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Opinions by Date and Title
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1974
1974-November-27

FOIA Appeal from Denial of Access to FBI COINTELPRO Files Regarding Professor Morris Starsky

As a matter of administrative discretion, the Department of Justice should grant the FOIA request of an attorney for the FBI’s COINTELPRO-New Left files regarding his client, a professor at Arizona State University and an active member of the Socialist Workers Party.

FOIA Exemption (7) is technically applicable to the withheld documents. However, like all of the exemptions, Exemption (7) is only discretionary, and should not be asserted unless such action is in the public interest. Assertion of the exemption is not recommended for these documents.

1974-December-01

Constitutionality of the Federal Advisory Committee Act

Without reaching definitive conclusions, this memorandum considers three constitutional questions raised by the Federal Advisory Committee Act.

First, is it within Congress’s constitutional powers to regulate advisory committees in general and presidential advisory committees in particular?

Second, even if Congress can regulate advisory committees, may it regulate those committees giving advice to the President without violating the separation of powers?

Third, even if Congress may regulate those committees giving advice to the President, may the President except certain committees from certain regulations because of executive privilege?

1975
1975-December-31

Constitutionality of Bill Establishing American Folklife Center in the Library of Congress

A bill creating an American Folklife Center in the Library of Congress would violate the separation of powers by vesting the Librarian of Congress, a congressional officer, with executive functions.

The bill would also violate the Appointments Clause by permitting certain members of the Board of Directors of the American Folklife Center to be appointed by members of Congress, the Board of Directors of the Smithsonian Institution, and the Librarian of Congress.

1976
1976-February-13

Constitutionality of Bill Creating an Office of Congressional Legal Counsel

Congressional officers representing the combined power of both houses of Congress—in contrast to officers of either house—who perform significant governmental duties must be appointed as provided in the Appointments Clause of the Constitution.

The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in accordance with the Constitution and laws of the United States is an exclusive executive function that must be exercised by an executive officer who must be appointed as provided for in the Appointments Clause and be subject to the President’s unlimited removal power.

1976-August-05

Appointment of a Federal Judge to the United Nations Delegation

If this were a matter of first impression, appointing a federal judge to be a representative of the United States to the General Assembly of the United Nations would be inconsistent with the constitutional doctrines of separation of powers and independence of the judiciary. However, because of the longstanding practice of appointing federal judges to temporary office in the Executive Branch, and the absence of any explicit constitutional text, it cannot be maintained that such an appointment would be unconstitutional.

1976-September-01

Constitutionality of Regulatory Reform Legislation for Independent Agencies

Although there is no constitutional impediment to the bill’s requirement that independent regulatory agencies communicate their legislative and budgetary messages directly to the Congress without first clearing them with OMB, a uniform rule in the opposite extreme—i.e., that no communication from an independent agency may be sent to OMB unless it is simultaneously sent to the Congress—would not adequately protect important interests of the Executive Branch. The congressional access provisions of the bill would not affect the power of the President, or the agency acting on the President’s behalf, to assert executive privilege, because in the absence of express language in the bill, it must be assumed that the bill does not constitute an attempted infringement of the constitutionally based privilege, which is available with respect to those functions of independent regulatory agencies that are of an executive or quasi-executive nature.

1977
1977-January-26

Provision of Military Aircraft and Hospital Corpsman to Former President Ford

Presidential Transition Act (3 U.S.C. § 102 note)—Provision of Military Aircraft and Hospital Corpsman to a Former President (31 U.S.C. § 638)

1977-January-27

Membership of White House Staff Member on Democratic National Committee

Hatch Act (5 U.S.C. § 7324)—Membership of White House Staff Member on Democratic National Committee

1977-January-27

Acceptance of Voluntary Service in the White House

The White House Office—Acceptance of Voluntary Service (31 U.S.C. § 665(b))

1977-January-27

Legality of a Certain Proposed Composition of a Multiemployer Pension Fund Board of Trustees

Legality of a Certain Proposed Composition of a Multiemployer Pension Fund Board of Trustees


Updated: April 2014