Ex Parte Communications During FCC Rulemaking
Ex parte communications by White House officials to Federal Communications Commission commissioners that advocate positions on the FCC rulemaking proceeding to evaluate financial interest and syndication rules would be permissible.
According to FCC regulations, as interpreted by the FCC General Counsel, communications by the White House must be disclosed in the FCC rulemaking record if they are of substantial significance and clearly intended to affect the ultimate decision.
Although solicitation of the views of White House officials by FCC commissioners would be permissible and need not be included in the rulemaking record, any response by White House officials to such a solicitation would be subject to the same disclosure requirements that apply to unsolicited communications.
Appointment of Members of the Board of Directors of the Commission on National and Community Service
The unconstitutional restrictions on the President’s appointment power contained in the National and Community Service Act of 1990 are severable from the remainder of the Act.
With one exception, the programs established under title I of the Act may not be implemented before the President has appointed members of the Board of Directors of the Commission on National and Community Service.
There is no statutory prohibition against officers currently holding other advice-and-consent positions serving on the Board, so long as the person receives only one salary, the positions are not “incompatible” from the standpoint of public policy, and there is no augmentation of relevant appropriations.
Constitutionality of Subsection 4117(b) of Enrolled Bill H.R. 5835, the “Omnibus Budget Reconciliation Act of 1990”
The conditions imposed on action by the Secretary of Health and Human Services by subsection 4117(b) of the Omnibus Budget Reconciliation Act of 1990 violate either the Appointments Clause or the bicameralism and presentment requirements of the Constitution. The subsection is also unconstitutional insofar as it attempts to confer federal lawmaking power on State organizations.
In the event that the President signs the bill into law, he may direct that the unconstitutional conditions imposed by subsection 4117(b) be given no legal force or effect.
White House Communications Agency Expenses Incurred on Political or Personal Travel by the President
When the White House Communications Agency accompanies the President on travel, it may (and should) use appropriated funds to pay for any expense incurred for activities in furtherance of its official mission to provide a continuous communications capability to the President and his advisors, regardless of whether the travel is for official, political, or personal purposes.
The White House Communications Agency may use appropriated funds to pay for expenses incurred in connection with the provision of communications facilities and services for the official use of the President and his staff during Presidential travel.
Appropriated funds may be expended to facilitate official, but not political, communication between the President and the press.
Attorney General’s Authority with Respect to the Regulatory Initiatives of the U.S. Parole Commission
The Attorney General has the authority to require the United States Parole Commission, a component of the Department of Justice for administrative purposes, to participate in Department-wide regulatory coordination that does not entail substantive control of the Commission’s regulatory initiatives. The Attorney General thus may require the Commission to submit any proposed regulations to the Office of Management and Budget’s Office of Information and Regulatory Affairs through the Department’s Office of Policy Development and may also require the Commission to keep OPD informed of any regulatory initiatives under consideration.
The Commission’s statutory status as an “independent agency” within the Department precludes the Attorney General as a general matter from asserting substantive control over the Commission’s policymaking, including its issuance of regulations. Accordingly, the Attorney General may not require the Commission to obtain OPD approval of its proposed regulations.
Reimbursing Justice Department Employees for Fees Incurred in Using Private Counsel Representation at Congressional Depositions
The Department of Justice may reimburse its employees for legal fees they incur in using private counsel representation at congressional depositions in circumstances where the Department was planning to provide Department counsel for official capacity testimony but the congressional committee refused to permit Department counsel to be present.
The Department should make individualized inquiries to determine whether the representation of particular employees includes representation of purely personal interests that should not be reimbursed.
Employment Status of the Members of the Board of
Directors of the Federal Housing Finance Board
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which created the Federal Housing Finance Board, permits the members of the Board of Directors of the FHFB to serve on a part-time basis.
Applicability of Conflict of Interest Laws to Current and Former Executive Branch Employees Serving as Trustees in Bankruptcy Cases
Sections 203 and 205 of title 18 do not prohibit current executive branch employees from serving as bankruptcy trustees, if the United States is not a party to and lacks a “direct and substantial interest” in the particular bankruptcy proceeding. Otherwise, the sections bar current employees, except for United States Trustees and their employees, from serving as trustees in bankruptcy.
Subsections (a) and (b) of 18 U.S.C. § 207 do not prohibit former executive branch employees from serving as trustees, if the United States is not a party to and does not have a “direct and substantial interest” in the particular bankruptcy proceeding. Where the United States has such an interest, the subsections would prohibit a former executive branch employee from serving as a trustee in matters with respect to which he participated, or which fell under his supervision, while he was in governmentservice.
The narrow class of former high-level executive officials covered by 18 U.S.C. § 207(c) may not serve as trustees where the matter involved is one pending before the official’s former agency or is one in which that agency has a “direct and substantial interest.”
Lease or Loan of Aircraft to Foreign Countries for Assistance in International Narcotics Control Under Subsection 506(a)(2) of the Foreign Assistance Act of 1961
The federal government may lease or loan Department of Defense aircraft to foreign countries to assist in international narcotics control under the authority of subsection 506(a)(2) of the Foreign Assistance Act of 1961.
Authority of the General Services Board of Contract Appeals to Order Reimbursement of the Permanent Judgment Fund for Awards of Bid Protest Costs
The General Services Board of Contract Appeals does not have the authority to order the Department of the Army to reimburse the permanent indefinite judgment fund for a Board award of bid protest costs under the Competition in Contracting Act.