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Opinions by Date and Title
Date Sorted DescendingTitleHeadnotes
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.

Updated: April 2014