Opinions

The President may approve a bill after the sine die adjournment of Congress. If he wishes to disapprove legislation, the correct procedure is simply inaction, which results in a pocket veto. While a formal veto message is inappropriate, the President may express his disapproval through a memorandum of disapproval.

The Attorney General has broad discretion in administering the Witness Protection Program established under Title V of the Organized Crime Control Act of 1970, and his decisions in this connection are not subject to judicial review under the statute.

Two proposed changes in the administration of the Program, dealing with the settlement of existing debts by persons entering the Program and with the custody of children brought into the Program, are generally within the Attorney General’s authority. However, certain modifications should be made to protect fully the due process nghts of persons entitled to litigate or enforce custody and visitation rights against a participant in the Ptogram. Whether the proposed changes provide constitutionally adequate protection for either creditors unable to satisfy their claims because of the government’s refusal to disclose the identity of persons in the Program, or for persons within the Program whose identity is disclosed to creditors, may depend on the facts of each case.

The proposed changes would not subject the government to liability under the Federal Tort Claims Act, because they come within an exception to the waiver of sovereign immunity in that Act. Nor would they subject the government to liability for contract damages under the Tucker Act.

While congressional committees’ subpoenas are no longer effective after Congress’ adjournment sine die, the Administrator of the Environmental Protection Agency should, in the interest of comity and accommodation to the Legislative Branch, continue to be as responsive as possible to those committees’ requests for documents and other information.

The Administrator’s obligations under one of the subpoenas may be construed in light of the subcommittee chairman’s subsequent modification on the record of its terms. Compliance with the subpoena as so modified cannot form the basis of the “willful default” that is necessary for prosecution under the relevant criminal contempt statutes, 2 U.S.C. §§ 192, 194.

A congressional subpoena lacks present force and effect after the adjournment sine die of a Congress, and it therefore imposes no continuing duty to comply with its directives; similarly, it will not support the continued exercise by Congress of the power to punish for contempt.

Judicial construction of the procedure by which a congressional committee’s contempt citation is certified for prosecution under 2 U.S.C. § 192 indicates that it would require action by the whole House and not simply the Speaker if the contempt occurs while Congress is in session. Accordingly, if the contempt in this case were not reported to the House while it was still in session, or if the House failed to act on the resolution, the citation would die upon Congress’ adjournment and be of no further force and effect.

If a successor committee in the subsequent Congress brought a civil action to enforce the prior committee’s subpoena, its success might depend upon whether the court viewed the prior subpoena and refusal to comply as a historical fact whose validity could not now be adjudicated. This rationale would support an action for declaratory relief, but not one for injunctive relief.

The following two memoranda, prepared by the Office of Legal Counsel at the request of the Attorney General, describe instances since the founding of the Republic in which officials in the Executive Branch have refused to disclose information or produce documents requested by Congress. The first memorandum, dated December 14, 1982, sets forth examples of situations in which a President has personally directed that information be withheld, relying on the doctrine of executive privilege. The second memorandum, dated January 27, 1983, documents incidents where the Attorney General or some other executive official refused to provide information or documents to Congress in situations involving law enforcement, security, or personnel investigations. . . .

The Veterans Administration (VA) has discretion to determine on a case-by-case basis whether VA beneficiaries should be reimbursed for transportation costs incurred in connection with their receipt of VA medical care, and is not required to do so in all cases.

The permissive statutory term “may,” used to describe the VA’s administrative authority to reimburse transportation costs, should be interpreted in light of its plain meaning unless the legislative history reveals that such an interpretation would lead to absurd results, or consequences obviously at variance with the policy of the statute as a whole. The legislative history of the Veterans’ Benefit Act of 1957 and its predecessor statutes is ambiguous with respect to Congress’ intent in using the word “may” in the 1957 Act, and is thus not sufficiently compelling to contradict the plain language of the statute.

Notwithstanding the VA’s consistent interpretation of the relevant provisions since 1957 to mandate travel reimbursement, legislative ratification of this administrative interpretation in subsequent amendments to the statute will not be found in the absence of clear and unambiguous congressional acceptance of the VA’s position.

The proposed cooperative agreement between the Secretary of the Interior and the Archbishop of San Antonio, for the administration of church-owned properties within the San Antonio Missions National Historical Park, does not on its face present such a risk of advancing religion or involving the government in an entangling relationship with the church, in violation of the Establishment Clause of the First Amendment, that it may not be executed.

Any federal funds to be expended under the agreement would not relieve the church of any obligation it would otherwise have, or confer any recognizable benefit on the church, and thus could not be said to “advance” religion within the meaning of the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). Nor is the extent of the federal presence at the Missions contemplated by the proposed agreement likely to confer any imprimatur of government approval on a religious sect or practice, or commit the government to religious goals.

It is the policy of the Executive Branch to decline to provide committees of Congress with access to or copies of law enforcement files, or materials in investigative files whose disclosure might adversely affect a pending enforcement action, overall enforcement policy, or the rights of individuals.

Congressional assurance of confidentiality cannot overcome concern over the integrity of law enforcement files, not only because of concern over potential public distribution of the documents by Congress, but because of the importance of preventing direct congressional influence on investigations in progress.

It is the constitutional responsibility of the Executive to determine whether and when materials in law enforcement files may be distributed publicly, and this responsibility cannot and will not be delegated to Congress.

The principle of executive privilege will not be invoked to shield documents which contain evidence of cnminal or unethical conduct by agency officials, and the documents at issue here have been made available for inspection by congressional staff members to confirm their proper characterization in this regard.

The Disaster Relief Act authorizes the provision of federal aid to state and local governments in the event of an emergency or major disaster, whether resulting from natural or man-made causes. Whether a particular “immigration emergency” so threatens property or human life as to fall within the scope of the Act is a matter for the President in his discretion to determine.

The following two memoranda examine historical practice and judicial precedent under the Pocket Veto Clause of the Constitution, Art. I, § 7, cl. 2, in order to advise the President concerning the efficacy of a pocket veto during both intrasession and intersession adjournments of Congress.