Opinions
Constitutional Issues Raised by Inter-American Convention on International Commercial Arbitration
Proposed legislation giving Inter-American Commercial Arbitration Commission (IACAC) power to amend rules which have been enacted by Congress would result in an improper delegation of legislative power to a private organization, and any amended rule could not constitutionally be applied to agreements entered into after the effective date of the amendments.
Provision in proposed legislation allowing one House of Congress to disapprove amendments to IACAC rules, although not a veto of executive action, nonetheless violates the Presentment Clauses.
An alternative review mechanism whereby the Secretary of State would be required to approve or disapprove amendments to the IACAC rules would be constitutionally acceptable, since the amendments would not be binding on the government but merely advisory.
Application of 18 U.S.C. §§ 203 and 205 to Federal Employees Detailed to State and Local Governments
Environmental Protection Agency (EPA) is correct in its view that detailing its employees to important positions in state agencies, the duties of which may require them to represent the state before the EPA, is integral to the substantive environmental programs that EPA administers.
Sections 203 and 205 of Title 18 were not intended to limit substantively the uses federal agencies may make of their employees, and a federal employee is performing “official duties,” within the meaning of those provisions, when involved in a task that is integral to a substantive federal program.
Sections 203 and 205 do not prohibit EPA employees, detailed to a state agency pursuant to the Intergovernmental Personnel Act, from representing that agency before the EPA in the course of their assigned duties.
Effect of a Judicial Stay on Administrative Fund Termination Proceedings
Under the nondiscrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1972, the administrative process by which funds are suspended or terminated is independent of any contemporaneous judicial proceeding, and a stay entered in the judicial proceeding thus has no effect on an administrative decision to suspend or terminate funds.
The Law Enforcement Assistance Administration is free to defer administrative fund suspension or termination proceedings during the pendency of a judicial stay, but is foreclosed from restoring funds that have already been suspended or terminated except in accordance with the procedures set forth in the Omnibus Crime Control and Safe Streets Act.
Under the nondiscrimination provisions of the Revenue Sharing Act, the Office of Revenue Sharing is required to suspend administrative enforcement proceedings, and to restore funds already suspended or terminated, whenever a stay is issued in the judicial proceeding that triggered the administrative enforcement action.
The President’s Authority to Regulate Extensions of Credit Under the Credit Control Act
Under the Credit Control Act, the President is authorized to regulate and control extensions of credit whenever he determines that such action is necessary for the purpose of preventing or controlling inflation generated by the extension of credit in an excessive volume.
Proposed executive order announcing the President’s determination, and proposed implementing regulations of the Board of Governors of the Federal Reserve System imposing controls on certain kinds of consumer credit, on money market funds, and on managed liabilities, are within the authority granted the President and the Board under the Credit Control Act.
Vesting of Iranian Assets
Because the International Emergency Economic Powers Act does not authorize vesting of foreign property, and the Trading with the Enemy Act authorizes vesting only in wartime, in the absence of a declaration of war against Iran it would be necessary to seek new legislation in order for the United States to take title to the blocked Iranian assets.
No domestic constitutional issue would be raised by legislation authorizing the vesting of Iranian government property; moreover, vesting for the benefit of either private claimants or the U.S. government would be consistent with principles of international law, either as a self-help method of securing payment for damages, or as a reprisal for Iran’s continuing violations of international law.
Vesting legislation would have little effect on pending domestic litigation involving the blocked Iranian assets, and its effect on pre-judgment attachments would depend upon the validity of such attachments under state law. Vesting legislation would not be enforceable against property located abroad, and would therefore have no effect on foreign litigation involving Iranian dollar deposits in U.S. branch banks abroad, unless foreign courts were to hold that such dollar deposits are in reality located at the home office of the banks in the United States.
History of Appointments to the Supreme Court
The memorandum which follows, prepared by the Office of Legal Counsel at the request of the Attorney General, surveys four general aspects of the process of appointing Justices of the Supreme Court: (1) the qualities Presidents have sought in Supreme Court nominees; (2) the process of recruiting and evaluating potential appointees prior to nomination; (3) the manner in which the Senate fulfills its responsibilities in the appointment process; and (4) the relationship between the process of choosing a candidate and a successful candidate’s eventual performance on the Court. The memorandum pays special attention to the roles played in the appointment process by the Attorney General and the Department of Justice.
Authority of Indian Tribal Court to Issue Garnishment Writs Under 42 U.S.C. § 662(e)
An Indian tribal court is a “court of competent jurisdiction” for purposes of issuing garnishment writs under 42 U.S.C. § 662(e), if it has the power under tribal law to issue judgments awarding child support or alimony.
Effect of 18 U.S.C. § 600 on Proposal for Hiring Census Enumerators
Proposal to give preference for hiring as census enumerators to persons recommended by Democratic Party leaders does not violate 18 U.S.C. § 600, which punishes those who promise federal employment or benefits as an enticement to or reward for future political activity, but does not prohibit rewards for past political activity.
Even if § 600 were read to prohibit a promise of employment or benefits as a reward for past political activity, under the proposed program neither Democratic Party leaders nor any potential census enumerators are being made such a promise.
Constitutionality of State-Imposed Restrictions on Responses to Census Questions
The Supremacy Clause of the Constitution bars a state from imposing restrictions on its residents’ responses to questions contained in census form.
Specific limited grant of power in the Constitution does not preclude Congress from enacting broader census legislation under the Necessary and Proper Clause.
Statutory delegation to the Secretary of Commerce and Director of the Bureau of Census is not excessive, considering long history of census legislation and practice, and census forms are within that delegation.
Use of Polygraph Examinations in Investigating Disclosure of Information About Pending Criminal Investigations
The Attorney General may order Justice Department employees to submit to polygraph tests to answer questions relating to pending criminal investigations, and may discharge an employee for refusing to take such a test.
Even where an employee is entitled to be discharged only “for cause,” failure to cooperate with an official investigation by taking a polygraph test may constitute adequate cause, as long as the employee is given reasonable assurances respecting the need for the test and the use to which its results may be put.