Opinions
Discrimination Among Classes of Legal Aliens in the Provision of Welfare Benefits
Proposed legislation authorizing the states to discriminate among classes of legal aliens in the provision of welfare benefits is within Congress' power, and state statutes passed pursuant to it would likely be held constitutional.
As a general matter, Congress could legislate to prevent states from providing welfare benefits to certain classes of aliens in order to effectuate a national policy on immigration. While there appears to be no basis for Congress’ preempting provisions in state constitutions which mandated the payment of welfare to all aliens, regardless of their legal status, neither does any state constitution appear to contain such a mandatory provision.
Authority of Senate Committee Staff to Depose Executive Branch Officers
There is no authority in the rules of the Senate, or in relevant statutes, for the Senate Committee on Labor and Human Resources to direct its staff to depose certain Executive Branch officials. Recent practice establishes that such depositions may be taken by Senate committee staff only when specifically authorized by a resolution of the full Senate in connection with a particular investigation.
Swearing in of a United States Attorney
A United States Senator is not authonzed by federal law to administer the oath of office to a United States Attorney, though he may administer a ceremonial oath.
Confidentiality of the Attorney General’s Communications in Counseling the President
The following memorandum examines the scope of confidentiality accorded the Attorney General’s communications with the President, and the extent to which those communications may be shielded from compulsory disclosure to Members of Congress, the courts, and members of the public. It considers the dual nature of the Attorney General’s role as Cabinet member and as principal legal adviser to the President, and extends to the broader question of the confidentiality of the deliberative materials generated by the Attorney General and those who assist him. The memorandum discusses the applicability of the doctrine of executive privilege, and the appropriate circumstances for its invocation. It also analyzes the scope of the deliberative process and attomeyclient privileges under the Freedom of Information Act, and of the traditional governmental evidentiary privileges and their statutory counterparts.
Reimbursement for Defense Department Assistance to Civilian Law Enforcement Officials
The Department of Defense Authorization Act of 1982 authorizes the Secretary of Defense to seek reimbursement from civilian law enforcement agencies to whom the Department provides various forms of assistance, and the Secretary of Defense may condition his Department’s provision of assistance on such reimbursement. However, the Act also gives the Secretary discretion to waive a requirement of reimbursement for assistance provided under its authority.
The Economy Act, 31 U.S.C. § 686 (1976), provides general authority for one agency to request assistance from another agency for an activity or operation that the requesting agency has authority to perform, and a performing agency should seek reimbursement for the actual cost of services provided under that Act. However, where there is specific authonty for one agency to assist another, the provisions of the Economy Act do not apply.
Department of Justice Representation of Federal Employees in Fair Employment Suits
Government attorneys are not prohibited by 18 U.S.C. § 205 from representing federal employees in judicial personnel administration proceedings, as long as the representation is uncompensated and is not inconsistent with the attorney’s performance of his or her official duties. However, Department of Justice regulations prohibit departmental attorneys from representing federal employees in fair employment suits in federal court, explicitly limiting such representation to administrative complaint procedures.
Importation of Morphine Sulfate for Placement in the National Defense Stockpile
The Attorney General may authorize the General Services Administration to import morphine sulfate from Turkey for placement in the National Defense Stockpile under an exception in 21 U.S.C. § 952(a)(2)(A), if he determines that acquisition by import is necessary due to an emergency in which domestic supplies are inadequate to meet a legitimate need of the United States.
A reasonable argument can be made that the prohibition in 21 U.S.C. § 952(a) does not apply to the importation of drugs by the United States, notwithstanding long-standing and consistent administrative practice and interpretation to the contrary.
Committee Approval Provision in the Simpson-Mazzoli Immigration Bill
The provision in the Simpson-Mazzoli immigration bill, which gives the House and Senate Judiciary Committees power to dispense with certain otherwise applicable statutory requirements for an employment eligibility system, is unconstitutional, whether viewed as allowing a congressional committee to exercise delegated executive power, or as authorizing a legislative act without the necessary requirements of bicameralism and presentation to the President.
Questions Raised by the Attorney General’s Service as a Trustee of the National Thist for Historic Preservation
No conflict of interest or breach of fiduciary duty is created where the Attorney General is responsible for defending a suit brought against the Army Corps of Engineers by the National Trust for Historic Preservation, on whose Board of Trustees he serves, by statute, as an ex officio member. As an ex officio trustee, the Attorney General is always presumed to be representing the interests of the United States, especially in those situations in which the interests of the Trust and those of the United States conflict, so that no question of divided loyalty arises.
While the Attorney General is authorized to participate in litigation involving the National Trust if he considers it to be in the interests of the United States, the National Trust is not a federal agency such that the Attorney General has the authonty to supervise and control all litigation to which the Trust is a party.
The terms “officer, director, or trustee” in 18 U.S.C. § 208 do not include an ex officio member of an essentially private body, whose service in that body derives only from an office of public trust. While a trustee ordinarily owes a duty of loyalty to the beneficiaries of the trust, that requirement may be altered by the terms of the trust, in this case the statute which established the Trust and which made the Attorney General an ex officio trustee.
Acquisition of Land by the Department of the Air Force
The requirement in 40 U.S.C. § 255 that the Attorney General review and approve the sufficiency of title to land prior to its acquisition by the government applies to all federal land acquisitions, except those specifically exempted from it, including the acquisition of land proposed by the Air Force in this case. The statutory provision which allows the Air Force to begin construction on land before its title is approved does not create an exception to the generally applicable requirement in 40 U.S.C. § 255, but is merely intended to allow military construction projects to get underway pending a determination on the validity of title.
Under regulations promulgated by the Attorney General, which are binding on agencies to which he had delegated his authority to approve title, less than fee simple title may not be approved for lands on which the United States is placing permanent improvements, except where Congress has authorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser estate, the Attorney General and his delegees are still responsible for determining whether the title to be acquired in a particular case is sufficient for the intended government purposes.
The title proposed to be acquired from the Colorado State Board of Land Commissioners in this case—a right-of-way subject to a reversion interest—is not sufficient under Colorado law to protect the interests of the federal government where the Air Force intends to build a multimillion dollar military complex on the land.