Opinions
Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency
This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 624(c)(2). Having been asked to reconsider, we now conclude that section 12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.
Reappointment of a Member of the National Credit Union Administration Board
A member of the National Credit Union Administration Board initially appointed to a partial term is eligible for reappointment under 12 U.S.C. § 1752a(c) regardless of whether the member’s first appointment was for the remainder of a term that became vacant mid-term or that had no prior appointee.
Ways and Means Committee’s Request for the Former President’s Tax Returns and Related Tax Information Pursuant to 26 U.S.C. § 6103(f)(1)
Section 6103(f)(1) of title 26, U.S. Code, vests the congressional tax committees with a broad right to receive tax information from the Department of the Treasury. It embodies a long-standing judgment of the political branches that the tax committees are uniquely suited to receive such information. The committees, however, cannot compel the Executive Branch to disclose such information without satisfying the constitutional requirement that the information could serve a legitimate legislative purpose.
In assessing whether requested information could serve a legitimate legislative purpose, the Executive Branch must give due weight to Congress’s status as a co-equal branch of government. Like courts, therefore, Executive Branch officials must apply a presumption that Legislative Branch officials act in good faith and in furtherance of legitimate objectives.
When one of the congressional tax committees requests tax information pursuant to section 6103(f)(1), and has invoked facially valid reasons for its request, the Executive Branch should conclude that the request lacks a legitimate legislative purpose only in exceptional circumstances. The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President’s tax information. Under section 6103(f)(1), Treasury must furnish the information to the Committee.
Constitutionality of the Commissioner of Social Security’s Tenure Protection
The President may remove the Commissioner of Social Security at will notwithstanding the statutory limitation on removal in 42 U.S.C. § 902(a)(3).
The conclusion that the removal restriction is constitutionally unenforceable does not affect the validity of the remainder of the statute.
Treasury’s Cash Balance and the August 1, 2021 Debt Limit
The Bipartisan Budget Act of 2019 suspended the debt limit through July 31, 2021. Starting August 1, 2021, that Act will raise the debt limit by an amount equal to certain new debt issued since passage of the Act. New debt counts toward the forthcoming debt limit only if it “was necessary to fund a commitment incurred pursuant to law by the Federal Government that required payment before August 1, 2021.” This provision does not prevent the Department of the Treasury from applying to the forthcoming debt limit the debt it plans to issue to provide a prudential buffer of funds raised for pre-August 1 expenses, even if some or all of that buffer remains unspent at the end of the debt-limit suspension.
Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization
Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.
Authority of the Special Inspector General for Pandemic Recovery to Oversee Programs Established Under the CARES Act
The jurisdiction of the Special Inspector General for Pandemic Recovery is limited to oversight of programs established under the Coronavirus Economic Stabilization Act of 2020.
Preemption of State and Local Requirements Under a PREP Act Declaration
The Public Readiness and Emergency Preparedness Act and the COVID -19 declaration issued by the Secretary of Health and Human Services under that Act preempt state or local requirements, such as state licensing laws, that would prohibit or effectively prohibit qualifying state-licensed pharmacists from ordering and administering FDA-approved COVID -19 tests and FDA-authorized or FDA-licensed COVID -19 vaccines.
Military Support for Customs and Border Protection Along the Southern Border Under the Posse Comitatus Act
The Department of Defense’s proposed use of military personnel to provide limited assistance with respect to certain Customs and Border Protection inspection and observation functions along the southern border of the United States is permissible under the Posse Comitatus Act and applicable regulations.
Application of the Hyde Amendment to Federal Student-Aid Programs
The Hyde Amendment in the Department of Education’s annual appropriations legislation for fiscal years 2020 and 2021 applies to the funding in that legislation for Federal Pell Grants, Federal Supplemental Opportunity Grants, Scholarships for Veteran’s Dependents, and Federal Work-Study Programs. But additional sources of federal funding for these programs provided in other statutes are not subject to the Hyde Amendment.
Federal student-aid funding subject to the Hyde Amendment remains so after it is paid to higher-education institutions for disbursement. These institutions must therefore comply with the Hyde Amendment in expending such funds.