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Opinions
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.
GAO Access to National Directory of New Hires
Title 42, section 653(l) of the U.S. Code prohibits the Department of Health and Human Services from providing the Government Accountability Office access to personally identifiable information from the National Directory of New Hires, notwithstanding GAO’s general access provision, 31 U.S.C. § 716(a).
Extending the Term of the FBI Director
It would be constitutional for Congress to enact legislation extending the term of Robert S. Mueller, III, as Director of the Federal Bureau of Investigation.
Security Clearance Adjudications by the DOJ Access Review Committee
The notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act generally applies when the Department of Justice intends to use information obtained from electronic surveillance against an aggrieved person in an adjudication before the Access Review Committee concerning the Department’s revocation of an employee’s security clearance.
Compliance with the notification requirement in section 106(c) of the Foreign Intelligence Surveillance Act in particular Access Review Committee adjudications could raise as-applied constitutional questions if such notice would require disclosure of sensitive national security information protected by executive privilege.
Electronic Presentment and Return of Bills
The use of electronic means of presentment and return of bills is constitutionally permissible.
The statutes governing the presentment process could be read as encompassing electronic transmission, but that is not necessarily the most natural reading. In light of the novelty of electronic presentment and return, and the need to ensure that the President and Congress—as well as the public—share a common understanding of the means by which these fundamental steps in the lawmaking process may be carried out, we recommend that, before electronic presentment and return might be used, 1 U.S.C. §§ 106, 106a, and 107 be amended to provide expressly for the permissibility of electronic presentment and that the President and Congress reach an agreement, whether by statute or other means, concerning the permissibility of electronic return of bills.
Authority to Employ White House Officials Exempt from Annual and Sick Leave Act During Appropriations Lapse
White House officials who are exempt from the Annual and Sick Leave Act pursuant to 5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in the appropriations for their salaries.
Authority to Use Military Force in Libya
The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest.
Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.
Obligation of Federal Agencies to Pay Stormwater Assessments Under the Clean Water Act
Section 313(c)(2)(B) of the Clean Water Act does not impose a specific-appropriation requirement for the payment of stormwater assessments. Federal agencies may pay appropriate stormwater assessments from annual—including current—lump-sum appropriations.