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Opinions

1453 Results

Reconsidering State Reporting Requirements in Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Date of Issuance:

The word “State” in section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 encompasses all component agencies within a state. The mandatory reporting obligations in section 404(b)–(c) thus apply to all agencies within a “State” that participates in the Temporary Assistance for Needy Families and Supplemental Security Income programs subject to those requirements.

Our Office’s prior advice to the contrary, which narrowly construed the term “State” to refer only to the “state agencies administering the particular federally funded pro-gram,” 22 Op. O.L.C. 204, 205 (1998), is hereby withdrawn.

Constitutionality of Religious Restrictions on the Use of Federal Funds

Date of Issuance:

Federal statutory provisions and regulations that restrict federal funding based on either the religious status of a program provider or anticipated religious uses of the funds are not required under the Establishment Clause.

Because the statutory and regulatory religious restrictions applicable to programs administered by the Department of Health and Human Services discriminate based on anticipated religious use without any compelling governmental interest, they violate the Free Exercise Clause. Use-based religious restrictions on generally available federal funding programs are presumptively unconstitutional.

Constitutionality of the Foreign Service Grievance Board’s Oversight Authority

Date of Issuance:

The final decisionmaking authority of the Foreign Service Grievance Board violates the Appointments Clause of Article II because members of the Board are inferior officers who are not subject to the direction and supervision of a politically accountable Executive Branch official.

Those provisions of the Foreign Service Act that vest the Board with final decisionmaking authority cannot be constitutionally enforced. Instead, such provisions must be severed and final decisionmaking authority returned to the relevant presidentially accountable officer—the Secretary of State.

Application of the No TikTok on Government Devices Act to the TikTok USDS Joint Venture

Date of Issuance:

The No TikTok on Government Devices Act, Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022), prohibits from federal government technology versions of or successors to TikTok that are developed or provided by entities in which ByteDance Limited has a controlling ownership stake.

The version of TikTok operated by the TikTok U.S. Data Security Joint Venture does not fall within this prohibition because the Joint Venture functions independently of ByteDance, is majority-owned by American investors, and has revised the content-recommendation algorithm and cybersecurity program originally developed by ByteDance to insulate federal government information against the concerning security features that initially motivated the prohibition.

Department of Agriculture Preferences for “Socially Disadvantaged” Groups

Date of Issuance:

The race- and sex-based preference incorporated into 16 U.S.C. § 590c’s fee-waiver provision violates the Constitution’s guarantee of equal protection. This conclusion is consistent with prior Executive Branch determinations with respect to other race- and sex-based preferences in programs administered by the Department of Agriculture.

Several other statutory provisions relating to Department of Agriculture programs do not violate the Constitution’s guarantee of equal protection, either because they do not afford preferential treatment of any kind or because they are susceptible of race- and sex-neutral implementation.