Opinions
Department of Justice Views on the Constitution Adopted by the Constitutional Convention of the Virgin Islands
The following memorandum, initially drafted in the Office of Legal Counsel at the request of the Assistant Attorney General for Legislative Affairs, presents the Department of Justiceʼs views on certain provisions of the constitution adopted by the 1980 constitutional convention of the Virgin Islands. This constitution was approved by Congress for submission to the people of the Virgin Islands by Pub. L. No. 97-21, 95 Stat. 105 (1981), but was subsequently rejected in a referendum. As of the date of publication of this volume, the Virgin Islands do not have a constitution. The following analysis of the provisions of the rejected constitution discusses important and recurring constitutional and legal issues arising in the context of federal-territorial relations.
Settlement Authority of the United States in Oil Shale Cases
The Attorney General has authority to settle cases even when the agency charged with administering the underlying law would not have that authority.
In settling a case, the Attorney General is not bound by whatever litigating position the Department of Justice has heretofore taken in the case, nor is he bound by each and every statutory requirement that Congress may have imposed upon some other agency head in administering that agency’s program; at the same time, there may be some forms of settlement that would be foreclosed, as where the settlement would result in action plainly at variance with Congressʼ intent.
Representation of White House Employees
The following memorandum opinion discusses the propriety, under applicable laws and regulations, of providing legal representation at government expense to White House employees in connection with pending investigations by the Justice Department’s Office of Professional Responsibility and the Senate Judiciary Committee. Its conclusions are summarized in its second paragraph.
Applicability of the Federal Advisory Committee Act to the National Endowment for the Humanities
The Federal Advisory Committee Act (FACA) requires that the names of members of the Humanities Panel of the National E ndowment for the Humanities (NEH) be made available to the public by subgroup, but does not require that such disclosure occur until after the particular subgroup’s work has been completed.
The privacy exemption to the open meeting requirement of the Government in the Sunshine Act, made applicable to federal advisory committees by the 1976 amendments to FACA, may permit closing some portions of meetings of subgroups of the Humanities Panel at which individual grant applications are discussed; however, the NEH has the responsibility to determine in advance what portions of subgroup meetings will not fall within an exemption to FACA’s openness requirement, and to assure that those portions are closed to the public.
Disclosure of Confidential Business Records Obtained Under the National Traffic and Motor Vehicle Safety Act
National Highway Traffic Safety Administration (NHTSA) is not authorized to release confidential information and trade secrets obtained pursuant to § 112 of the National Traffic and Motor Vehicle Safety Act to the Federal Trade Commission (Commission) for use in a pending investigation of possible unfair and deceptive trade practices; § 112(e) precludes disclosure to agencies other than those charged with enforcing Title I of that Act, except in accordance with 18 U.S.C. § 1905.
Under 18 U.S.C. § 1905, confidential corporate records may be released if authorized by law; in the present situation only § 8 of the Federal Trade Commission Act, which confers on the President power to authorize disclosure to the Commission of confidential business information protected by § 1905, constitutes such authority.
Executive Order No. 12,174 is designed to minimize paperwork burdens on executive agencies, and does not authorize the NHTSA to disclose information protected by § 1905; nor does § 9 of the Federal Trade Commission Act provide such authority, at least in cases where the Commission has not sought to obtain the information through a request to the President under § 8, or directly from the party under investigation.
Appropriations Limitation for Rules Vetoed by Congress
The Presentation Clauses of the Constitution, Article I, § 7, clauses 2 and 3, require amendments of funding statutes, whether achieved through a legislative disapproval mechanism or otherwise, to be presented to the President in order to have the force of law.
Congress cannot use its power to appropriate money to circumvent general constitutional limitations on its power.
The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation
The Attorney General has a duty to defend and enforce both the Acts of Congress and the Constitution; when there is a conflict between the requirements of the one and the requirements of the other, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.
While there is no general privilege in the Executive to disregard laws that it deems inconsistent with the Constitution, in rare cases the Executive’s duty to the constitutional system may require action in defiance of a statute. In such a case, the Executive’s refusal to defend and enforce an unconstitutional statute is authorized and lawful.
Transportation of Federal Prisoners to State Courts Pursuant to Writs of Habeas Corpus
The Attorney General needs no specific statutory authorization in order to surrender custody of a federal prisoner to state authorities for transportation to a state court pursuant to a writ of habeas corpus, and no federal statute prohibits it.
Surrendering a federal prisoner to the temporary physical custody and control of state officers does not result in a loss of federal jurisdiction over the prisoner.
Escape of a federal prisoner temporarily in the custody of state authorities pursuant to the direction of the Attorney General would violate the federal escape statute, 18 U.S.C. § 751.
Suspension of the Foreign Sovereign Immunities Act in Litigation Involving Iranian Assets
It is doubtful that the International Emergency Economic Powers Act can be utilized to override conflicting provisions of a comprehensive and specific federal statute such as the Foreign Sovereign Immunities Act, particularly where such action is not demonstrably necessary to dealing with the underlying national emergency.
Dual Membership of an Individual on Two Federal Advisory Committees
There are no legal constraints, including the conflict of interest laws, that would rule out an individual’s concurrent membership on two federal advisory committees.
Per diem compensation received for service on a federal advisory committee does not constitute a salary from the federal government so as to disqualify an individual receiving such compensation from membership on the President’s Nuclear Safety Oversight Committee.