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Opinions by Date and Title
Date Sorted AscendingTitleHeadnotes
1969
1969-November-30Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools

Public Law 81-874 does not provide statutory authority for the Commissioner of Education in the exercise of his discretion to avoid applying the full sum appropriated to the entitlements of local educational agencies for financial assistance to federally impacted schools.

The President does not have the constitutional authority to direct the Commissioner of Education or the Bureau of the Budget to impound or otherwise prevent the expenditure of funds appropriated by Congress to carry out the legislation for financial assistance to federally impacted schools, Public Law 81-874.

1970
1970-January-14Effect of a Repeal of the Tonkin Gulf Resolution

Because the President’s inherent constitutional authority to employ military force abroad depends to a very considerable extent on the circumstances of the case, and, in particular, the extent to which such use of force is deemed essential for the preservation of American lives and property or the protection of American security interests, it is impossible to state in concrete terms the legal effect of a repeal of the Tonkin Gulf Resolution.

Such a repeal standing alone would not only throw into question the legal basis for certain actions the President might deem it desirable to take in the national interest, but would also demonstrate to foreign powers lack of firm national support for the carrying out of the policies set forth in the joint resolutions.

1970-May-13Presidential Authority to Permit Incursion Into Communist Sanctuaries in the Cambodia-Vietnam Border Area

Congress has clearly affirmed the President’s authority to take all necessary measures to protect U.S. troops in Southeast Asia. Having determined that the incursion into the Cambodia-Vietnam border area is such a necessary measure, the President has clear authority to order it.

The President’s action with respect to the Cambodian border area, limited in time and in geography, is consistent with the purposes which the Executive and the Congress have pursued since 1964. Whatever theoretical arguments might be raised with respect to the authority of the Commander in Chief to act alone had there been no congressional sanction for our involvement in Southeast Asia, there is no doubt as to the constitutionality of the action in light of the prior affirmance of Congress that the Commander in Chief take all necessary measures to protect U.S. forces in Vietnam. Having determined the necessity, the Commander in Chief has the constitutional authority to act.

1970-May-21The President and the War Power: South Vietnam and the Cambodian Sanctuaries

Recognizing congressional sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even though it was not in name or by its terms a formal declaration of war, the President’s determination to authorize incursion into the Cambodian border area by United States forces in order to destroy sanctuaries utilized by the enemy is the sort of tactical decision traditionally confided to the Commander in Chief in the conduct of armed conflict.

Only if the constitutional designation of the President as Commander in Chief conferred no substantive authority whatever could it be said that prior congressional authorization for such a tactical decision was required. Since even those authorities least inclined to a broad construction of the executive power concede that the Commander in Chief provision does confer substantive authority over the manner in which hostilities are conducted, the President’s decision to invade and destroy the border sanctuaries in Cambodia was authorized under even a narrow reading of his power as Commander in Chief.

1970-June-01Constitutionality of the McGovern-Hatfield Amendment

Although it is difficult to resolve with confidence the substantial arguments that can be made for and against a proposed amendment seeking to employ Congress’s power of the purse to end hostilities in Vietnam, the Administration should oppose the amendment as a matter of policy, if not as one of constitutional law.

1971
1971-May-28Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent Impairment of Government Functions

The President has inherent constitutional authority to use federal troops to ensure that Mayday Movement demonstrations do not prevent federal employees from getting to their posts and carrying out their assigned government functions.

This use of troops is not prohibited by the Posse Comitatus Act.

1972
1972-June-11Implementation of Standstill Agreement Pending Approval of ABM Treaty and ICBM Interim Agreement

The Standstill Agreement, made by the President with the Soviet Union pending congressional approval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the Arms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.

The President is not precluded by contract law or authorization and appropriations legislation passed by Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the arms control agreements pending their coming into force.

The President is not precluded by contract law or authorization and appropriations legislation passed by Congress from directing the appropriate Executive Branch agencies to abide by the provisions of the arms control agreements pending their coming into force.

1972-November-19Presidential Authority to Require the Resignations of Members of the Civil Rights Commission

Members of the Civil Rights Commission serve at the pleasure of the President. The President may therefore require their resignations.

1973
1973-March-22Constitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy

Congress may establish jurisdiction in United States courts over individuals who commit the offense of hijacking outside the territorial jurisdiction of the United States.

In most cases, state and local law enforcement officers would be authorized to make arrests for violations of the proposed aircraft piracy legislation, either because hijacking airplanes would also violate state law, or because federal law permits federal enforcement officers to delegate arrest authority to state and local law enforcement officers and state law permits state and local law enforcement officers to accept delegated arrest authority.

1974
1974-August-04Presidential or Legislative Pardon of the President

Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.

If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.

Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.


Updated: April 2014