Opinions
Disposition of Proceeds from the Sale of Government Buildings Acquired with Social Security Trust Funds
The General Services Administration is authorized, under section 412 of the Consolidated Appropriations Act of 2005, to convey Social Security Administration buildings that were acquired with money derived from the Social Security Trust Funds and to retain the net proceeds in the Federal Buildings Fund.
Availability of Rights Under the Crime Victims’ Rights Act of 2004
The rights provided by the Crime Victims’ Rights Act are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the government declines to bring formal charges after the filing of a complaint).
Special Master for Troubled Asset Relief Program Executive Compensation
The Special Master for Troubled Asset Relief Program Executive Compensation is not a principal officer for purposes of the Appointments Clause and thus need not be appointed by the President, by and with the advice and consent of the Senate.
NOAA Employee’s Receipt of the Göteborg Award for Sustainable Development
Neither the Emoluments Clause of the Constitution nor the Foreign Gifts and Decorations Act would bar an employee of the National Oceanic and Atmospheric Administration from accepting the 2010 Göteborg Award for Sustainable Development.
Entitlement to Reservist Differential Pay Under Pre-Amendment Version of 5 U.S.C. § 5538
Under the pre-amendment version of 5 U.S.C. § 5538, covered employees may receive reservist differential pay not only for pay periods that occur when they are serving on active duty, but also for those pay periods that fall within the additional period in which they have re-employment rights following the completion of that duty.
Applicability of the Emoluments Clause to Non-Government Members of ACUS (II)
A nongovernmental member of the Administrative Conference of the United States does not occupy an office of profit or trust within the meaning of the Emoluments Clause.
Administration of the Ronald Reagan Centennial Commission
The Ronald Reagan Centennial Commission should create an executive committee, composed of its five presidentially appointed members, to discharge the purely executive functions of the Commission.
The six congressional members, in turn, could participate in nearly all of the Commission’s activities, including in ceremonial functions, and could advise the executive committee on the formulation of programs that would be technically approved and executed by non-congressional members.
Applicability of Tax Levies to Thrift Savings Plan Accounts
Thrift Savings Plan accounts are subject to federal tax levies under sections 6331 and 6334 of the Internal Revenue Code, notwithstanding a statute that, standing alone, would protect such accounts from “levy” except as expressly provided in that statute.
Application of the Violence Against Women Act When the Offender and Victim Are the Same Sex
The criminal provisions of the Violence Against Women Act apply to otherwise-covered conduct when the offender and victim are the same sex.
Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
The Orderly Liquidation Authority Panel that would be authorized by section 202 of the Committee Print of the Restoring American Financial Stability Act of 2010 would have independent jurisdiction to determine the statutory permissibility of petitions issued by the Secretary of the Treasury to appoint the Federal Deposit Insurance Corporation as receiver for certain systemically important financial companies that are in default or in danger of default. If this Panel—a bankruptcy court tribunal composed of three judges from the U.S. Bankruptcy Court for the District of Delaware who are appointed by the Chief Judge of that court—were deemed to be a part of the Executive Branch, its exercise of this jurisdiction would raise both Appointments Clause and separation of powers concerns.
If the Panel instead were deemed to be a part of the Judicial Branch, the Appointments Clause concerns would be mitigated, if not resolved, but the separation of powers concerns would be heightened.
The Panel could be located within the Judicial Branch while addressing both the Appointments Clause and separation of powers concerns if Congress were to vest jurisdiction to review receivership petitions in an Article III court, with that court authorized to refer such petitions to the Panel and to withdraw referrals under appropriate circumstances, or if the Panel were to consist of Article III judges rather than bankruptcy judges. This structure, however, would likely prevent the Panel from adjudicating petitions where the financial company consents to the appointment of the FDIC as receiver and thus does not present a justiciable case or controversy.