Opinions

Opinions

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Title Headnotes
Use of Foreign Vessels to Transport Petroleum from the Virgin Islands to the United States Mainland

Under the Merchant Marine Act of 1920, the President is authorized to extend the coastwise laws of the United States to the Virgin Islands, and thus mandate the use of U.S. vessels for transportation of passengers and merchandise from the Virgin Islands to the U.S. mainland.

There is a strong argument that the President is empowered to make the coastwise laws applicable to the Virgin Islands solely for the carriage of petroleum and petroleum products.

Imposition of Agricultural Export Controls Under § 5 of the Export Administration Act of 1979

Export of agricultural commodities can be restrained under the national security controls of § 5 of the Export Administration Act of 1979 only if the exports in question constitute “a significant contribution to the military potential” of the importing country.

Whether grain exports will contribute significantly to the military potential of the Soviet Union is a question of fact for the President to determine.

Department of Justice Authority to Provide “Protective Custody” for Defectors

While any component of the Department of Justice may contract with the Department of State to perform the latter’s security functions, the Department of State is not authorized to provide protective custody to defectors who are neither leading figures in, nor direct representatives of, their government.

The Attorney General has authority under the Immigration and Nationality Act to prevent departure of an alien defector who is being repatriated under duress and might, in a particular case, have discretionary authority to provide some sort of protective custody for that defector.

Under § 235(b) of the Immigration and Nationality Act, the Immigration and Naturalization Service has authority to detain a defector who is deportable or excludable, until such time as he is granted political asylum.

If a defector is assaulted, harassed, specifically threatened, or abducted, so as to bring into play one of several potentially applicable federal criminal statutes, federal law enforcement agencies may be authorized to play a role in his protection.

The Secretary of State may designate any defector an official guest in order to make it a federal offense to assault, harass, intimidate, coerce, imprison, threaten, kidnap, or kill the defector.

Constitutionality of the Disclosure Provisions of the Ethics in Government Act as Applied to Officials’ Spouses

Whatever test is applied to test their constitutionally, the provisions of the Ethics in Government Act that require certain high-level officials to disclose information concerning their spouses’ financial interests do not invade any constitutionally protected privacy right.

The financial disclosure provisions at issue are narrowly drawn to promote Congress’s interest in using disclosure to enforce substantive prohibitions vis-à-vis high-level officials.

Presidential Power Concerning Diplomatic Agents and Staff of the Iranian Mission

While there is authority for imposing some travel restrictions on Iranian diplomatic personnel under the Vienna Convention on Diplomatic Relations and customary international law, as well as under domestic law, those sources of law generally state that diplomats may not be placed in circumstances tantamount to house arrest, or barred from leaving the country, even as an act of reprisal for breaches of diplomatic immunity by Iran.

Subjecting Iranian diplomatic personnel to prosecution under the criminal provisions of the International Emergency Economic Powers Act, even if done in reprisal for Iranian breaches of international law and accompanied by all applicable protections afforded by the United States Constitution, would raise serious questions under international law.

Constitutionality of Affording Reduced Postal Rates to Committees of the Major Political Parties

The Postal Service acted within its authority, under 39 U.S.C. § 3626 and other applicable statutes, when it limited special bulk third-class rates to committees of the major political parties.

An argument can be made that a differential postal rate subsidy is analogous to the differential public campaign financing restrictions upheld against constitutional challenge in Buckley v. Valeo, 424 U.S. 1 (1976); however, the subsidy differential at issue here is more problematic than the scheme held constitutional in Buckley, because it significantly burdens minor political parties without giving them any countervailing advantages.

An appropriations proviso that encourages a one-time administrative differential among political parties, and avowedly favors the major parties at the expense of all others, may be more difficult to justify than the statutory scheme upheld in Buckley, which was neutral in its long-term application.

Possible Participation by the United States in Islamic Republic of Iran v. Pahlavi

As long as the government of Iran is recognized by the United States, it is entitled to maintain a lawsuit in any state or federal court; however, there is a substantial argument that the Iranian government’s suit against the Shah to recover allegedly misappropriated governmental funds should be stayed or dismissed without prejudice in light of Iran’s massive breaches of its treaty obligations to the United States and international law.

The courts have recognized the appropriateness of deferring to the Executive’s foreign policy determinations in connection with claims or defenses based on doctrines of foreign sovereign immunity or act of state.

The Government’s concerns over the effect of the litigation on our foreign policy provide a sufficient basis to support its standing to intervene in Iran’s suit against the Shah, and there is precedent to support its intervention and assertion of cross-claims unrelated to the controversy in suit.

A respectable argument can be made that the Shah enjoys sovereign immunity from suit, under the 1976 Foreign Sovereign Immunities Act as well as customary international law, and the actions complained of appear to be acts of state.  However, the present government of Iran may be able to waive the application of either of these doctrines to defeat its claims against the Shah, since both exist for the benefit of the state in question and not for the individuals who lead it.

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