Opinions
Standards for Closing a Meeting of the Select Commission on Immigration and Refugee Policy
The Select Commission on Immigration and Refugee Policy is subject to the requirements of the Federal Advisory Committee Act, which provides that advisory committee meetings may be closed to the public only upon a determination that one or more of the exemptions of the Government in the Sunshine Act is applicable.
The December 1980 meeting of the Commission may not be closed in its entirety for national security and foreign policy reasons, insofar as it deals with matters not relating to those issues; the spirit of the Federal Advisory Committee Act requires that the meeting agenda be structured so that classified and other exempt information is considered separately from the main, and congressionally mandated public, policy discussions and decisionmaking activities of the Commission.
Presidential Authority to Permit the Withdrawal of Iranian Assets Now in the Federal Reserve Bank
In order to allow Iran to withdraw its assets in the Federal Reserve Bank, the President has the power, under the International Emergency Economic Powers Act (IEEPA), to nullify existing attachments licensed under the Iranian Assets Control Regulations. Since in consenting to attachments against the blocked Iranian assets the Government reserved the right to revoke its consent at any time, their nullification does not constitute a compensable taking of private property.
The Federal Reserve Bank may release Iranian assets which have been attached but are not yet subject to a licensed final judgment, in reliance on the Presidents’ action under the IEEPA, without applying to the court to vacate its attachment orders. The considerations which ordinarily mandate compliance with court orders would not justify a contempt citation where the conduct in question has been clearly mandated by supervening executive action, where compliance would defeat the President’s exercise of his emergency power under the IEEPA, and where the IEEPA itself provides an express exception to contempt liability for compliance with an order issued under its authority.
Where Congress has immunized good faith compliance with a presidential order issued under the IEEPA, the Federal Reserve Bank would not be held liable to disappointed attachment creditors even if the presidential orders nullifying the attachment orders were later held unlawful. Nor is there any basis, in the Constitution or otherwise, on which creditors whose attachments were nullified would be likely to recover against the United States itself.
Authority of the Secretary of the Treasury Under the New York City Loan Guarantee Act of 1978
The authority of the Secretary of the Treasury to issue guarantees under the New York City Loan Guarantee Act of 1978, P.L. No. 95-339 and P.L. No. 95-415, was not affected by a rider in the Senate appropriation bill, H.R. 7631, under § 101(a)(3) of the Continuing Appropriations Resolution, P.L. No. 96-369, 94 Stat. 1351.
Section 101(a)(3) of the Continuing Appropriations Resolution was intended to distinguish between matters considered by both the Senate and the House of Representatives in their appropriations bills, for which the more restrictive of the two provisions on an agency’s authority is to govern, and matters considered by only one House in its appropriations bill, for which the authority and conditions of FY 1980 appropriations are to govern.
The restriction on the Secretary of the Treasury’s authority to issue guarantees under the New York City Loan Guarantee Act of 1978 is found only in the Senate version of the appropriations bill pertaining to the New York City Loan Guarantee program and had not been considered by the House of Representatives; therefore, the Senate rider did not operate (under § 101(a)(3) of the Continuing Appropriations Resolution) to restrict the Secretary’s authority to issue New York City loan guarantees.
The Attorney General does not have the authority to issue opinions on questions arising out of a business transaction between a private person and the government when the private person has insisted on receiving an Attorney General opinion for his benefit and the requesting department head has no real concern about the question.
The Attorney General will issue opinions related to business transactions between the government and private persons only when the transaction raises a substantial and genuine issue of law arising in the administration of a Department.
Federal Bureau of Investigation Authority to Investigate a Killing in the Virgin Islands
Under 28 U.S.C. § 533(3), the Federal Bureau of Investigation (FBI) has authority to conduct an investigation of any “official matters under the control of the Department of Justice.” Since, under 48 U.S.C. § 1617, the United States Attorney for the Virgin Islands is empowered to prosecute serious offenses against local law, including murder, the murder of an immigration judge in the Virgin Islands is within the FBI’s investigative jurisdiction.
Presidential Authority to Control Export of Hazardous Wastes Under the Export Administration Act of 1979
The Export Administration Act of 1979 gives the President authority to impose controls on the export of hazardous wastes.
Under the 1979 Act, the term “export” includes transactions that have substantial economic consequences, even if they do not directly produce revenue by sales.
Environmental Protection Agency Overflights and Fourth Amendment Searches
Routine overflights of industrial plants by the Environmental Protection Agency (EPA), conducted at lawful altitudes and employing commercially available visual aids, do not constitute searches under the Fourth Amendment.
