Opinions
Determination of Wage Rates Under the Davis-Bacon and Service Contract Acts
The Secretary of Labor is required to determine “prevailing” wage rates under the Davis-Bacon and Service Contract Acts with reference to an objective standard of predominance or currency in a given locality. It is proper to define the prevailing rate in terms of the lowest rate only where the lowest rate is also that which occurs with the greatest frequency. Where no single wage rate is predominant, it would ordinarily be permissible for the Secretary to use an average.
The minimum wage rate required by law to be included in all contracts subject to the Davis-Bacon and Service Contract Acts must be at least the prevailing rate as determined by the Secretary of Labor.
In the absence of a statutory definition of a term, one must look to the common understanding of the word, and to the legislative history and purpose of the statute generally. In addition, a presumption of correctness may be accorded the longstanding administrative interpretation of a term.
Constitutionality of Regulations Requiring Prepublication Clearance of Books by Former Iranian Hostages
Under the Supreme Court’s holding in Snepp v. United States, 444 U.S. 507 (1980), the broad prepublication clearance requirements in regulations of the International Communications Agency (ICA) would be held unenforceable through judicial process in a wide variety of applications, notably insofar as they apply to previously disclosed information or to the expression of personal opinions by persons who do not regularly have access to classified information.
The Supreme Court is not likely to uphold a prior restraint on publication by ICA employees in the absence of some powerful showing that substantial and specific harm to the United States would probably result if the publication were permitted. The expression of personal opinion not based on classified information would not satisfy this test.
While the issue is not free from doubt, a strong argument can be made that disciplinary action against an employee based on the need for a foreign policy free from internal dissension in the Foreign Service would not be constitutionally impermissible, particularly if the employee maintained responsibilities at a highly visible level. However, the courts might find discipline involving discharge appropriate only if the statements ultimately made severely and irreparably impaired an individual’s ability to perform some services as an employee.
Legality Under Anti-Lottery Laws of Amendments to Simultaneous Oil and Gas Leasing Procedures
The amendment of the Simultaneous Oil and Gas (SOG) Leasing Procedures to clarify the discretion of the Secretary of the Interior to decline to award leases to applicants whose names are drawn under the SOG procedures, provides some additional support for the conclusion in the April 7, 1980, OLC memorandum that the SOG program is not a prohibited lottery within the scope of 18 U.S.C. §§ 1302 and 1304.
Serious legal difficulties would arise if the SOG regulations were amended to establish a multiple filing system which would give preference to those willing and able to pay the most for lease opportunities, because of the statutory requirement that oil and gas leases be awarded not to the highest bidder but to the first qualified person making application to hold a lease. Moreover, insofar as a multiple filing system would tax lease applicants by making their chances depend on the size of their payments, and potentially enrich the government, it might be considered a violation of the anti-lottery laws.
In the absence of a specific statutory limitation on the amount which may be charged each applicant for a lease, the Secretary is authorized to increase the present fee to a level that more accurately reflects the actual cost of administering the system.
Negotiated Sale of Foreign Gifts to Members of Congress
The General Services Administration is authorized to negotiate the sale of gifts from foreign governments to their original recipients, including Members of Congress, notwithstanding the general prohibition against public contracts with Members of Congress in 18 U.S.C. §§ 431 and 432.
Payment of Moving Expenses as Supplementation of a Government Officer’s Salary
Private employer’s payment of prospective federal officer’s moving expenses does not constitute a supplementation of his federal salary in violation of 18 U.S.C. § 209, where the payment is contractually or routinely paid to departing employees, where the purpose of the payments is other than to compensate federal employment, and where the entitlement and amount of the payment do not favor federal employment.
While neither the prospective officer’s continued affiliation with his private employer, nor its payment of his moving expenses, create an immediate or anticipated conflict of interest with his governmental duties, the Justice Department’s Standards of Conduct might require that he disqualify himself from any official participation in a matter affecting his private employer’s interests.
Congressional Authority to Require the States to Lodge Federal Pre-Trial Detainees
Congress has power to provide for the housing of federal pre-trial detainees, whether by authorizing the construction of federal facilities or arranging with the states to use state facilities; however, it does not follow that Congress could require unwilling states to house federal prisoners, particularly where state reluctance stems from overcrowding in state and local detention facilities.
The Tenth Amendment limits Congress’ power to enact legislation which interferes with the traditional way in which local governments have arranged their affairs; moreover, principles of federalism limit Congress’ power to require state officers to perform federal functions.
Historically, Congress has been reluctant to require states to house federal prisoners, although it is not clear whether this reluctance has been motivated by a belief that Congress lacked power to do so by political considerations.
A statutory scheme by which Congress would induce, rather than coerce, the states to house federal prisoners through exercise of its spending power is more likely to be held constitutional, although here too there are limits on Congress’ power to impose coercive conditions on the states’ receipt of federal funds.
Payment of Legal Fees in Connection With a Cabinet Member’s Confirmation Hearings
Legal expenses incurred in connection with a Cabinet member’s Senate confirmation hearings would be an appropriate subject of payment from funds authorized under the Presidential Transition Act, and may also, consistent with that Act, be paid from private sources.
Payment of legal fees incurred in connection with the confirmation process by a private foundation would not be considered to supplement a Cabinet member’s salary in violation of 18 U.S.C. § 209, since the purpose and value of the services rendered were directed primarily to the government.
Constitutionality of Repealing the Employee Protection Provisions of the Regional Rail Reorganization Act
Congress may modify or repeal altogether the income protection program enacted by Title V of the Regional Rail Reorganization Act of 1973, under which the Consolidated Rail Corporation (Conrail) was given responsibility for paying employee benefits under existing collective bargaining agreements between its five component railroads and their unions. Such action would not result in any constitutionally compensable “taking” from railroad employees, or impair any private contract rights in violation of the Due Process Clause.
Railroad employees have no present vested interest in the benefits specified in Title V whose abrogation or modification would be restricted by the Fifth Amendment, since by their nature those benefits are entirely prospective.
Congress may interfere with vested property rights, or impair a contract between two private parties, as long as the results are not harsh and oppressive, in light of the governmental interests served by the legislation. Moreover, a legislative measure interfering with contract rights is more likely to be held constitutional if it is one of a long series of actions regulating the business in question.
One Congress cannot legislate so as to divest itself or subsequent Congresses of the right and responsibility to exercise the full legislative authority to enact laws for the common good.
Constitutionality of Statute Imposing Death Penalty for Attempted Assassination of the President
Under applicable Supreme Court precedent, a statute making it a capital offense to attempt to assassinate the President would be unlikely to survive constitutional challenge, unless it were narrowly drawn to include only cases in which the defendant’s intent was unambiguous and the attempt nearly successful.
Both historical precedent and contemporary practice in this and other countries suggest that death would ordinarily be regarded by a court as an excessive punishment for the crime of attempted murder. On the other hand, the unique position of the President in our constitutional system, coupled with the threat to the national security which an assault on his person would constitute, may warrant subjecting the crime of attempted assassination of the President to the death penalty.
Amendment of the Farmers Home Administration Disaster Loan Program
Under applicable provisions of the Administrative Procedure Act, amendments to regulations governing the disaster loan program administered by the Farmers Home Administration (FmHA) can be made effective immediately, without giving the public a prior opportunity to comment, if the FmHA finds for “good cause” that notice and public procedure thereon would be “impracticable, unnecessary, or contrary to the public interest.”
It is for the rulemaking agency to determine whether there is “good cause” for dispensing with notice and comment; however, if the facts are such that the authorized administrative purpose would be frustrated by delay, the argument for proceeding expeditiously is reasonable on its face.