Opinions
Contractor Access to Information from Interstate Identification Index
The Office of Personnel Management and other agencies have authority to disclose criminal history records information to private contractors performing background investigations of government employees or prospective employees.
OPM and other agencies also have authority to permit those contractors to have controlled on-line access to criminal history records of individuals subject to background investigations through the Interstate Identification Index system.
Nomination of Sitting Member of Congress to Be Ambassador to Vietnam
The Ineligibility Clause does not bar the nomination of Representative Pete Peterson to be Ambassador to the Socialist Republic of Congress, provided that the President does not make the determination to create the office of ambassador to that government until after the expiration of the term for which Representative Peterson was elected.
Government Printing Office Involvement in Executive Branch Printing
The Office of Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated May 31, 1996, regarding Government Printing Office involvement in executive branch printing.
Constitutionality of Statute Governing Appointment of United States Trade Representative
19 U.S.C. § 2171(b)(3), which prohibits the appointment as United States Trade Representative of any person who has “represented, aided, or advised a foreign entity” in a trade negotiation or dispute with the United States, is an unconstitutional intrusion on the President’s appointment power and thus has no legal effect.
Presidential Certification Regarding the Provision of Documents to the House of Representatives Under the Mexican Debt Disclosure Act of 1995
The Mexican Debt Disclosure Act of 1995 requires that, before certain assistance is extended to Mexico, the President must certify that he has provided the House of Representatives with the documents described in House Resolution 80. The President submitted a certification that indicated that the executive branch had not provided to the House certain documents because it would be inconsistent with the public interest to do so. The Act is best interpreted as incorporating an exception for those documents as to which disclosure would not be in the public interest. Therefore, the President’s certification was a legally sufficient formulation of the certification required by the Act.
Constitutionality of Legislative Provision Regarding ABM Treaty
There are serious doubts as to the constitutionality of a provision of a bill stating that the United States shall not be bound by any international agreement entered into by the President that would substantively modify the Antiballistic Missile Treaty with the Soviet Union, including any agreement that would add other countries as signatories or convert that bilateral treaty into a multilateral treaty, unless the agreement is entered pursuant to the President’s treaty making power. The provision intrudes on the Executive’s exclusive constitutional powers to interpret and execute treaties and to recognize foreign States.
FBI Authority to Investigate Violations of Subtitle E of Title 26 or 18 U.S.C. §§ 921–930
The Federal Bureau of Investigation has authority to participate in investigations of violations of Subtitle E of Title 26 and 18 U.S.C. §§ 921–930 but may not supplant the primacy of the Department of the Treasury over investigations of such violations, unless the FBI has reason to believe that the investigation concerns a crime of terrorism over which a statute or Presidential Decision Directive 39 has given the FBI primary responsibility.
Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations
A provision in the Department of Agriculture appropriations legislation for Fiscal Year 1996, providing that a regulation otherwise rendered inoperative could be put into effect if a revised version of the regulation submitted by the Secretary of Agriculture was received and approved by two committees of Congress, violates the constitutional separation of powers by purporting to provide for the legislative enactment of a regulation without bicameral passage and presentment, as required by Article I of the Constitution.
This unconstitutional provision is severable from the remainder of the section and statute in which it is contained, so that the section’s prohibition against the use of appropriated funds to implement the subject regulation, and its provision that the regulation may not take effect absent authorizing legislation, are both constitutionally enforceable.
All provisions of the section, including its prohibition against the regulation taking effect absent future authorizing legislation, are limited in duration to the 1996 Fiscal Year.
Involvement of the Government Printing Office in Executive Branch Printing and Duplicating
Section 207(a) of the Legislative Branch Appropriations Act, 1993, as amended, which requires all executive branch printing to be procured by or through the Government Printing Office, vests executive functions in an entity subject to congressional control and is therefore unconstitutional under the doctrine of separation of powers.
Agency contracting officers who act consistently with this opinion, and in derogation of the contrary view of the Comptroller General, would face little or no risk of civil, criminal, or administrative liability.
Assertion of Executive Privilege Regarding White House Counsel’s Office Documents
Executive privilege may properly be asserted with respect to certain White House Counsel’s Office documents that have been subpoenaed by the Committee on Government Reform and Oversight of the House of Representatives in connection with the Committee’s investigation of the White House Travel Office matter.