annual salary of the Chairman in the Court of Claims. Since the Chairman has no functions additional to those of any other commissioner affecting parties appearing before the Commission, their rights could not be affected even if he should win such a suit.

1961-January-24Authority of the President to Blockade Cuba

Under international law, the President may institute a blockade of Cuba as an incident to a state of war, and conceivably a blockade could also be justified as a necessary measure of defense.

The legality of the blockade could probably be tested by Cuba, by other countries, and by their nationals in the courts of the United States, and Cuba and other countries could raise the legality issue before the United Nations and the Organization of American States. It is not clear whether this issue could be raised before the International Court of Justice.

1958
1958-February-23Constitutionality of Enrolled Bill Restricting the Withdrawal of Public Land for National Defense

The constitutionality of an enrolled bill providing that withdrawals of public lands for national defense purposes shall not become effective until approved by act of Congress involves a question as to the relationship between the President’s constitutional powers as Commander in Chief and the constitutional authority of Congress over the public lands.

The exception that would make the enrolled bill’s restrictions inapplicable in time of national emergency declared by the President may be adequate to resolve whatever doubt there may be as to the constitutionality of the bill in favor of a conclusion that it makes sufficient provision for the exercise in time of national emergency of the President’s powers as Commander in Chief.

1957
1957-November-04Applicability of Executive Privilege to Independent Regulatory Agencies

A case cannot be made for absolute exclusion of the so-called independent regulatory agencies from the doctrine of executive privilege.

Although free from executive control in the exercise of quasi-legislative and quasi-judicial functions, independent regulatory agencies frequently exercise important functions executive in nature.

As to the latter functions, the doctrine of executive privilege is as much applicable to regulatory commissions as to the executive departments and officers of the government.

1956
1956-July-11Constitutionality of Pending Bills Restricting the Withdrawal of Public Land for National Defense

Pursuant to his constitutional powers as Commander in Chief, the President, particularly in time of war or national emergency, may have authority without the authorization of Congress to reserve and use public lands for the training and deployment of the armed forces of the United States for national defense purposes.

If the above is true, any attempted restriction of this authority by Congress would be an unconstitutional invasion of the President’s authority as Commander in Chief.

1956-January-04Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission

Questions put to the Chairman of the Atomic Energy Commission regarding conversations he may have had with the President or his assistants in the White House come within the scope of the executive privilege, whereby information, papers, and communications which the President or the heads of the executive departments or agencies deem confidential in the public interest need not be disclosed to a congressional committee. In addition, the questions are within the scope of the President’s letter of May 17, 1954 to the Secretary of Defense setting forth the Administration’s policy that, in the public interest, advisement on official matters between employees of the Executive Branch of the government be kept confidential, and any conversations, communications, documents or reproductions concerning such advisement not be disclosed in congressional hearings.

Even if it were conceded only for the purpose of argument that the Atomic Energy Commission is a typical independent regulatory commission, which is not in one branch of the government to the exclusion of others but straddles at least two branches so as to be part of each, there is historical precedent indicating that, as to the executive functions of such a commission, its officers and employees have a right, and, when directed by the President, a duty to invoke the executive privilege.

The so-called fraud exception to executive privilege does not exist. The precedent for the so-called exception really evidences the unlimited discretion of the President to determine whether the public interest requires that the executive privilege be invoked or waived in a particular case.

1955
1955-August-15Constitutionality of a Joint Resolution Requiring the President to Propose a Balanced Budget Every Year

A proposed joint resolution requiring the President annually to propose a budget in which estimated expenditures do not exceed estimated receipts, if made effective, would be invalid.

1953
1953-March-25Authority of the Department of Justice to Represent Members of Congress in a Civil Suit

The Attorney General has authority to represent members of the House of Representatives in a state court civil lawsuit if he determines that it would be in the interest of the United States to do so.

The question whether the congressmen should be represented by the Department is wholly discretionary and should be determined as a matter of policy.

1953-January-27Authority of Florida Police Officers to Make Arrests on the Basis of FBI Pick-Up Notices

The authority of a Florida police officer to make a warrantless arrest for an alleged violation of federal law depends on state law and cannot be based merely on the existence of an FBI pick-up notice.

1952
1952-July-29Constitutionality of an Appropriations Bill Denying Funds for Certain Civil Litigation

Legislation directing that no funds be expended in the preparation or prosecution of a civil lawsuit by the United States against a state public utility district regarding riparian rights in a river owned by the federal government is not subject to serious constitutional objection.

1952-February-18Presidential Authority to Direct the Chairman of the Council of Economic Advisers Not to Comply With a Congressional Subpoena Seeking Testimony About Private Activities

Although there has been a practical construction, extending back to the earliest days of this Republic, of the respective powers of the Congress and the Executive, under which the President may order his subordinates in the Executive Branch to withhold information from the Congress when he deems such action to be in the public interest, it is difficult to justify application of this principle with respect to a congressional subpoena seeking an official’s testimony regarding his private activities prior to the time of his close official connection with the President.