Considering the comprehensive nature of the federal environmental regulatory scheme, corporate businesses may have no legitimate expectation of privacy against EPA observations for the purpose of detecting emissions into the air or discharges into water.
Litigating Authority of the Regional Fishery Management Councils
The legislative history and general statutory framework of the Fishery Conservation and Management Act of 1976 indicate that Congress did not intend the Regional Fishery Management Councils to have litigating authority independent of the Department of Justice, so as to enable them to challenge in cou rt a decision by the Secretary of Commerce taken under the FCMA and relating to the establishment of the Councils and their functions.
The Councils have neither express statutory authority nor that freedom from executive control that would give rise to some inference supportive of their having independent litigating authority.
The general rule against inter-agency and intra-agency lawsuits arises not only from a desire for centralized control of litigation, but also from the constitutional principle that disputes between entities subject to the control of the President should be resolved within the executive branch.
Presidential Authority to Settle the Iranian Crisis
The President has the constitutional and statutory authority to enter an executive agreement with Iran which settles American citizens’ claims against Iran; claimants who receive less than the stated value of their claims should not be able to recover additional compensation from the United States government on the theory that the settlement constituted a taking under the Fifth Amendment.
The President may, through orders issued under the International Emergency Economic Powers Act (IEEPA), free currently blocked Iranian assets and effect their return to Iran, notwithstanding the existence of court orders of attachment for bidding the removal of Iranian funds from the banks holding them, by revoking the existing general license for the attachments under the Iranian Assets Control Regulations and licensing Iranian withdrawals from the blocked accounts. Since private banks may refuse to honor withdrawal licenses after the attachments are revoked for fear of liability under state law to the attachment claimants, funds held by federal banking entities should be relied on as the source of any amounts promised to be returned forthwith to Iran.
Foreign branches of American banks are subject to orders issued under authority of the IEEPA and, once withdrawal licenses are issued, there should be no legal impediment to Iranian withdrawals from previously blocked accounts as long as previously licensed setoffs are observed. If creditors of Iran seek to attach these accounts through actions in foreign courts, it is likely that those courts would allow their own domestic claimants a special priority.
The President may, under existing law, take several kinds of actions to assist Iran in effecting the return of the former Shah’s assets in the United States. These actions include blocking the assets under the IEEPA to facilitate a census and prevent their removal, undertaking to aid Iran in its litigation to recover the assets, informing the court of our position on foreign sovereign immunity and act of state doctrines, or taking an assignment of its claims from Iran. However, vesting the Shah’s assets in the government would require new legislative authority and even then would give rise to a takings claim for just compensation by the Shah’s estate.
Congressional Power to Provide for the Vesting of Iranian Deposits in Foreign Branches of United States Banks
Congress has the power under Article I, § 8 of the Constitution to authorize the peacetime vesting of assets of a foreign government in the control of foreign branches of American-owned and incorporated banks, at least insofar as such power may be enforced by courts of the United States.
The Just Compensation Clause of the Fifth Amendment does not prohibit the United States from effecting uncompensated seizures of the assets of foreign nations.
While United States courts will ordinarily make every effort to construe statutes to accord with our treaty obligations and general international law principles, Congress may, by clearly expressing its intent to do so, legislate in derogation of international law or contrary to prior treaty obligations. Therefore, a United States court would likely enforce a vesting order directed at overseas deposits of a foreign government that was clearly authorized by Congress notwithstanding contrary treaties or principles of international law.
Congress could provide for the seizure in this country of Iran’s overseas deposits by permitting vesting orders to be served against the New York office of the banks involved; however, foreign courts may refuse to give effect to what would appear to be the United States’ uncompensated extraterritorial appropriation of non-enemy assets in any suit brought by Iran to recover its deposits.
General Accounting Office Request for Documents of the Federal Emergency Management Agency
The General Accounting Office Act of 1980 gives the General Accounting Office (GAO) new power to enforce its requests for information from executive branch agencies, but does not limit or expand GAOʼs underlying statutory authority to obtain such information.
In requesting documents of the Federal Emergency Management Agency (FEMA), GAO acts as an agent of the Congress and therefore has the benefit of the same protection against an executive agency’s assertion of the Freedom of Information Act (FOIA) exemptions as does the Congress and its committees. Accordingly, FEMA may not assert FOIA exemption (b)(5) as a basis for declining to release documents to GAO.
The executive branch may, in appropriate circumstances, exercise its constitutional authority to decline to release information in order to safeguard the discharge of its functions.