Opinions

Opinions

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Applicability of Section 410 of the Amtrak Reform and Accountability Act of 1997 to the Gateway Development Commission

New Jersey’s proposed diversion of a portion of its annual payment to Amtrak to a bridge project subject to the authority of the Gateway Development Commission, an interstate entity established by New York and New Jersey, would violate section 410 of the Amtrak Reform and Accountability Act of 1997, which prohibits States from carrying out an interstate compact by using state or federal funds made available for Amtrak.

House Committees’ Authority to Investigate for Impeachment

The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s power of impeachment.

The House had not authorized an impeachment investigation in connection with impeachment-related subpoenas issued by House committees before October 31, 2019, and the subpoenas therefore had no compulsory effect.

The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal status of those subpoenas, because the resolution did not ratify or otherwise address their terms.

Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security

The President may direct the Secretary of Commerce not to publish a confidential report to the President under section 232 of the Trade Expansion Act of 1962, notwithstanding a recently enacted statute requiring publication within 30 days, because the report falls within the scope of executive privilege and its disclosure would risk impairing ongoing diplomatic efforts to address a national-security threat and would risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat.

Ratification of the Equal Rights Amendment

Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.

Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.

Designating an Acting Director of National Intelligence

In designating an Acting Director of National Intelligence, the President could choose anyone who is eligible under the Federal Vacancies Reform Act of 1998, even though 50 U.S.C. § 3026(a)(6) specifies that the Principal Deputy DNI “shall act for” the DNI during a vacancy.

The President could designate the Senate-confirmed Director of the National Counterterrorism Center as the Acting DNI, but that person could not perform the duties of the NCTC Director during his time as the Acting DNI because no person may “simultaneously serve” as NCTC Director and “in any other capacity in the executive branch,” 50 U.S.C. § 3056(b)(2).

Because the incumbent NCTC Director was rendered unable to perform the duties of that office while serving as Acting DNI, the NCTC Director’s first assistant would, in the absence of an alternative presidential designation, automatically serve as Acting NCTC Director under the Vacancies Reform Act.

Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context

Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify about matters that potentially involve information protected by executive privilege without the assistance of agency counsel. Congressional subpoenas that purport to require executive branch witnesses to appear without agency counsel in these circumstances are legally invalid and are not subject to civil or criminal enforcement.

“Urgent Concern” Determination by the Inspector General of the Intelligence Community

A complaint from an intelligence-community employee about statements made by the President during a telephone call with a foreign leader does not involve an “urgent concern,” as defined in 50 U.S.C. § 3033(k)(5)(G), because the alleged conduct does not relate to “the funding, administration, or operation of an intelligence activity” under the authority of the Director of National Intelligence. As a result, the statute does not require the Director to transmit the complaint to the congressional intelligence committees.

Religious Restrictions on Capital Financing for Historically Black Colleges And Universities

The restriction in 20 U.S.C. § 1066c(c) on the Department of Education’s authority to guarantee loans for capital improvements at historically black colleges and universities “in which a substantial portion of its functions is subsumed in a religious mission” violates the Free Exercise Clause of the First Amendment.

The remaining restrictions in the statute can, and must, be construed to avoid further conflict with the Free Exercise Clause. We thus read section 1066c(c) and 20 U.S.C. § 1068e(1) to deny loans under the program only for facilities that are predominantly used for devotional religious activity, or for facilities that are part of an HBCU, or part of a department or branch of an HBCU, that offers only programs of instruction devoted to vocational religious education.

Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President

The Assistant to the President and Senior Counselor to the President is absolutely immune from compelled congressional testimony in her capacity as a senior adviser to the President.

Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f)

The provisions in 26 U.S.C. § 6103 protecting confidentiality of tax returns prohibited the Department of the Treasury from complying with a request by the Chairman of the House Ways and Means Committee for the President’s tax returns. The text of section 6103(f), the statutory exception under which the request was made, does not require the Committee to state any purpose for its request. But Congress could not constitutionally confer upon the Committee the right to compel the Executive Branch to disclose confidential information without a legitimate legislative purpose. Under the facts and circumstances, the Secretary of the Treasury reasonably and correctly concluded that the Committee’s asserted interest in reviewing the Internal Revenue Service’s audits of presidential returns was pretextual and that its true aim was to make the President’s tax returns public, which is not a legitimate legislative purpose.

Because section 6103(a) prohibited the disclosure of the tax returns sought in the Chairman’s request, as well as in the corresponding subpoenas, the Department of the Treasury’s refusal to provide the information did not violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192.

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