U.S. Department
of Justice
Opinions
Obligating Carryover Funds in Violation of OMB Zero-Dollar Apportionment Rule
At least in circumstances where an agency fails to submit an apportionment request for carryover funds to the Office of Management and Budget before the start of a fiscal year, the automatic zero-dollar apportionment effected by section 120.57 of OMB Circular A-11 is a valid apportionment for purposes of the Anti-Deficiency Act. As a result, in such circumstances, 31 U.S.C. § 1517 would prohibit an agency from expending or obligating funds exceeding that apportionment of zero.
Statutory Mandate to Propose Legislation in Response to Medicare Funding Warning
The Recommendations Clause bars Congress from enacting laws that purport to prevent the President from recommending legislation that he judges “necessary and expedient.”
The Recommendations Clause bars Congress from enacting laws that purport to require the President to recommend legislation even if he does not judge it “necessary and expedient.”
Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, which requires the President to submit “proposed legislation” in response to a Medicare funding warning under section 801(a)(2), contravenes the Recommendations Clause and may be treated as advisory and non-binding.
Emergency Statutes That Do Not Expressly Require a National Emergency Declaration
The National Emergencies Act’s coverage is not limited to statutes that expressly require the President to declare a national emergency, but rather extends to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act.
Effect of Appropriations Rider on Access of DOJ Inspector General to Certain Protected Information
Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal year 2016, from denying the Department’s Office of the Inspector General (“OIG”) timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year.
Article 17 Bis of the Air Transport Agreement with the European Union
Article 17 bis of the Air Transport Agreement Between the United States of America and the European Community and Its Member States does not provide an independent basis upon which the United States may deny a permit to an air carrier of a Party to the Agreement if that carrier is otherwise qualified to receive such a permit.
Continuation of Terminal Leave for Military Officer Appointed to Federal Civilian Position
An active duty military officer on terminal leave who meets the requirements of 5 U.S.C. § 5334a may continue on terminal leave status after his appointment or election to a position covered by 10 U.S.C. § 973(b)(2)(A).
Special Government Employee Serving as Paid Consultant to Saudi Company
A special government employee, retained to provide advice on behalf of the Department of Commerce to Middle Eastern countries that are reforming and harmonizing their laws, may accept a paid consulting position with a Saudi energy company without violating the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, because he does not hold an “Office of Profit or Trust under” the United States.