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Opinions
Department of Defense Response to Interlocutory Decision of Court of Appeals Regarding Statute Requiring Separation of Homosexual Service Members from Military
Following the interlocutory decision of a court of appeals regarding the statute requiring the separation of certain gay and lesbian service members from the military, the Department of Defense is not legally required to revise its administrative procedures and policies in a manner that might preclude separations within the circuit that would otherwise be mandated by the statute.
The Department of Defense is also not legally prohibited from acquiescing in the decision, although such a policy would appear to lack direct Executive Branch precedent and arguably would be in some tension with the Executive Branch’s usual practice of implementing and defending statutes that are subject to constitutional challenge.
Department of Justice Views on the Proposed Constitution Drafted by the Fifth Constitutional Convention of the U.S. Virgin Islands
The following memorandum opinion was initially drafted in the Office of Legal Counsel at the request of the Assistant Attorney General for Legislative Affairs. It analyzes several features of the proposed constitution of the U.S. Virgin Islands. The President attached a copy of this memorandum to his letter transmitting the proposed constitution to Congress, along with his comments, under Public Law 94-584.
Because it was difficult to discern a legitimate governmental purpose that would be rationally advanced by provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry, the memorandum opinion recommended that those provisions be removed from the proposed constitution.
The memorandum opinion concluded that the ten- and fifteen-year residence requirements for governors, lieutenant governors, and judges of the U.S. Virgin Islands raise constitutional concerns and recommended that consideration be given to shortening the duration of these requirements.
The memorandum opinion further concluded that the provision concerning territorial waters and marine resources appeared to be inconsistent with governing federal law and recommended that it be revised to remove any inconsistency and to make clear its recognition of Congress’s plenary control over these matters.
Authority of OPM to Direct Health Insurer Not to Enroll Individual Deemed Eligible by Employing Agency
Under both the regulations it has issued for administering the Federal Employees Health Benefits Act and its contract with the insurance carrier, the Office of Personnel Management has authority to direct a carrier not to enroll an individual in a health plan if OPM disagrees with the employing agency’s determination that the enrollment is permissible under federal law.
In the circumstances presented here, the law does not allow OPM to exercise its general administrative discretion in a manner that would permit such an enrollment to proceed.
Legal Effect of Federal Judge’s Order as Hearing Officer Under Court’s Employment Dispute Resolution Plan
The Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, who was acting in an administrative capacity under the Court’s employment dispute resolution plan when he issued an order to the Office of Personnel Management, lacked the authority to direct OPM in its administration of the Federal Employees Health Benefits Program. Accordingly, OPM is not legally required to comply with the directives in the order.
Use of “Unanticipated Needs” Funds to Pay the Security-Related Hotel Expenses of a Supreme Court Nominee
Payment of expenses related to Judge Sotomayor’s hotel stays in Washington, D.C. during the period between her nomination to the Supreme Court and the conclusion of her confirmation hearings falls within the President’s discretion under 3 U.S.C. § 108.
Census Confidentiality and the PATRIOT Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 does not require the Secretary of Commerce to disclose census information to federal law enforcement or national security officers where such disclosure would otherwise be prohibited by the Census Act.
State Procedures for Appointment of Competent Counsel in Post-Conviction Review of Capital Sentences
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, U.S. Code, 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.
If the Attorney General chooses to establish a federal minimum standard of counsel competency that state mechanisms must meet in order to qualify for certification, he should do so in a manner that still leaves the states some significant discretion in establishing and applying their own counsel competency standards.
These statutory provisions may reasonably be construed to permit the Attorney General to evaluate a state’s appointment mechanism—including the level of attorney compensation—to assess whether it is adequate for purposes of ensuring that the state mechanism will result in the appointment of competent counsel.
EPA Acceptance and Use of Donations Under the Clean Air Act
Section 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money.
Section 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.
President’s Receipt of the Nobel Peace Prize
The Emoluments Clause of the Constitution does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “King, Prince, or foreign State.”
The Foreign Gifts and Decorations Act does not bar the President from accepting the Nobel Peace Prize without congressional consent, because the Norwegian Nobel Committee is not a “unit of a foreign governmental authority,” an “international or multinational organization whose membership is composed of any unit of foreign government,” or an “agent or representative of any such unit or such organization.”
Applicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons
Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in 18 U.S.C. § 924(c)(1)(B)(i) applies.