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Applicability of EEOC Proposed Final Rule to the Department of Veterans Affairs

The 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.


Assertion 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.


Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory Committees

Representative 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.


Office of Personnel Management Petitions for Reconsideration of Non-Precedential Merit Systems Protection Board Decisions

The 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of the Office of Personnel Management is authorized to petition the Merit Systems Protection Board to reconsider a non-precedential decision of the Board only if the Director concludes that such decision has a substantial impact on a civil service law, rule, regulation, or policy directive.


Restrictions on Travel by Voice of America Correspondents

The 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.


Internal Revenue Service Document Request to Department of Defense

The 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.


Eligibility of a Dual United States Citizen for a Paid Position With the Department of Justice

Section 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.


Inapplicability of the Federal Vacancies Reform Act’s Reporting Requirements When PAS Officers Serve Under Statutory Holdover Provisions

There 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. Therefore, the holdover service is not reportable under the Act.


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 of preserving the authority of the states could frustrate the intentions of Congress and rulemaking agencies and should not be enacted.


Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion

The 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.

Updated: April 2014