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Opinions
Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate Crimes Prevention Act—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, religion, or national origin of any person”—would be a permissible exercise of Congress’s authority to enforce the Thirteenth Amendment, at least insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment.
The prohibition in proposed section 249(a)(2) of S. 909—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person”—would be a permissible exercise of Congress’s authority under the Commerce Clause, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce.
Withdrawal of Opinion on CIA Interrogations
A previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office.
Assistance of Counsel in Removal Proceedings (II)
The Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 (Att’y Gen. 2009); Assistance of Counsel in Removal Proceedings (I), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.), is vacated.
The Acting Director of the Executive Office for Immigration Review shall initiate rulemaking procedures as soon as practicable to evaluate the pre-Compean framework for reviewing claims of ineffective assistance of counsel in deportation proceedings and to determine what modifications should be proposed for public consideration.
Pending the issuance of a final rule, the Board of Immigration Appeals and Immigration Judges should apply the pre-Compean standards to all pending and future motions to reopen removal proceedings based upon ineffective assistance of counsel.
Legislation Prohibiting Spending for Delegations to U.N. Agencies Chaired by Countries That Support International Terrorism
Section 7054 of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2009—which purports to prohibit all funds made available under title I of that Act from being used to pay the expenses for any United States delegation to a specialized U.N. agency, body, or commission that is chaired or presided over by a country with a government that the Secretary of State has determined supports international terrorism—unconstitutionally infringes on the President’s authority to conduct the Nation’s diplomacy, and the State Department may disregard it.
Statutory Rollback of Salary to Permit Appointment of Member of Congress to Executive Office
Where a salary increase for an office would otherwise create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by legislation rolling back the salary of the executive office before the appointment.
Participation of Members of Congress in the Ronald Reagan Centennial Commission
Provisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that six of eleven commissioners of the Ronald Reagan Centennial Commission would be members of Congress, appointed by congressional leadership, would raise concerns under the Appointment Clause, the Ineligibility Clause, and the separation of powers.
Withdrawal of Four Opinions on CIA Interrogations
Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.
Constitutionality of the D.C. House Voting Rights Act of 2009
The constitutionality of the District of Columbia House Voting Rights Act of 2009 presents a close question, but the balance tips in favor of finding the Act constitutional.
Neither the text of the Constitution nor the analysis of applicable precedent clearly resolves the question of whether Congress may confer House voting rights on D.C. residents by legislation.
In the absence of a clear constitutional prohibition, the Constitution does not require denying the most basic rights in a democracy—the right to elect representation in the legislature and therefore to self-governance—to U.S. citizens who happen to be residents of the District of Columbia.
Views on Legislation Making the District of Columbia a Congressional District
The District of Columbia Voting Rights Act of 2009 is unconstitutional.
Congress may not by statute give the District of Columbia voting representation in the House.
The District of Columbia is not a “State” within the meaning of the Composition Clause, which governs the membership of the House of Representatives.
The District Clause gives Congress broad power to legislate for the District, but it does not permit Congress to override the prescriptions of the Composition Clause.
Authority of Acting FBI Officials to Sign National Security Letters
Under the statutes authorizing the FBI to issue national security letters, the Director of the FBI may designate Acting Deputy Assistant Directors and Acting Special Agents in Charge to sign national security letters.