Opinions

Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death Penalty Act of 1996, and now codified as chapter 154 of title 28, U.S. Code, may be construed to permit the Attorney General to exercise his delegated authority to define the term “competent” within reasonable bounds and independent of the counsel competency standards a state itself establishes, and to apply that definition in determining whether to certify that a state is eligible for special procedures in federal habeas corpus proceedings involving review of state capital convictions.

If the Attorney General chooses to establish a federal minimum standard of counsel competency that state mechanisms must meet in order to qualify for certification, he should do so in a manner that still leaves the states some significant discretion in establishing and applying their own counsel competency standards.

These statutory provisions may reasonably be construed to permit the Attorney General to evaluate a state’s appointment mechanism—including the level of attorney compensation—to assess whether it is adequate for purposes of ensuring that the state mechanism will result in the appointment of competent counsel.

Section 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money.

Section 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal property (other than money), such as an automobile, so long as the property in question would be received for use directly in the anti-pollution research authorized by section 104.

The Emoluments Clause of the Constitution does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “King, Prince, or foreign State.”

The Foreign Gifts and Decorations Act does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “unit of a foreign governmental authority,” an “international or multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.”

Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in 18 U.S.C. § 924(c)(1)(B)(i) applies.

Section 163 of division B (“Continuing Appropriations Resolution, 2010”) of Public Law 111-68 does not direct or authorize the Department of Housing and Urban Development to breach a pre-existing binding contractual obligation to make payments to the Association of Community Organizations for Reform Now or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.

The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President’s will.

The Administration’s proposal for mandatory registration of credit rating agencies—which would exempt an agency if (1) it does not provide ratings of securities in exchange for fees or other forms of compensation from the securities’ issuers; and (2) it issues credit ratings only in any bona fide newspaper, news magazine or business or financial publication of general and regular circulation—would comply with the First Amendment.

The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as Inspector General for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008.

The former Federal Housing Finance Board Inspector General cannot appoint employees to the Office of Inspector General for the Federal Housing Finance Agency.

Although the meaning of the word “Review” in section 7 of Executive Order 13492 is not unambiguous, that section is best construed in light of the Order’s text and purposes in a manner that treats a review as pending as to a detainee at the Guantánamo Bay Naval Base when the detainee’s case has been referred to but not finally resolved by the process under the formal protocol that the Departments of Defense and Justice have agreed upon and promulgated for further disposition of the case.

The Small Business Administration’s regulations governing the interplay among the Historically Underutilized Business Zone Program, the 8(a) Business Development Program, and the Service-Disabled Veteran-Owned Small Business Concern Program constitute a permissible construction of the Small Business Act.

The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration’s regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns.

The Office of Legal Counsel’s conclusion that the Small Business Administration’s regulations are reasonable is binding on all Executive Branch agencies.