Opinions
Eligibility of a Dual United States Citizen for a Paid Position With the Department of Justice
Section 606 of the Treasury and General Government Appropriations Act of 1999 does not bar the Department of Justice from employing, in a paid position, a United States citizen who is also a citizen of another country.
Inapplicability of the Federal Vacancies Reform Act’s Reporting Requirements When PAS Officers Serve Under Statutory Holdover Provisions
There is no “vacancy” within the meaning of the Federal Vacancies Reform Act of 1998 when a presidentially appointed, Senate-confirmed officer continues to hold a position under a statutory holdover provision. Therefore, the holdover service is not reportable under the Act.
The Federalism Accountability Act
Provisions of the proposed Federalism Accountability Act that would alter the rules under which courts determine whether Congress has preempted state law by statute or authorized preemption by regulation could have far reaching and unintended consequences and should only be enacted if Congress determines that existing preemption doctrine has systematically frustrated congressional intent and that statutory rules of construction would produce better results.
Provisions of the bill that would instruct courts to resolve ambiguities in federal law in favor of preserving the authority of the states could frustrate the intentions of Congress and rulemaking agencies and should not be enacted.
Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion
The Attorney General may enter into settlements that would limit the future exercise of executive branch discretion when that discretion has been conferred upon the executive branch pursuant to statute and there exists no independent statutory limitation on the authority of the executive branch to so limit the future exercise of that discretion.
The Attorney General’s power to enter into settlements that would limit the future exercise of discretion that has been conferred upon the executive branch directly by the Constitution is constrained by the very constitutional provisions that vest discretionary authority in the President and therefore necessarily preclude the President from subjecting the exercise of that discretion to the control of the other party to a settlement or to judicial enforcement.
Article III of the Constitution does not preclude the executive branch from entering into judicially enforceable, discretion limiting settlements as a general matter or bar federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction. Article III limitations may arise, however, when, for example, the terms of the governmental promise are too amorphous to be susceptible to Article III federal judicial enforcement.
Although there may be sound policy reasons to reaffirm Attorney General Meese’s 1986 policy regulating the use of discretion limiting settlements, the concerns that led to its adoption do not, in general, amount to legally binding limitations on the scope of the executive branch’s power to settle litigation in a manner that may limit the future exercise of executive branch discretion.
Term of a Member of the Mississippi River Commission
The term of a member of the Mississippi River Commission is set by the statute governing his office, and the term dictated by the statute applies even though the language used in his nomination, confirmation, and commission calls for a different term.
Accessibility Guidelines and Federal Lease Renewals
The Architectural and Transportation Barriers Compliance Board may require, pursuant to the Architectural Barriers Act of 1968, that buildings first leased by federal agencies after 1976 be brought into compliance with current accessibility standards when the agency negotiates renewal of the lease.
Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information
Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which concerns the authority of federal, state, and local government officials and entities to disclose to the Immigration and Naturalization Service information regarding an individual’s citizenship or immigration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the disclosure of covered census information by census officials.
United States Marshals Service Obligation to Take Steps to Avoid Anticipated Appropriations Deficiency
Under the apportionment provisions of the Antideficiency Act, the United States Marshals Service has an affirmative obligation to take steps to avoid a deficiency in its Federal Prisoner Detention budget and any drastic curtailment of its prisoner detention services by reducing current expenditures and/or exploring alternative sources of funding that would not depend upon the receipt of additional funds from Congress.
Whether Government Reproduction of Copyrighted Materials is a Noninfringing “Fair Use”
Although government reproduction of copyrighted material for governmental use would in many contexts be a noninfringing fair use under section 107 of the Copyright Act of 1976, such government reproduction of copyrighted material does not invariably qualify as a “fair use.”
Applicability of Trade Secrets Act to Intra-Governmental Exchange of Regulatory Information
The disclosure to certain federal financial regulatory agencies of propriety information of the Office of Federal Housing Enterprise Oversight obtained from the finance institutions it regulates would be “authorized by law” within the meaning of the Trade Secrets Act and therefore would not violate that Act’s prohibitions against unauthorized agency disclosures of trade secrets or other confidential business information.