Opinions
Procedures for Exchanging Instruments of Ratification for Bilateral Law Enforcement Treaties
As long as the Attorney General is duly authorized by the President—or his delegate in the field of foreign affairs, the Secretary of State—there is no legal barrier to the Attorney General witnessing or signing a Protocol of Exchange of Ratifications on behalf of the United States. In addition, there is no legal barrier to the exchange of instruments of ratification occurring at the Department of Justice.
Authority of the Equal Employment Opportunity Commission to Conduct Defensive Litigation
In general, the Attorney General has plenary authority over the supervision and conduct of litigation to which the United States is a party. Courts have narrowly construed statutory grants of litigation authority to agencies to permit such power only when the authorizing statutes are sufficiently clear and specific to ensure that Congress intended an exception to the general rule.
The litigation authority of the Equal Employment Opportunity Commission is limited to that which is specifically provided by statute, namely, enforcement actions brought against private sector employers. 42 U.S.C. §§ 2000e-4(b), 2000e-5, 2000e-6. Accordingly, the Commission may not independently defend suits brought against it in connection with its federal sector administrative and enforcement and adjudicative functions, or actions brought against it by its own employees challenging Commission personnel decisions. Such suits are to be handled by attorneys under the supervision of the Attorney General.
Gifts Received on Official Travel
Gifts given to United States employees by a Japanese government agency may be retained consistent with 5 U.S.C. § 7342 and implementing regulations if the items are worth less than $140. More valuable gifts must be deposited with the employing agency.
Gifts from private Japanese organizations are governed by 19 U.S.C. § 209(a). That statute, as consistently construed by the Department of Justice, makes it a crime to receive items of any value given as additional compensation for performing government service. The gifts from private Japanese organizations appear to have been given as a result of the federal employee’s official duties, and may not be accepted under § 209(a), and pursuant to the statute, must be returned to their donors.
In addition, Department of Justice conflict-of-interest regulations would independently prohibit acceptance of these gifts if the donors have litigation or financial business with the Department.
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege
As a matter of statutory construction and separation of powers analysis, a United States Attorney is not required to refer a congressional contempt citation to a grand jury or otherwise to prosecute an Executive Branch official who carries out the President's instruction to invoke the President’s claim of executive privilege before a committee of Congress.
Indemnification Agreements and the Anti-Deficiency Act
In order to comply with the Anti-Deficiency Act, 31 U.S.C. § 1341, indemnification agreements with government contractors, if otherwise authorized, must include a limitation on the amount of liability and must state both that the liability is further limited to the amount of appropriated funds available at the time payment must be made, and that the contracting agency implies no promise that Congress will appropriate additional funds to meet any deficiency in the event of loss.
A government agency may not indemnify its contractors for claims brought against them by reason of their own negligence. Nor may the United States agree in advance to assume liability for the negligence of its employees for which it may not otherwise be responsible under the Federal Tort Claims Act.
Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125
The Secretary of Defense retains authority under 10 U.S.C. § 125 to effect reorganizations of all functions of the Department of Defense, notwithstanding the Supreme Court’s decision in INS v. Chadha invalidating the legislative veto. An analysis of the legislative history of 10 U.S.C. § 125 with respect to the presumptions in favor of severability indicates that the unconstitutional veto provisions in that statute, which permitted either House of Congress to reject a proposed reorganization involving a “major combatant function” that would “tend to impair the defense of the United States,” as determined by its Armed Services Committee, are severable from the delegation of authority to the Secretary. However, the Secretary must continue to report all reorganization plans to Congress and wait thirty days before taking action.
Application of the Neutrality Act to Official Government Activities
Section 5 of the Neutrality Act, 18 U.S.C. § 960, forbids preparation for, or participation in, military expeditions against a foreign state with which the United States is at peace. This provision is intended solely to prohibit persons acting in a private capacity from taking actions that might interfere with the foreign policy and relations of the United States. It does not proscribe activities conducted by Government officials acting within the course and scope of their duties as officers of the United States.
Proposed Legislation to Restrict the Sales of Alcoholic Beverages in Interstate Commerce
Proposed legislation to prohibit the sale in interstate commerce of alcohol to persons under the age of 21 is a valid exercise of Congress’ power under the Commerce Clause and consistent with the Twenty-First Amendment. The Twenty-First Amendment permits states to enact legislation more restrictive than would otherwise be permissible under the Commerce Clause; however, it does not deprive the federal government of any authority over alcohol under the Commerce Clause.
The proposed legislation would not be “in violation” of more permissive state laws. Even if it were read to be “in violation” of such laws, a court would likely find that the federal interest in preventing damage to national commerce outweighed any particular state’s interest in permitting access to liquor for persons under age 21.
Constitutionality of Proposed Regulations of Joint Committee on Printing
Proposed regulations issued by the Joint Committee on Printing, which purport to regulate a broad array of printing activities of the Executive Branch, are not authorized by statute.
The proposed regulations are unconstitutional on two grounds. First, because members of the Joint Committee on Printing are not appointed in accordance with the Appointments Clause, art. II, § 2, cl. 2 of the Constitution, they may not perform Executive functions, such as rulemaking, which may be performed only by properly appointed Officers of the United States. Second, the delegation of legislative power to the Joint Committee on Printing violates the constitutional requirements for legislative action, bicameral passage and presentment to the President.
Acting Attorneys General
From 1870 until 1953, the Solicitor General served as Acting Attorney General in the event that the office of Attorney General was vacant or the Attorney General was absent or disabled. This plan of succession was modified by Reorganization Plan No. 4 of 1953 and by the codification in 1977 at 28 U.S.C. § 508 providing for the following statutory succession: Deputy Attorney General, Associate Attorney General, and in such order as the Attorney General shall designate, the Solicitor General and the Assistant Attorneys General.