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Opinions

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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.

Responsibility for Electronic Presidential Records on Hardware of the Executive Office of the President After a Presidential Transition

Under the Presidential Records Act, the Archivist of the United States assumes responsibility for the custody and control of, and access to, an outgoing President’s electronic presidential records that temporarily remain on Executive Office of the President hardware after the end of the outgoing President’s term.

Religious Seasonal Decorations in Federal Government Buildings

The Public Buildings Service of the General Services Administration may, consistent with fiscal law and the First Amendment’s Establishment Clause, broaden its policy governing the purchase and display of seasonal decorations in the public spaces of federal properties to allow for the display of religiously significant seasonal decorations that are reasonably calculated to improve employee morale.

Home Confinement of Federal Prisoners After the COVID-19 Emergency

The Coronavirus Aid, Relief, and Economic Security Act authorizes the Director of the Bureau of Prisons to place prisoners in home confinement only during the Act’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).

BOP’s authority under 18 U.S.C. § 3621(a) and (b) does not provide an alternative basis for authorizing continued home confinement for prisoners ineligible for continuing home confinement under section 3624(c)(2).

Sex Segregation in Youth Rodeo Events Under Title IX Regulations

The maintenance of separate boys and girls divisions in rodeo competitions offered by the South Dakota 4-H Youth Development Program is authorized by the competitive-skill exception contained in the Title IX implementing regulation at 7 C.F.R. § 15a.450(b), but not by the contact-sport exception contained in that regulation.

Congressional Oversight of the White House

Congressional oversight of the White House is subject to greater constitutional limitations than oversight of the departments and agencies of the Executive Branch, in light of the White House staff’s important role in advising and assisting the President in the discharge of his constitutional responsibilities, the need to ensure the independence of the Presidency, and the heightened confidentiality interests in White House communications.

Executive Branch Participation in the Cyberspace Solarium Commission

In our tripartite constitutional structure, any commission performing federal functions must reside within a single one of the three branches of government.

The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity, because congressional appointees compose the majority of the Commission’s membership, the Commission exercises the investigative authorities of a congressional committee, and the Commission’s ultimate mission is to advise Congress.

The Executive Branch officials serving on the Commission should act with one unified voice, subject to executive supervision, in advising the Commission and should maintain the confidentiality of Executive Branch information when sharing their information and expertise with the Commission.

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