Opinions
Applicability of the Service Contract Act to Volunteer Workers at the National Oceanic and Atmospheric Administration
Pursuant to 28 U.S.C. § 512, the Office of Legal Counsel has jurisdiction to resolve a legal dispute between the Departments of Commerce and Labor where the request for the opinion was made by the General Counsel of Commerce under authority delegated from the Secretary of Commerce.
The Service Contract Act prohibits contractors operating the National Oceanic and Atmospheric Administration library from using voluntary, uncompensated employees. Commerce may petition the Secretary of Labor for an exemption to permit the use of volunteer employees under the NOAA contract.
Common Legislative Encroachments On Executive Branch Authority
This memorandum lists and briefly discusses a variety of common provisions of legislation that are offensive to principles of separation of powers, and to executive power in particular, from the standpoint of policy or constitutional law.
The President’s Authority to Convene the Senate
Article II, section 3 of the Constitution gives the President a broad grant of authonty to convene Congress or either House of Congress “on extraordinary occasions.” The language and purpose of the clause make plain that the President may exercise this authority to convene the Senate during an intra-session break.
Dual Office of Chief Judge of Court of Veterans Appeals and Director of the Office of Government Ethics
Federal law does not bar a single individual from serving simultaneously as the Chief Judge of the Court of Veterans Appeals and the Director of the Office of Government Ethics.
Constitutionality of the Qui Tam Provisions of the False Claims Act
Qui tam suits brought by private parties to enforce the claims of the United States violate the Appointments Clause of the Constitution because qui tam relators are “Officers of the United States” but are not appointed in accordance with the requirements of the Appointments Clause.
Private qui tam actions violate the doctrine of Article III standing because the relator has suffered no personal “injury in fact.”
The qui tam provisions of the False Claims Act violate the separation of powers doctrine because they impermissibly infringe on two aspects of the President’s authority to execute the laws: the discretion whether to prosecute a claim and the authority to control the conduct of litigation brought to enforce the Government’s interests.
Given qui tam’s clear conflict with constitutional principles, any argument to sustain the qui tam provisions based upon historical practice must fail.
Application of the Federal Bribery Statute to Civilian Aides to the Secretary of the Army
If the United States enters into appropriate settlement agreements with foreign countries whose nationals were victims of the 1988 Iran Air incident, the Attorney General would have the authority to certify such settlements for payment from the Judgment Fund, subject to approval by the Comptroller General. The Comptroller General’s role is ministerial.
Availability of the Judgment Fund for Settlements With Foreign Countries
If the United States enters into appropriate settlement agreements with foreign countries whose nationals were victims of the 1988 Iran Air incident, the Attorney General would have the authority to certify such settlements for payment from the Judgment Fund, subject to approval by the Comptroller General. The Comptroller General’s role is ministerial.
Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau
The assistance to the United States National Central Bureau by military agencies that is permitted by the Posse Comitatus Act is not limited to investigations into violations of the Uniform Code of Military Justice. Additional situations under which assistance is permitted is discussed in the memorandum.
Deportation Proceedings for Joseph Patrick Thomas Doherty
The Attorney General disapproved the decision of the Board of Immigration Appeals to permit the respondent to reopen his deportation proceedings in order to apply for relief from deportation and to redesignate his country of deportation.
Reimbursement for Detail of Judge Advocate General Corps Personnel to a United States Attorney’s Office
The Economy Act requires the Department of Defense to be reimbursed for the detail of Judge Advocate General Corps attorneys to a United States Attorney’s Office.
The authonty of the Director of National Drug Control Policy temporarily to reassign federal personnel under the Anti-Drug Abuse Act of 1988 does not displace the requirements of the Economy Act.