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Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office

Section 105(a) of title 3, U.S. Code, which authorizes the President to appoint employees in the White House Office “without regard to any other provision of law regulating the employment or compen-sation of persons in the Government service,” exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. § 3110.

Application of the Recommendations Clause to Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003

The Recommendations Clause bars Congress from enacting laws that purport to prevent the President from recommending legislation that he judges “necessary and expedient.”

The Recommendations Clause bars Congress from enacting laws that purport to require the President to recommend legislation even if he does not judge it “necessary and expedient.”

Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 contravenes the Recommendations Clause and may be treated as advisory and non-binding.

Applicability of the National Emergencies Act to Statutes That Do Not Expressly Require the President to Declare a National Emergency

The National Emergency Act’s coverage is not limited to statutes that expressly require the President to declare a national emergency, but rather extends to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act.

Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016

Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal year 2016, from denying the Department’s Office of the Inspector General (“OIG”) timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year.

Interpretation of Article 17 Bis of the US-EU Air Transport Agreement

Article 17 bis of the Air Transport Agreement Between the United States of America and the European
Community and Its Member States does not provide an independent basis upon which the United
States may deny a permit to an air carrier of a Party to the Agreement if that carrier is otherwise
qualified to receive such a permit.

Whether a Military Officer May Continue on Terminal Leave After He Is Appointed to a Federal Civilian Position Covered by 10 U.S.C. § 973(b)(2)(A)

An active duty military officer on terminal leave who meets the requirements of 5 U.S.C. § 5334a may continue on terminal leave status after his appointment or election to a position covered by 10 U.S.C. § 973(b)(2)(A).

Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

The statutes governing federal employment permit federal agencies to schedule part-time employees to work regularly scheduled workweeks of 33 to 39 hours.

The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week less than 40.

The Department of Justice Inspector General’s Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act

Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.

Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees

In the circumstances presented here, the organic statute of the Defense Nuclear Facilities Safety Board requires the Chairman to grant a requesting Board member access to written performance appraisals of Senior Executive Service employees.

In these circumstances, the Privacy Act does not bar the disclosure of those appraisals to the requesting Board member.

The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others

The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws.

The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws. 

The Department of Homeland Security’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion.

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