Opinions
Applicability of the Cargo Preference Act to the Transportation of Alaskan Oil to the Strategic Petroleum Reserve
Shipments of Alaskan oil for the Strategic Petroleum Reserve, made on commercial United States-flag ships as required by the Jones Act, 46 U.S.C. § 883, may be counted by the Department of Energy towards the 50% United States-flag cargo preference share required by the Cargo Preference Act, 46 U.S.C. § 1241(b).
The Cargo Preference Act, 46 U.S.C. § 1241(b), applies to both foreign and domestic cargoes procured by the United States, and is not limited to commerce in which United States-flag vessels face foreign competition. In addition, the Act is an “otherwise applicable Federal procurement statute” that may be waived by the Secretary of Energy under § 804(b) of the Energy Security Act, 10 U.S.C. § 7340(k).
Proposed Legislation to Grant Additional Power to the President’s Commission on Organized Crime
The President’s Commission on Organized Crime, a Presidential advisory committee with members from the Legislative and Judicial Branches, may be granted subpoena power without violating the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2. As statutory aids to its investigation, the Commission should also seek the power to administer oaths and to have false statements punished as perjury.
Constitutional and policy concerns militate against seeking independent authority for the Commission to enforce subpoenas by holding individuals in contempt, or to grant use immunity. The power to grant use immunity raises questions about the Commission’s advisory role and the propriety of service by members of the Legislative and Judicial Branches.
Restrictions on a Federal Appointee’s Continued Employment by a Private Law Firm
Federal conflict of interest laws, 18 U.S.C. §§ 202–209, and Department of Justice Standards of Conduct, 28 C.F.R. pt. 45, restrict the private practice of law by an attorney while employed by the Department of Justice.
If the attorney is hired as a “regular government employee,” i.e., expected to serve more than 130 days in any 365-day period, he will be prohibited from acting as an agent or attorney for anyone other than the United States in any matter in which the United States is a party or has a direct and substantial interest, and from receiving compensation for services rendered by himself or another in such matters. In addition, Department regulations prohibit the outside practice of law by Department of Justice employees, in the absence of a waiver.
If the attorney is hired as a “special government employee,” i.e., expected to serve 130 days or less in any 365-day period, he will be subject to representation and compensation restrictions only with respect to matters in which he has participated personally and substantially while in government or which are pending in the Department of Justice. The Department’s regulation prohibiting the outside practice of law does not apply to special government employees.
Under 18 U.S.C. § 208 all government employees must disqualify themselves from participating for the government in any matters in which they or their employers, among others, have a financial interest.
The President’s Power to Remove the Board of Directors of the Pennsylvania Avenue Development Corporation
In the absence of a clear legislative intent to the contrary, the President may remove his appointees at will. The Pennsylvania Avenue Development Corporation Act of 1972, 40 U.S.C. §§ 871 et seq., provides for appointment of a board of directors by the President, but is silent on removal.
Although the Act provides for a six-year term of office, a provision for a term, by itself, is not a restriction on the President’s removal authority, but rather, is a limitation on the period for which an appointee may serve without reappointment.
Nothing in the statutory scheme, legislative history, or in the nature of the Board’s functions, indicates an intent to restrict the President’s removal power. Therefore, the board of directors may be removed by the President at will.
Applicability of Section 504 of the Rehabilitation Act to Certain Governmental Entities
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified handicapped individuals in any program or activity conducted by any “Executive agency.” The legislative history of the 1978 Amendments to the Act makes clear that Congress intended § 504 to apply to all “agencies and instrumentalities” in “the Executive branch,” including independent regulatory agencies performing functions constitutionally committed to the Executive Branch. The term “Executive agency” as used in § 504 must be construed broadly to include all government entities which are not within either the legislative or judicial branches.
All of the entities listed in the memorandum are “Executive agencies” under § 504. These are: the Architectural and Transportation Barriers Compliance Board, the Civil Aeronautics Board, the Commission of Fine Arts, the Federal Deposit Insurance Corporation, the Federal Labor Relations Authority, the Federal Maritime Commission, the National Transportation Safety Board, the National Labor Relations Board, the Railroad Retirement Board, the Securities and Exchange Commission, the Federal Communications Commission, and the Administrative Conference of the United States.
