Opinions

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Title Headnotes
The Attorney General’s Authority in Certifying Whether a State Has Satisfied the Requirements for Appointment of Competent Counsel for Purposes of Capital Conviction Review Proceedings

Statutory provisions originally enacted as section 107(a) of the Antiterrorism and Effective Death Penalty Act of 1996, and now codified as chapter 154 of title 28, may be construed to permit the Attorney General to exercise his delegated authority to define the term “competent” within reasonable bounds and independent of the counsel competency standards a State itself establishes, and to apply that definition in determining whether to certify that a state is eligible for special procedures in federal habeas corpus proceedings involving review of state capital convictions.

Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations

Subsection 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money.

Subsection 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal property (other than money), such as an automobile, so long as the property in question would be received for use directly in the anti-pollution research authorized by section 104.

Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize

The Emoluments Clause of the Constitution does not apply to the President’s receipt of the Nobel Peace Prize.

The Foreign Gifts and Decorations Act does not bar the President from accepting the Peace Prize without congressional consent.
 

Whether the Ten-Year Minimum Sentence in 18 U.S.C. § 924(c)(1)(b)(i) Applies to Semiautomatic Assault Weapons

Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in section 924(c)(1)(B)(i) of title 18 applies.

Applicability of Section 163 of Division B of Public Law 111-68 to Payments in Satisfaction of Pre-existing Contractual Obligations

Section 163 of Division B (“Continuing Appropriations Resolution, 2010”) of Public Law 111-68 does not direct or authorize the Department of Housing and Urban Development to breach a pre-existing binding contractual obligation to make payments to the Association of Community Organizations for Reform Now or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.

Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects

The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President’s will.

Constitutionality of Mandatory Registration of Credit Rating Agencies

The Administration’s proposal for mandatory registration of credit rating agencies, which would include an exemption designed to address First Amendment concerns, would satisfy the First Amendment’s requirements.

Authority of the Former Inspector General of the Federal Housing Finance Board to Act as Inspector General for the Federal Housing Finance Agency

The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as Inspector General for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008.

The former Federal Housing Finance Board Inspector General cannot appoint employees to the Office of Inspector General for the Federal Housing Finance Agency.

Permissibility of Small Business Administration Regulations Implementing the Historically Underutilized Business Zone, 8(a) Business Development, and Service-Disabled Veteran-Owned Small Business Concerns Programs

The Small Business Administration’s regulations governing the interplay among the Historically Underutilized Business Zone Program, the 8(a) Business Development Program, and the Service-Disabled Veteran-Owned Small Business Concern Program constitute a permissible construction of the Small Business Act.

The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration’s regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns.

The Office of Legal Counsel’s conclusion that the Small Business Administration’s regulations are reasonable is binding on all Executive Branch agencies. 

Legality of Intrusion-Detection System to Protect Unclassified Computer Networks in the Executive Branch

Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws.

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