Opinions
Executive Branch Participation in the Cyberspace Solarium Commission
In our tripartite constitutional structure, any commission performing federal functions must reside within a single one of the three branches of government.
The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity, because congressional appointees compose the majority of the Commission’s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission’s ultimate mission is to advise Congress.
The Executive Branch officials serving on the Commission should act with one unified voice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission.
Reimbursing the Attorney’s Fees of Current and Former Federal Employees Interviewed as Witnesses in the Mueller Investigation
The Department of Justice Representation Guidelines authorize, on a case-by-case basis, the reimbursement of attorney’s fees incurred by a current or former federal government employee interviewed as a witness in the Mueller Investigation under threat of subpoena about information the person acquired in the course of his government duties.
Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty
In establishing a mandatory waiting period for withdrawing from a treaty, section 1234(a) of the National Defense Authorization Act for Fiscal Year 2020 unconstitutionally interferes with the President’s exclusive authority to execute treaties and to conduct diplomacy.
Exclusion of Religiously Affiliated Schools from Charter-School Grant Program
A provision of the Elementary and Secondary Education Act of 1965 that excludes religiously affiliated charter schools from participating in the Expanding Opportunity Through Quality Charter Schools Program discriminates on the basis of religious status in violation of the Free Exercise Clause.
Applicability of Section 410 of the Amtrak Reform and Accountability Act of 1997 to the Gateway Development Commission
New Jersey’s proposed diversion of a portion of its annual payment to Amtrak to a bridge project subject to the authority of the Gateway Development Commission, an interstate entity established by New York and New Jersey, would violate section 410 of the Amtrak Reform and Accountability Act of 1997, which prohibits States from carrying out an interstate compact by using state or federal funds made available for Amtrak.
House Committees’ Authority to Investigate for Impeachment
The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s power of impeachment.
The House had not authorized an impeachment investigation in connection with impeachment-related subpoenas issued by House committees before October 31, 2019, and the subpoenas therefore had no compulsory effect.
The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal status of those subpoenas, because the resolution did not ratify or otherwise address their terms.
Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security
The President may direct the Secretary of Commerce not to publish a confidential report to the President under section 232 of the Trade Expansion Act of 1962, notwithstanding a recently enacted statute requiring publication within 30 days, because the report falls within the scope of executive privilege and its disclosure would risk impairing ongoing diplomatic efforts to address a national-security threat and would risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat.
Ratification of the Equal Rights Amendment
Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.
Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.