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Jurisdiction and Procedure of the Office of the Assistant Solicitor General

This memorandum summarizes the authorities and internal operating rules for the Office of the Assistant Solicitor General, the predecessor entity within the Department of Justice to the Office of Legal Counsel. Although the litigation functions have largely been shifted to other components, many of the other practices and procedures described in this memorandum (in particular, preparation of opinions and review of executive orders) remain in place to the present day.

Presidential Authority to Order the Removal of the Original Engrossed Constitution From the Library of Congress

The custody of the original engrossed Constitution of the United States is now vested by statute in the Library of Congress, and no statute authorizes the President to interfere with that custody or to prescribe rules governing it. Therefore, an executive order authorizing the removal of the Constitution from the Library of Congress could neither compel such removal nor make it legal.

Presidential Appearance as a Character Witness

Apparently there is no precedent for a President to appear as a character witness in a civil, criminal, or other kind of legal proceeding.

The President’s Power in the Field of Foreign Relations

The first section of this memorandum canvasses the historical precedents that delineate the President’s prerogatives vis-à-vis Congress in foreign relations. These precedents tend to fall into one of two categories: those reflecting the Hamiltonian view that the President as Chief Executive has sole and unlimited authority to determine the nation’s foreign policy, and those reflecting the Madisonian view that Congress as the law-making body has primary authority to determine the nation’s foreign policy, which the President must take care to enforce.

The second section of this memorandum concludes that the power of the President to repel invasion is unquestioned. It would not be necessary to resolve the conflict between the Hamiltonian and Madisonian views in the event of an invasion, because statutes expressly provide that “whenever the United States shall be invaded or in imminent danger of invasion by any foreign nation,” the President may use the military and naval forces to repel such invasion.

The third section of this memorandum discusses the application of the Neutrality Act of 1937 to the Spanish Civil War and the China-Japan conflict.

Presidential Authority to Direct Departments and Agencies to Withhold Expenditures From Appropriations Made

Neither the Economy Act of 1933 nor any other statute authorizes the President to direct departments and agencies, either on a percentum basis or with reference to specific items, to withhold expenditures from appropriations made.

In the absence of legislative sanction, an executive order withholding expenditures from appropriations made would not be binding on the disbursing officers in the event that a department head or other authorized official should desire funds from the amount ordered to be withheld.

The President may request or direct the heads of the departments and agencies to attempt to effect such savings as may be possible without violation of a duty prescribed by law.

Censorship of Transmission of Trotzky Speech From Mexico

The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky.

Authority of the Federal Communications Commission to Deny a Broadcast License to a Newspaper Owner

The Federal Communications Commission does not have authority under the Communications Act of 1934 to refuse to grant broadcasting licenses on the ground that the ownership of the proposed facilities is in, or in common with, a newspaper.

It is doubtful that Congress has the power to broaden the Act to provide the FCC with such authority.

Such a provision would not violate the First Amendment clauses protecting the freedom of speech and of the press, but it would probably be held arbitrary and violative of the Fifth Amendment.

Filling the Vacancy Following the Death of the Secretary of War

The performance of the duties of the Secretary of War by an acting secretary may not extend beyond thirty days from the date of the death of the late Secretary of War, and it will be necessary for a new Secretary of War to be appointed in accordance with the provisions of the Appointments Clause of the Constitution to perform those duties after that date.

There is some doubt whether the duties specifically imposed by Congress upon the Secretary of War may be performed by the President, as Commander in Chief of the Army, or by any other person not serving as the Secretary of War.

Removal of the Assistant Secretary of Commerce by the Appointment of a Successor

The removal from office of the Assistant Secretary of Commerce can be properly effected merely by the appointment of a successor by the President with the advice and consent of the Senate.

Legality of an Executive Order Requiring Executive Departments and Independent Establishments to Make Monthly Financial Reports

Although the regulations prescribed by the proposed executive order, requiring executive departments and independent establishments to provide the Secretary of the Treasury with monthly financial reports, are not expressly authorized by any statute, the President has authority to issue the order by virtue of his inherent power as Chief Executive.

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