Opinions
Contacts Between the Office of Management and Budget and Executive Agencies Under Executive Order No. 12,291
Agencies are not precluded from receiving, in the context of informal rulemaking, views or information outside the usual channels for public comment, notwithstanding the ex parte contacts doctrine developed in the D.C. Circuit, and the Office of Management and Budget (OMB) is under no duty to refrain from communicating with rulemaking agencies pursuant to its implementation of Executive Order No. 12,291.
The Administrative Procedure Act’s provisions for judicial review and public participation in informal rulemaking may be construed to imply an agency obligation to disclose communications from outside the agency, including communications which occur after the publication of proposed rulemaking. Therefore, in order to reduce the danger of reversal, such communication should be included in the administrative file and the record for judicial review, at least to the extent that they are factual as opposed to deliberative in nature.
A rulemaking agency need not disclose substantive communications from OMB or other federal agencies which form part of its deliberative process; however, the deliberative process does not extend to the legal or policy views of persons outside of executive or independent agencies, even when they are transmitted by an agency acting as a conduit for the third party.
The Attorney General’s Duty to Defend the Constitutionality of Statutes
The Department of Justice has a duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General concludes that the argument may ultimately be unsuccessful in the courts. The statute at issue in the instant case could be held constitutional as applied in certain situations, and accordingly the Department will defend it.
Presidential Succession and Delegation in Case of Disability
The following memorandum discusses issues relating to presidential succession and delegation of presidential power in the event of a temporary disability of the President. It examines the mechanism established by the Twenty-Fifth Amendment by which the Vice President assumes the powers and duties of the Office of the President, and the conditions under which the President resumes his Office after his disability is ended. It also examines the circumstances in which the President may delegate his powers to other officials, including the Vice President, when it is not considered necessary or appropriate to invoke the provisions of the Twenty-Fifth Amendment. It concludes that functions vested in the President by the Constitution are generally not delegable and must be performed by him; however, any power vested in the President by statute may be delegated to subordinate officers, unless the statute affirmatively prohibits such delegation. Finally, the memorandum briefly reviews the form and method of delegation. An appendix contains a historical summary of prior presidential disabilities and the resulting effect on presidential authority.
Constitutionality of Allowing Punishment of Misdemeanor by a Sentence Exceeding One Year
The Fifth Amendment to the Constitution requires that offenses punishable by imprisonment for more than one year be prosecuted by an indictment presented to a grand jury.
Proposed amendments to the Lacey Act, by which misdemeanor violations of the Act could result in up to five years’ imprisonment if the defendant were designated a “special offender,” must be construed to require prosecution by indictment in all cases.
Application of the Federal Water Pollution Control Act to the Former Panama Canal Zone
The Panama Canal Treaty and its implementing legislation make U.S. laws based on territorial jurisdiction, including the Federal Water Pollution Control Act, inapplicable to the former Panama Canal Zone. Both the Treaty negotiators and Congress expected environmental problems in the former Canal Zone to be dealt with jointly by the United States and Panama through the Joint Commission on the Environment.
Jurisdiction of the Office of Special Counsel, Merit Systems Protection Board, Under 5 U.S.C. §§ 1206(b)(2) and (7)
The Office of Special Counsel, Merit Systems Protection Board, has no authority under 5 U.S.C. §§ 1206(b)(2) and (7), to require another agency to submit a report concerning allegations of misconduct not made by a federal employee or an applicant for federal employment.
Government Attorneys’ Participation as Plaintiffs in a Suit Against the Office of Personnel Management
Assistant United States Attorneys (AUSAs) are not barred by 18 U.S.C. § 205 from participating as plaintiffs in a class action suit challenging the authority of the Office of Personnel Management (OPM) to reduce the cost of living allowance paid to all federal employees in Alaska, though they may not accept any compensation for assisting in prosecuting the claims of the class or act as agents or attorneys for the class.
The AUSA’s duty of loyalty to a client under applicable standards of professional conduct does not preclude his joining a suit against OPM, but he should avoid taking an active or notorious role in the litigation.
Use of Technical Advisers by Board of Contract Appeals
A governmental decisionmaking body, including an agency board of contract appeals, may employ technical advisers to analyze and make recommendations on the technical aspects of evidence. Where a decisionmaker properly uses technical advisers, their reports and recommendations need not be disclosed to the parties to the proceedings; however, where the advice of technical advisers adds new facts to the record or constitutes evidence in itself, a court may require that it be disclosed.
Proposed Executive Order Entitled “Federal Regulation”
The following memorandum, prepared by the Office of Legal Counsel pursuant to its responsibility under Executive Order No. 11,030 for approving all executive orders and presidential proclamations for form and legality, analyzes the provisions of a proposed executive order imposing certain procedural and substantive requirements on executive agencies in connection with their rulemaking functions. It concludes that the order’s provisions for presidential oversight of the administrative process are generally within the President’s constitutional authority, and that they do not displace functions vested by law in particular agencies. It also concludes that the order’s requirement that agencies reconsider final rules which have not yet become effective may in certain circumstances trigger the notice and comment provisions of the Administrative Procedure Act.
Whether the Agreement with Iran Can Be Treated as Void in Part
Even assuming the agreement with Iran could be regarded as void in its entirety because of the threat or use of coercion in its procurement, under international law the United States may not choose to honor some of its provisions and not others.