1950
1950-October-01Presidential Authority to Make Recess Appointments While Incumbents Hold Over

The President may make recess appointments to the Interstate Commerce Commission and to the Board of Directors of the Reconstruction Finance Corporation while members of those entities continue to serve in office under holdover statutes.

1947
1947-October-16Presidential Authority to Call a Special Session of Congress

The President has the power, under Article II, Section 3 of the Constitution, to call a special session of the Congress during the current adjournment, in which the Congress now stands adjourned until January 2, 1948, unless in the meantime the President pro tempore of the Senate, the Speaker, and the majority leaders of both Houses jointly notify the members of both houses to reassemble.

1947-August-25Presidential Authority as Commander in Chief of the Air Force

The President is Commander in Chief of all the armed forces of the United States–the Air Force as well as the Army and the Navy.

1947-May-21Authority to Establish System of Universal Military Training

If Congress enacts legislation along the lines of either of two proposals for the establishment of a system of universal military training, supported by appropriate declarations of policy and findings of fact, such legislation would be well within the constitutional powers of the federal government.

1946
1946-July-01Presidential Appointment of Justice Robert Jackson to Prosecute Axis War Criminals in Europe

The President may appoint Justice Jackson as United States prosecutor of the Axis war criminals in Europe.

1945
1945-December-18Reinstatement of a Federal Judge Following His Service in the Army

The reemployment provisions of the Selective Training and Service Act of 1940 are likely inapplicable to a federal judge.

If the Selective Training and Service Act of 1940 does not run to the benefit of federal judges, Judge William Clark has vacated his judicial office, under the circumstances presented here.

If the Selective Training and Service Act of 1940 does apply, then Judge Clark’s resignation may be immaterial, and the prohibition in the Act of July 31, 1894 against holding a second office probably does not apply.

If Judge Clark’s further judicial services are desired, he should be given a new appointment, subject to Senate confirmation.

1945-February-05Implementation of International Civil Aviation Agreements

If a valid reciprocal arrangement has been entered into between the United States and a foreign country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign aircraft a permit to fly across the United States without landing or a permit to land for non-traffic purposes.

1943
1943-September-22Presidential Appointment of Foreign Agents Without the Consent of the Senate

There are many precedents to sustain the power of the President, without the advice and consent of the Senate, to appoint special agents or personal representatives for the purpose of conducting negotiations or investigations.

1942
1942-June-15Trials of Newspaper Personnel Accused of Disclosing Naval Secrets

It is probable that the newspaper personnel accused of violating the Espionage Act by disclosing naval secrets can each be tried in any district in which the newspaper containing the secrets was received by a subscriber or newsstand.

The newspaper personnel would be entitled to separate trials unless a conspiracy to violate the Espionage Act can be shown.

1942-June-15Criminal Liability for Newspaper Publication of Naval Secrets

A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part in an upcoming naval battle, and later submitted for publication a newspaper article with information from the dispatch, appears to have violated sections 1(b) and 1(d) of the Espionage Act, but it is doubtful he violated sections 1(a) and 2.

Whether the managing editor and publisher of the newspaper that published the article might also be criminally liable under the Espionage Act depends on their intent and knowledge of the facts.

1942-May-28Senatorial Courtesy

The custom known as “senatorial courtesy,” whereby certain nominations to federal office have been objected to by an individual senator on the ground that the person nominated is not acceptable to him, appears recently to have been limited to local offices of the federal government.

1942-May-15Removal of Japanese Aliens and Citizens From Hawaii to the United States

Japanese who are aliens can be brought to the continental United States from Hawaii and interned under the provisions of 50 U.S.C. § 21. This statute, however, is probably not applicable to the Japanese who are American citizens.

Although not free from doubt, an argument can be made for removing Japanese who are American citizens from Hawaii to a restricted zone in the United States on grounds of military necessity.

In view of the changed conditions of modern warfare, the Supreme Court would likely follow the views of the dissenting justices in Ex parte Milligan, sustaining a declaration of martial law in places outside the zone of active military operations upon a showing of military necessity for such action. From the nature and purpose of martial law, it would seem to be properly applicable to particular areas rather than to particular persons.

1941
1941-June-18Presidential Control of Wireless and Cable Information Leaving the United States

The President has authority under the Communications Act of 1934 to control any radio station so as to prevent the transmission from the United States of any message, or part thereof, inimical to the national security and foreign policy of the nation. Specific emergency powers like those granted over radio are not contained in the Communications Act, or elsewhere, with respect to cables. But should the President as Commander in Chief and under his other constitutional powers deem such action essential to the protection of the armed forces or the national security, or the protection of shipping, in a time of unlimited national emergency, he could exercise similar control through the Army or Navy over the transmission by cable of messages from the United States.