The President’s Authority to Adjust Sugar Quotas
The President, pursuant to an executive agreement codified in the Tariff Schedules of the United States, Schedule 1, Part 10, Subpart A, Headnote 2, may reduce Nicaragua’s share of the annual quota of imported sugar on the basis of foreign policy concerns, if he finds that it is in the best interests of the United States and he gives “due consideration,” as defined by law, to Nicaragua’s interests in the United States sugar market.
Removal of Members of the Commission on Federal Laws for the Northern Mariana Islands
The basic presumption underlying the general law on the President’s removal authority is that the power to appoint implies the power to remove. Although Congress may alter this presumption by an express indication to limit the President’s removal authority, consistent with constitutional requirements, it has not done so in establishing the Commission on Federal Laws for the Northern Mariana Islands.
Members of the Commission are appointed by the President. The covenant establishing the Commission and its legislative history indicate no intention to restrict Presidential removal power. Accordingly, in the absence of any congressional intent to the contrary, the President has the authority to remove Commission members in his discretion, even though the Commission performs no executive functions and provides services exclusively to the Legislative Branch.
Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073
An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which makes it a federal offense to travel interstate to avoid a state felony prosecution, among other things, may be “prosecuted” only in the federal judicial district in which the original state crime was committed, or from which he fled, and “only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.”
Under Rule 40 of the FedeAl Rules of Criminal Procedure, an individual who is charged with a federal offense in one district and is apprehended in another may be brought back before the court in which the federal charges are pending against him. A court’s duty to order removal under Rule 40 is not dependent upon a subsequent federal prosecution.
The Department of Justice has interpreted the term “prosecution” in the Fugitive Felon Act to include all steps in the federal criminal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending, pursuant to Rule 40. The Department has also determined that the formal approval required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be subsequently pursued. Although nothing in the legislative history of the Fugitive Felon Act or relevant case law mandates this interpretation, it is not clear whether a court would require formal written approval before issuing a Rule 40 removal order.
Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant’s claim that he was constitutionally entitled to extradition under state law. However, the Fugitive Felon Act was not intended to supplant state extradition procedures, and federal removal procedures should not be used to accomplish a Fugitive Felon Act defendant’s return for prosecution or other appropriate disposition by the State. The policy considerations involved in making such a determination underscore the wisdom o f the Department’s requirement for formal approval for Rule 40 removal of Fugitive Felon Act defendants.
The cost of transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 may be paid out of funds appropriated for the authorized activities of the United States Marshal. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive’s return, although any monies received from a State must be deposited into the general fund of the Treasury.
Special Deputations of Private Citizens Providing Security to a Former Cabinet Member
The United States Marshals Service may not grant special deputy status to private citizens hired by a former cabinet member. By regulation, the Director of the Service may confer such status only upon selected federal officers or employees or state and local law enforcement officers.
Although the Attorney General may deputize private citizens, such appointments must further federal law enforcement functions within the authority of the Marshals Service. 28 U.S.C. § 569(c).
A federal law enforcement function sufficient to justify the appointment of special deputy marshals should be determined by the Marshals Service in the first instance, on the facts of each case in light of a number of different factors. In this case, no sufficient federal law enforcement function exists to permit the Attorney General to deputize these private security personnel.
Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities
In general, the Attorney General has plenary authority over the supervision and conduct of litigation to which the United States is a party. Courts have narrowly construed statutory grants of litigation authority to agencies to permit the exercise of such power only when the authorizing statutes are sufficiently clear and specific to ensure that Congress intended an exception to the general rule.
The litigation authority of the Equal Employment Opportunity Corporation (EEOC) is limited by statute to suits brought on behalf of private sector employees. 42 U.S.C. §§ 2000e-4 to 2000e-6. Furthermore, litigation authority for Title VII “pattern or practice” suits against State and local government entities is specifically vested in the Attorney General.
To permit the EEOC, an executive agency subject to the authority of the President, to represent on its own behalf a position in court independent of or contrary to the position of the United States, would be inconsistent with the constitutional principle of the unitary executive.