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.