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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.

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.

1956
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.

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.

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.

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.

1961
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.

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-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-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.


Updated: April 2014