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Opinions
Altering Puerto Rico’s Relationship with the United States Through Referendum
Legislation conditioning a change in Puerto Rico’s political relationship with the United States on the results of one or more referenda by the Puerto Rican electorate, without subsequent congressional action, would be constitutional, insofar as the referendum or referenda presented voters in the territory with a limited set of options specified in advance by Congress.
State and Local Deputation of Federal Law Enforcement Officers During Stafford Act Deployments
Where federal law enforcement officers have been deployed pursuant to the Stafford Act and are properly carrying out federal disaster relief in a local community, they may accept deputation under state or local laws that expressly authorize them to make arrests, where such arrests would bear a logical relationship to or advance the purposes of the Stafford Act deployment.
Use of FY 2009/2010 Funds by the General Services Administration to Assist the Department of Veterans Affairs in Acquiring Human Resources for FY 2012
The Department of Veterans Affairs properly obligated its Fiscal Year 2009/2010 funds when it and the General Services Administration signed an interagency agreement in August 2010, under which GSA agreed to assist the VA in obtaining a new contract for the provision of human resources.
GSA may use those funds in Fiscal Year 2012 to perform its obligations under the interagency agreement without running afoul of the requirement, developed by the Government Accountability Office, that servicing agencies acting under interagency agreements perform within a “reasonable time.”
State of Residence Requirements for Firearms Transfers
Section 922(b)(3) of title 18, which forbids federal firearms licensees from selling or delivering “any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in . . . the State in which the licensee’s place of business is located,” cannot be interpreted to define “reside in . . . the State” differently for citizens and aliens.
Recess Appointments Amid Pro Forma Senate Sessions
A twenty-day Senate recess may give rise to presidential authority to make recess appointments.
Congress’s provision for pro forma sessions during that twenty-day period does not have the legal effect of interrupting the recess for purposes of the Recess Appointments Clause.
In this context, the President has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and may exercise his power to make recess appointments.
Service Credit for Retirement Annuities of USPS Employees When USPS Has Not Made Required Contributions
The Office of Personnel Management may not address the United States Postal Service’s failure to make statutorily required retirement contributions by denying its employees accrued service credit under the Federal Employees’ Retirement System during their periods of qualifying federal employment.
Firearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act
The prohibition in 18 U.S.C. § 922(g)(5)(B) of shipping, transporting, possessing, or receiving any firearm or ammunition that has a connection to interstate commerce applies only to nonimmigrant aliens who must have visas to be admitted to the United States, not to all aliens with nonimmigrant status. The text of the statute forecloses the interpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and Explosives in an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens.
Potential Litigation Between the Department of Labor and the United States Postal Service
The Attorney General has authority under 39 U.S.C. § 409(g)(2) to allow the United States Postal Service to direct its own defense of a suit filed against it by the Department of Labor, alleging that USPS has violated a whistleblower provision of the Occupational Safety and Health Act of 1970.
USPS may contract with private counsel to conduct the litigation on USPS’s behalf, consistent with the Appointments Clause.
If the Attorney General opts to allow USPS to direct its own defense, the suit will fall within the constitutional authority of the Article III courts.
Whether the Wire Act Applies to Non-Sports Gambling
Interstate transmissions of wire communications that do not relate to a “sporting event or contest” fall outside the reach of the Wire Act.
Because the proposed New York and Illinois lottery proposals do not involve wagering on sporting events or contests, the Wire Act does not prohibit them.
Prohibition of Spending for Engagement of the Office of Science and Technology Policy with China
Section 1340(a) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, which purports to prevent the Office of Science and Technology Policy from using appropriated funds “to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company,” is unconstitutional as applied to certain activities undertaken pursuant to the President’s constitutional authority to conduct the foreign relations of the United States.
The plain terms of section 1340(a) do not apply to OSTP’s use of funds to perform its functions as a member of the Committee on Foreign Investment in the United States.