|1994-November-07||Application 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-07||Congressional 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-01||Presidential Authority to Decline to Execute Unconstitutional Statutes||This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.|
|1994-October-07||Availability of Money Damages Under the Religious Freedom Restoration Act||Section 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-07||The Twenty-Second Decennial Census||Neither 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-27||Deployment 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-28||Mutual Consent Provisions in the Guam Commonwealth Legislation||Sections 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-15||Constitutionality of Legislation Extending the Terms of Office of United States Parole Commissioners||Because 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-14||United States Assistance to Countries That Shoot Down Civil Aircraft Involved in Drug Trafficking||The 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-08||Review of 1988 Opinion Concerning the Applicability of Section 504 of the Rehabilitation Act to Individuals Infected With HIV||The 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. |