Opinions
Delegation of Authority to Approve Suspension of Securities leading on a National Market
The President is authorized by the general delegation authority in 3 U.S.C. § 301 to delegate to the Secretary of the Treasury his authority to approve the suspension of securities trading by the Securities and Exchange Commission under § 12(k) of the Securities Act of 1934, since nothing in that section affirmatively prohibits delegation or specifically designates another officer to receive delegation of the function.
Nothing in the legislative history of § 12(k) suggests that Congress expected the President to exercise his approval authority personally. Indeed, Congress may have felt it necessary to make explicit the § 12(k) approval authority at all only because of the independence otherwise given the SEC. Thus the congressional intent could have been simply to give the President the option, which he might not otherwise have enjoyed, to supervise the agency’s decisions in this important area.
Paperwork Reduction Act of 1980
The provisions of the Paperwork Reduction Act of 1980 giving the Office of Management and Budget authority to review and approve agency “information collection requests” do not apply to reporting and recordkeeping requirements contained in agency regulations which came into existence prior to the effective date of the 1980 Act. However, new regulations containing reporting or recordkeeping requirements must be developed in accordance with the procedures set forth in 44 U S.C. § 3504(h).
Section 3504(h) provides the exclusive procedure for OMB review and possible disapproval of information collection requirements contained in or specifically required by agency regulations; the more stringent procedures for OMB review set forth in 44 U.S C. §§ 3504(c) and 3507 apply only to agency information collection requests issued pursuant to or deriving from regulations.
The language and history of other provisions of the Paperwork Reduction Act, as well as its general scheme, support the conclusion that OMB has no authority under either § 3504(h) or § 3507 to review and disapprove existing agency regulations. Nonetheless, OMB is given substantial authority over existing regulations by other provisions of the Act, including § 3504(b).
Federal “Non-Reserved” Water Rights
The following memorandum of law deals with the scope of the federal government’s rights to unappropriated water flowing across federally owned lands in the western states. It discusses the background and development of the federal “non-reserved” water rights theory, and concludes that that theory does not provide an appropriate legal basis for a broad assertion of water rights by federal agencies without regard to state laws. It then sets forth the legal standards and considerations that are applicable to an analysis of federal water rights in connection with the management of particular federal lands under specific statutes authorizing federal land management.
Funding an Agency’s Functions From Its Working Capital Fund
The Secretary of Commerce may designate certain agency functions now funded out of his Department’s General Administration (GA) appropriation as “central services” and transfer responsibility for their funding to the working capital fund, 15 U.S.C. § 1521, so that they will henceforth be paid for with funds appropriated to the various component bureaus of the Department of Commerce. The Secretary may thereby avoid exhaustion of the GA account, the likely consequence of a ruling of the Comptroller General disallowing direct reimbursement of the GA by the bureaus on grounds that it would unlawfully augment the GA appropriation.
The authority for a working capital fund in 15 U.S.C. § 1521 constitutes an exception to the Comptroller General’s rule prohibiting an agency from switching responsibility for funding a particular service from one appropriation account to another.
United States Secret Service Use of the National Crime Information Center
The United States Secret Service (USSS) has authority under 18 U.S.C. § 3056 to investigate and maintain files on an individual who it reasonably believes might pose a threat to the physical safety of those it is responsible for protecting, even though that individual is not the subject of an arrest warrant or under investigation for any prior criminal activity.
The USSS has authority to disclose information in its investigative files to the Federal Bureau of Investigation (FBI) and other law enforcement agencies through entry of this information into the National Crime Information Center (NCIC). The Attorney General is also independently authorized by 28 U.S.C. § 534 to disseminate information on criminal investigations, including information on USSS-monitored subjects, for law enforcement purposes.
An exchange of information among law enforcement agencies through the NCIC must satisfy the requirements of the Privacy Act. In order to avoid that statute’s general prohibition on disclosure, the USSS and FBI must satisfy the procedural requirements of the “ routine use” exemption contained in 5 U.S C. § 552a(b)(3).
Disclosure of information from the NCIC on USSS-monitored subjects for non-law enforcement purposes, such as employment or licensing, is prohibited by the Privacy Act, and may raise serious constitutional problems under the Fifth and Fourteenth Amendments.
Both 28 U.S.C. § 534 and the Privacy Act require that reasonable efforts be made to assure that information contained in the NCIC is accurate and relevant to its use for law enforcement purposes.
Title VI and Urban Indian Housing
The Department of Housing and Urban Development is not authorized by statute or regulation to provide tenant rental assistance to an urban housing program whose occupancy is limited to Indians, and such assistance to a program with a racially or ethnically exclusive tenant policy is affirmatively prohibited by Titles VI and VIII of the Civil Rights Act of 1964 and by the Fifth Amendment.
Legislation affecting Indians should be construed in their interest; however, if Congress does not explicitly single out Indians for preferential treatment, courts should not imply an intent to treat Indians more favorably or differently from all other citizens.
While Congress has approved special aid for Indians in connection with housing on reservations and Indian areas, neither the Housing Act of 1937 nor long-settled and congressionally ratified administrative practice under that Act sanction off-reservation Indian housing preferences which would otherwise violate statutory or constitutional nondiscrimination requirements.
Applicability of the Hatch Act to the Chairman of the Native Hawaiians Study Commission
The Native Hawaiians Study Commission is an “Executive agency” whose employees are covered by the Hatch Act, even though its functions are by statute confined to advising Congress. The part-time Chairman of the Commission is covered by the Hatch Act on the days she is paid to perform government services.
Immunity of Veterans Administration Medical Facilities From Alabama State Utility License Tax
The utility license tax imposed by the State of Alabama on public utilities operating within that State, whose economic burden is passed on by the utilities to their customers by order of the state public utility commission, is constitutionally valid as applied to federal agencies, since its legal incidence falls on the utilities and not on their customers.
In determining whether the legal incidence of a state tax was intended by the legislature to fall upon the federal government, and is thus prohibited under the Supremacy Clause, a tax scheme as a whole and the context in which it operates, as well as the terms of the taxing statute, must be considered.
The fact that the terms of the taxing statute do not require the tax to be passed on to customers, and do not provide a mechanism for doing so, is indicative of the legislature’s intent that the incidence of the license tax remain on the utilities.
Debt Obligations of the National Credit Union Administration
Debt obligations of the National Credit Union Administration, lawfully incurred on behalf of the Central Liquidity Facility, pursuant to 12 U.S.C. § 1795f(a), represent obligations of the United States backed by its full faith and credit.
There is a presumption, historically reflected in opinions of the Attorney General, that federal agency obligations are supported by the full faith and credit of the United States, unless the statute authorizing such obligations expressly provides otherwise. This presumption extends to obligations incurred by an agency on behalf of a non-federal entity.
While principles of restraint and respect for the Comptroller General as an agent of Congress ordinarily require that his opinions be accorded substantial weight by the Attorney General, in this case the Comptroller General failed properly to apply the legal principles governing full faith and credit which are delineated in the opinions of the Attorney General.
Opinions of the Attorney General on matters of law are, as a matter of course, to be followed by all officers of the Executive Branch.
Delegation of Cabinet Members’ Functions as Ex Officio Members of the Board of Directors of the Solar Energy and Energy Conservation Bank
Under settled principles of administrative law, Cabinet members serving as ex officio members of the Board of Directors of the Solar Energy and Energy Conservation Bank may delegate their directorial functions to subordinates, even though the legislation establishing the Bank does not expressly authorize such delegation.