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Title Headnotes
Authority of the President to Prospectively Appoint a Supreme Court Justice

If the Senate votes to confirm Judge Ketanji Brown Jackson as an Associate Justice of the Supreme Court, the President may complete her appointment to the Supreme Court by signing her commission before Justice Breyer’s resignation takes effect.

Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment

A 2020 opinion of the Office of Legal Counsel that addressed the legal status of the proposed Equal Rights Amendment is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.

Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency

This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 624(c)(2). Having been asked to reconsider, we now conclude that section 12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.

Reappointment of a Member of the National Credit Union Administration Board

A member of the National Credit Union Administration Board initially appointed to a partial term is eligible for reappointment under 12 U.S.C. § 1752a(c) regardless of whether the member’s first appointment was for the remainder of a term that became vacant mid-term or that had no prior appointee.

Ways and Means Committee’s Request for the Former President’s Tax Returns and Related Tax Information Pursuant to 26 U.S.C. § 6103(f)(1)

Section 6103(f)(1) of title 26, U.S. Code, vests the congressional tax committees with a broad right to receive tax information from the Department of the Treasury. It embodies a long-standing judgment of the political branches that the tax committees are uniquely suited to receive such information. The committees, however, cannot compel the Executive Branch to disclose such information without satisfying the constitutional requirement that the information could serve a legitimate legislative purpose.

In assessing whether requested information could serve a legitimate legislative purpose, the Executive Branch must give due weight to Congress’s status as a co-equal branch of government. Like courts, therefore, Executive Branch officials must apply a presumption that Legislative Branch officials act in good faith and in furtherance of legitimate objectives.

When one of the congressional tax committees requests tax information pursuant to section 6103(f)(1), and has invoked facially valid reasons for its request, the Executive Branch should conclude that the request lacks a legitimate legislative purpose only in exceptional circumstances. The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President’s tax information. Under section 6103(f)(1), Treasury must furnish the information to the Committee.

Constitutionality of the Commissioner of Social Security’s Tenure Protection

The President may remove the Commissioner of Social Security at will notwithstanding the statutory limitation on removal in 42 U.S.C. § 902(a)(3).

The conclusion that the removal restriction is constitutionally unenforceable does not affect the validity of the remainder of the statute.

Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization

Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.

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.


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