A great deal can be done by the President with respect to censorship of second, third, and fourth class mail; but in view of the protection which the existing statutes afford to sealed first class mail, the problem there is a difficult one, and it is still being studied.

1941-June-08Wiretapping by Members of the Naval Intelligence Service

In this letter, Attorney General Jackson advises the Secretary of the Navy not to approve and adopt the position taken by the Judge Advocate General of the Navy that records may legally be made of private communications sent or received by use of telephone facilities controlled by the Navy, with a view to the use of such records in prosecutions involving espionage, sabotage, and subversive activities.

1939
1939-May-31Jurisdiction and Procedure of the Office of the Assistant Solicitor General

This memorandum summarizes the authorities and internal operating rules for the Office of the Assistant Solicitor General, the predecessor entity within the Department of Justice to the Office of Legal Counsel. Although the litigation functions have largely been shifted to other components, many of the other practices and procedures described in this memorandum (in particular, preparation of opinions and review of executive orders) remain in place to the present day.

1939-March-01Presidential Authority to Order the Removal of the Original Engrossed Constitution From the Library of Congress

The custody of the original engrossed Constitution of the United States is now vested by statute in the Library of Congress, and no statute authorizes the President to interfere with that custody or to prescribe rules governing it. Therefore, an executive order authorizing the removal of the Constitution from the Library of Congress could neither compel such removal nor make it legal.

1938
1938-July-06Presidential Appearance as a Character Witness

Apparently there is no precedent for a President to appear as a character witness in a civil, criminal, or other kind of legal proceeding.

1937
1937-November-07The President’s Power in the Field of Foreign Relations

The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce.

The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion.

The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict.

1937-May-26Presidential Authority to Direct Departments and Agencies to Withhold Expenditures From Appropriations Made

Neither the Economy Act of 1933 nor any other statute authorizes the President to direct departments and agencies, either on a percentum basis or with reference to specific items, to withhold expenditures from appropriations made.

In the absence of legislative sanction, an executive order withholding expenditures from appropriations made would not be binding on the disbursing officers in the event that a department head or other authorized official should desire funds from the amount ordered to be withheld.

The President may request or direct the heads of the departments and agencies to attempt to effect such savings as may be possible without violation of a duty prescribed by law.

1937-February-07Censorship of Transmission of Trotzky Speech From Mexico

The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky.

1937-January-05Authority of the Federal Communications Commission to Deny a Broadcast License to a Newspaper Owner

The Federal Communications Commission does not have authority under the Communications Act of 1934 to refuse to grant broadcasting licenses on the ground that the ownership of the proposed facilities is in, or in common with, a newspaper.

It is doubtful that Congress has the power to broaden the Act to provide the FCC with such authority.

Such a provision would not violate the First Amendment clauses protecting the freedom of speech and of the press, but it would probably be held arbitrary and violative of the Fifth Amendment.

1936
1936-September-20Filling the Vacancy Following the Death of the Secretary of War

The performance of the duties of the Secretary of War by an acting secretary may not extend beyond thirty days from the date of the death of the late Secretary of War, and it will be necessary for a new Secretary of War to be appointed in accordance with the provisions of the Appointments Clause of the Constitution to perform those duties after that date.

There is some doubt whether the duties specifically imposed by Congress upon the Secretary of War may be performed by the President, as Commander in Chief of the Army, or by any other person not serving as the Secretary of War.

1935
1935-June-09Removal of the Assistant Secretary of Commerce by the Appointment of a Successor

The removal from office of the Assistant Secretary of Commerce can be properly effected merely by the appointment of a successor by the President with the advice and consent of the Senate.

1934
1934-September-24Legality of an Executive Order Requiring Executive Departments and Independent Establishments to Make Monthly Financial Reports

Although the regulations prescribed by the proposed executive order, requiring executive departments and independent establishments to provide the Secretary of the Treasury with monthly financial reports, are not expressly authorized by any statute, the President has authority to issue the order by virtue of his inherent power as Chief Executive.

1934-June-25Exercising the Pocket Veto

When the President wishes to disapprove a bill, and Congress’s adjournment has prevented the President’s return of the bill, the safer course for the President to exercise his power of disapproval is through a pocket veto, instead of endorsing the bill with the word “disapproved” and the President’s signature.

1934-May-08Constitutionality of Legislation to Confer Citizenship Upon Albert Einstein

Congress has the authority to enact a law granting citizenship to Albert Einstein.

1934-March-15Whether a Three-Day Recess by One Chamber of Congress Constitutes an Adjournment for Purposes of the Pocket Veto Clause

It is doubtful that a three-day recess by the Senate, with the House continuing in session, constitutes an adjournment by Congress that would “prevent [the] Return” of a bill that has been presented to the President under the Pocket Veto Clause of the Constitution.


Updated: April 2014