Opinions
The President’s Authority to Order Export of Special Nuclear Material Under the Atomic Energy Act of 1954
The President has the power to order exports of special nuclear material under § 126 of the Atomic Energy Act of 1954, as amended, whenever he determines that “withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security.”
The full-scope safeguards criterion of § 128, which applies to exports of special nuclear material to non-nuclear weapon states, is binding only on the Nuclear Regulatory Commission. While the President may take into account the expression of congressional policy contained in § 128 in deciding to order an export under § 126, including its affordance of a grace period, he is not bound by it.
Presidential Authority To Use Funds From the United States Emergency Refugee and Migration Assistance Fund
The United States Emergency Refugee and Migration Assistance Fund, established by § 2(c) of the Migration and Refugee Assistance Act of 1962, is available to cover the administrative costs of processing a recent influx of Cuban migrants to the United States, even though they have not been classified as refugees and are thus ineligible for assistance under other programs authorized by the Act.
Congress intended the President to have discretion to use the Fund for any emergency situation involving unexpected refugee and migration needs, whenever and wherever it occurs.
Use of Law Enforcement Assistance Administration Program Grant Funds for Administrative Purposes
Funds originally awarded to states by the Law Enforcement Assistance Administration for programmatic purposes, under Title I of the Omnibus Crime Control and Safe Streets Act of 1968, may be used to supplement exhausted administrative funds.
A lump sum appropriation can be used for any purpose consistent with the purposes of the authorizing statute, and an agency’s representation to Congress as to how it proposes to allocate appropriated funds is legally binding on the agency only to the extent its proposed allocation finds its way into the language of the appropriation statute itself.
Constitutionality of Congress’ Disapproval of Agency Regulations by Resolutions Not Presented to the President
Section 431 of the General Education Provisions Act, 20 U.S.C. § 1232(d), which purports to authorize Congress, by concurrent resolutions that are not to be presented to the President for his approval or veto, to disapprove Department of Education regulations for education programs it administers, is unconstitutional.
Legislative veto devices deny the President his power under Article I, § 7 of the Constitution, to veto legislation, interfere with his duty under Article II, § 3, faithfully to execute the laws, and arrogate to Congress power to interpret existing law that is constitutionally reserved to the judicial branch.
The congressional disapproval provisions of the General Education Provisions Act, 20 U.S.C. § 1232(d), are severable from the substantive rulemaking authorities conferred by the Education Amendments of 1978, P.L. No. 95-561, 92 Stat. 2143.
The Attorney General must scrutinize with caution any claim that he or any executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt. At the same time, the Executive is required to enforce the Constitution and to preserve the integrity of its functions against unconstitutional encroachments.
Procedural Provisions for Imposing the Death Penalty in Pending Legislation
The following memorandum comments on proposed legislation to bring the federal death penalty provisions into compliance with the constitutional standards identified by the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972) and subsequent decisions. It identifies certain procedural provisions as likely to be subject to constitutional challenge, and indicates how the issues involved are likely to be resolved under existing case law. Among the issues discussed are: (1) whether the Constitution’s requirement of a unanimous jury extends to the sentencing phase of a capital case; (2) whether the jury’s consideration of mitigating factors may be limited; (3) whether evidence of aggravating factors may be admitted regardless of its admissibility under the rules of evidence; (4) whether the language specifying aggravating and mitigating factors is unconstitutionally vague; (5) whether the death penalty may be imposed for nonhomicidal crimes; and (6) whether appellate review only at the request of the defendant is an adequate safeguard against the random or arbitrary imposition of the death penalty.
Use of Military Personnel to Maintain Order Among Cuban Parolees on Military Bases
The prohibition in the Posse Comitatus Act, 18 U.S.C. § 1385, against using military personnel to execute the law, was not intended to restrict the military’s ability to maintain order among civilians on its own reservations.
Military personnel may take any steps deemed by the base commander to be reasonably necessary to ensure that Cuban parolees housed on a military base do not breach the peace of the base, and may restrict them to areas of the base specifically designated for their use; however, any claim of a parolee of a legal right to depart the base should be evaluated by non-military law enforcement personnel.
Constitutionality of Legislation Extending Federal Grants to Students at Nonpublic Schools
Views expressed in earlier opinion, that extension of Basic Educational Opportunity Grants to students enrolled in nonpublic elementary and secondary schools would violate Establishment Clause of the First Amendment, reconsidered and reaffirmed.
Emergency Authority of the Secretary of Health and Human Services Under 42 U.S.C. § 243(c)(2)
Under § 311 of the Public Health Service Act, 42 U.S.C. § 243(c)(2), which authorizes the Secretary of Health and Human Services, at the request of the appropriate state or local authority, to extend temporary assistance to states and localities in meeting health emergencies, the Public Health Service may provide relocation assistance to residents living near the Love Canal for a period not to exceed 45 days, for purposes of assessing and dealing with the health emergency in that area.
Department of Justice Views on the Bumpers Amendment to the Administrative Procedure Act
The following letter to the Chairman of the House Judiciary Committee, initially drafted in the Office of Legal Counsel at the request of the Assistant Attorney General for Legislative Affairs, presents the Department of Justice’s views on amendments to the Administrative Procedure Act’s (APA’s) provisions for judicial review of agency action proposed by Senator Bumpers. In essence, the so-called Bumpers amendment sought to achieve greater congressional control over federal agency actions by giving the federal courts broad and relatively undefined new p owers in reviewing agency rules. The letter points out that the proposed amendments to the APA would transfer to the federal courts responsibility for making policy choices now made by agencies, and that they would disrupt the regulatory process in major and unforeseeable ways.
Disclosure of Court-Authorized Interceptions of Wire Communications to Congressional Committees
An officer of the Department of Justice may disclose tapes of court-authorized interceptions of wire communications to congressional committees without a court order, as long as such disclosure is appropriate to the proper performance of his official duties.
Generally, providing Congress with information in order to help facilitate its constitutionally mandated legislative role is part of the legal obligation of the Executive Branch; however, it is also the Executive’s responsibility to determine when such disclosure would impede its performance of other responsibilities, and thus be inappropriate.