Opinions

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Title Headnotes
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.

Eligibility of a Retired Military Officer for Appointment as Administrator of the National Aeronautics and Space Administration

A retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—is eligible for appointment as Administrator of the National Aeronautics and Space Administration.

Constitutionality of the Matthew Shepard Hate Crimes Prevention Act

The two new criminal prohibitions created in the Matthew Shepard Hate Crimes Prevention Act would be constitutional.

Withdrawal of Office of Legal Counsel Opinion

One previous opinion of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency is withdrawn and no longer represents the views of the Office.

Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act

Section 7054 of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act, which purports to prohibit all funds made available under title I of that Act from being used to pay the expenses for any United States delegation to a specialized UN agency, body, or commission that is chaired or presided over by a country with a government that the Secretary of State has determined supports international terrorism, unconstitutionally infringes on the President’s authority to conduct the Nation’s diplomacy, and the State Department may disregard it.

Validity of Statutory Rollbacks as a Means of Complying With the Ineligibility Clause

Where a salary increase for an executive office would otherwise create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by legislation rolling back the salary of the office before the appointment.

Constitutionality of the Ronald Reagan Centennial Commission Act of 2009

Provisions in the Ronald Reagan Centennial Commission Act of 2009 establishing that six of eleven commissioners of the Ronald Reagan Centennial Commission would be members of Congress, appointed by congressional leadership, would raise concerns under the Appointments Clause, the Ineligibility Clause, and the separation of powers.

Withdrawal of Office of Legal Counsel CIA Interrogation Opinions

Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.

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