Opinions
Pocket Veto Clause
The wording of the Pocket Veto Clause of the Constitution that a bill shall not become law if “the Congress by their Adjournment prevent its Return” by the President—expresses the assumption that adjournments ordinarily make the return of a bill impossible, but the clear structural rule established by the Clause applies to all adjournments in the constitutional sense, even if Congress has taken measures to make the return of a bill possible.
The drafting history of the Pocket Veto Clause shows an intent to avoid excessive periods of uncertainty about the fate of bills passed by Congress.
Ordinary legislation expressing Congress’ view about the category of adjournments covered by the Pocket Veto Clause is inappropriate, because such legislation cannot change the meaning of the constitutional terms.
Presidents Ford and Carter may have purported to return bills that, under the Constitution, could only be pocket-vetoed. Thus, the bills they believed they had return-vetoed may in fact have been pocket-vetoed instead. As far as we know, however, this has no practical effect.
Congress can avoid application of the Pocket Veto Clause during brief adjournments by scheduling presentment of bills so that the tenth day after presentment does not fall during an adjournment of either House that is longer than three days.
Constitutional Limits on “Contracting Out” Department of Justice Functions under OMB Circular A-76
Litigation on behalf of the United States must be conducted or closely supervised by officers of the United States who have been appointed in conformity with the Appointments Clause and who are under the supervision of the Attorney General and the President.
Certain program analyst, program monitor and historical research support positions in the Department of Justice do not involve governmental authority that can only be exercised by officers of the United States, but instead involve information gathering and reporting duties which may constitutionally be performed by private parties on a contract basis.
Prohibitions and Penalties Under Section 582 of the 1990 Foreign Operations, Export Financing, and Related Programs Appropriations Act
Section 582 of the 1990 Foreign Operations, Export Financing, and Related Programs Appropriations Act prohibits only the following: an explicit quid pro quo arrangement pursuant to which both the United States and another government or person that is to receive financial assistance from the United States agree that receipt of the assistance is expressly conditioned upon the recipient undertaking an action that the United States would be specifically prohibited by United States law from carrying out.
Neither violation of section 582, nor conspiracy to violate section 582, is punishable as a criminal offense.
Application of Conflict of Interest Rules to Members of Department of Health and Human Services Advisory Committee
Neither the law nor the Department of Health and Human Services’ Standards of Conduct constrain a member of the Advisory Council on Social Security from lobbying the Department on behalf of private clients with respect to policy issues that are being addressed by the Council. Whether to retain the prudential restrictions barring such lobbying that have been imposed by the Department’s ethics official is a discretionary issue for the Secretary.
Authority to Use Funds from Fiscal Year 1990 Appropriation to Cover Shortfall from Prior Award Year’s Pell Grant Program
The Pell Grant Program’s lump sum appropriation for fiscal year 1990 may be used to pay the deficiencies in the program’s funding for the 1989–90 award year.
Application of Federal Advisory Committee Act to Editorial Board of Department of Justice Journal
An outside advisory or editorial board for a new Department of Justice publication would be subject to the Federal Advisory Committee Act if it deliberated as a body in order to formulate recommendations, but would not be subject to FACA if each individual member reviewed submissions to the journal and gave his or her own opinion about publication.
Presidential Authority to Extend Deadline for Submission of an Emergency Board Report Under the Railway Labor Act
The President may require an Emergency Board under the Railway Labor Act to submit its report before the statutory deadline, but he may not extend that thirty-day deadline unless the parties involved have entered into a side agreement extending the status quo period during which they refrain from self-help.
There is substantial doubt as to whether a court would conclude that such a side agreement between the parties not to resort to self-help is equitably enforceable under the Norris-LaGuardia Act.
The President does not have the authority to impose a second status quo period by convening a second Emergency Board or reconvening the original Board.
Issues Raised by Foreign Relations Authorization Bill
Provision in foreign relations authorization bill conditioning an authorization for appropriations on the requirement that an entity controlled by the legislative branch be included at Conference on Security and Cooperation in Europe negotiations would unconstitutionally infringe on the President’s exclusive authority to conduct negotiations on behalf of the United States abroad and unconstitutionally deprive the President of his constitutionally mandated control over the disclosure of the content of negotiations.
The unconstitutional condition may be severed from the remainder of the provision authorizing appropriations and the rest of the bill.
At least in the context of legislation that infringes on the separation of powers, the President has the constitutional authority to refuse to enforce a statutory provision that he believes is unconstitutional. Because this unconstitutional requirement is severable, the President may enforce the remainder of the provision, while refusing to enforce the unconstitutional portion.
Congressional Request for Appointment Calendars of a Former GSA Official
Under General Services Administration records retention regulations, the appointment calendars of current and former GSA officials are personal records and personal property, rather than official records and government property. Accordingly, under the facts presented, the GSA should return a former GSA official’s calendars to him. The former official, not the GSA, is responsible for responding to a congressional committee’s request for the calendars.
Authority of the Federal Financing Bank to Provide Loans to the Resolution Trust Corporation
The Resolution Trust Corporation is a “federal agency” within the meaning of the Federal Financing Bank Act of 1973, and the RTC is authorized to issue financial obligations under the Federal Home Loan Bank Act. Accordingly, under the FFB Act the Federal Financing Bank is authorized to provide loans to the RTC.