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Opinions
Assertion of Executive Privilege Over Deliberative Materials Generated in Response to Congressional Investigation Into Operation Fast and Furious
Executive privilege may properly be asserted in response to a congressional subpoena seeking internal Department of Justice documents generated in the course of the deliberative process concerning the Department’s response to congressional and related media inquiries into Operation Fast and Furious.
Duty to Report Suspected Child Abuse Under 42 U.S.C. § 13031
Under 42 U.S.C. § 13031—a provision of the Victims of Child Abuse Act of 1990—all covered professionals who learn of suspected child abuse while engaged in enumerated activities and professions on federal land or in federal facilities must report that abuse, regardless of where the suspected victim is cared for or resides.
The fact that a patient has viewed child pornography may “give reason to suspect that a child has suffered an incident of child abuse” under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in the pornography.
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
Whether Reservists Must Exhaust Available Leave Under 5 U.S.C. § 6323(b) Before Taking Leave Under 5 U.S.C. § 6323(a)
A reservist who performs military service that qualifies for leave under 5 U.S.C. §§ 6323(a) and 6323(b) may elect to take leave under section 6323(a) without first using all of his or her available leave under section 6323(b).
Online Terms of Service Agreements with Open-Ended Indemnification Clauses Under the Anti-Deficiency Act
Traditional principles of contract law govern the standard for consent to an online terms of service agreement, and, as a result, consent to such an agreement turns on whether the web user had reasonable notice of and manifested assent to the online agreement.
A government employee with actual authority to contract on behalf of the United States violates the Anti-Deficiency Act by entering into an unrestricted, open-ended indemnification agreement on behalf of the government.
A government employee who lacks authority to contract on behalf of the United States does not violate the Anti-Deficiency Act by consenting to an agreement, including an agreement containing an unrestricted, open-ended indemnification clause, because no binding obligation on the government was incurred.
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.