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Proposed Presidential Proclamation Entitled “Registration Under the Military Selective Service Act”

The following memorandum was prepared by the Office of Legal Counsel pursuant to its responsibility under Executive Order No. 11,030 for approving all executive orders and presidential proclamations for form and legality. On the constitutional issue raised by the proposed proclamation, it notes the conclusion reached in an earlier opinion of the Office that a male-only draft is constitutional. On the statutory question, it concludes that the President is authorized under the Selective Service Act to require the registration, by age group, of some but not all males between the ages of 18 and 26.

Presidential Power to Regulate Domestic Litigation Involving Iranian Assets

By its terms the International Emergency Economic Powers Act (IEEPA) gives the President broad authority to regulate the exercise of all rights and privileges “with respect to” foreign property, including their exercise in a judicial context.  The legislative history of the IEEPA confirms that Congress intended the President to have discretionary power to regulate court proceedings involving claims to foreign property, as well as the transfer of or creation of interests in such property in a nonjudicial context.

The authority delegated by Congress to the President in the IEEPA to deal with an international emergency should be read as broadly as the statutory text and the Constitution will permit, and no limitations on it should be implied.

The President’s power under the IEEPA to prevent the prosecution or adjudication of claims against Iran in the federal courts extends to any claim asserting an interest in property in which Iran has an interest, though it is unclear whether this would include a naked tort claim against Iran which did not otherwise involve the assertion of an interest in property.

Rights-of-Way Across National Forests

The Act of June 4, 1897, does not grant a right of access to owners of land surrounded by national forests, other than actual settlers, and the Secretary of Agriculture has discretionary authority to deny such access unless a right otherwise exists.

The common law doctrine of easement by necessity does not apply to land owned by the federal government, but a right of access may be implied from the terms of a federal land grant in some circumstances.  No statutes currently modify any such implied right found to exist.

Absent a prior existing access right, the Secretary of Agriculture may deny “adequate access” to land within a national forest wilderness area, but must offer a land exchange as indemnity.

Attorney General’s Authority to Reprogram Funds for the United States Marshals Service to Avoid Deficiencies

The Attorney General has authority to reallocate funds among programs of the United States Marshals Service and to make available to the Service funds presently allocated to other programs and activities funded through the same lump sum appropriation.

An agency head’s discretion to reprogram appropriated funds within a lump sum appropriation account in an antideficiency situation would be limited only if a specific statutory directive required the expenditure or distribution of funds in a particular manner.

Constitutionality of Legislation Establishing the Cost Accounting Standards Board

If the Cost Accounting Standards Board (CASB) is viewed as an Executive Branch entity, the statutory mechanism for appointing its members is unconstitutional under the Appointments Clause; however, it can be argued that the CASB is a Legislative Branch entity, and that its action in promulgating cost accounting standards is advisory with respect to executive agencies.

The Department of Justice has a duty to defend the constitutionality of a statute except in exceptional circumstances, and it thus may be appropriate to bring to a court’s attention any plausible argument that would permit the court to uphold a statute.

Providing Representation for Federal Employees Under Investigation by Their Inspector General

Neither the Department of Justice nor any other federal agency has authority to provide legal representation to a federal employee in disciplinary proceedings instituted by his own agency. Authority to provide counsel to a federal employee may be implied only where the employee’s official conduct has been attacked by a nongovernmental plaintiff or a state prosecutive office, and not by an agency of the government itself.

An Inspector General’s Office is an integral part of the agency in which it is located, and its investigation of an agency employee is thus analogous to an investigation of Department of Justice employees by the Criminal Division of the Department of Justice.

Effect of 31 U.S.C. § 484 on the Settlement Authority of the Attorney General

A proposal whereby sums received in settlement of a suit brought by the United States and the Commonwealth of Virginia for environmental damage resulting from an oil spill would be donated to a waterfowl preservation organization, is barred by 31 U.S.C. § 484, which requires that all money received for the use of the United States be deposited in the Treasury. This requirement furthers the constitutional goal of reserving to Congress responsibility for determining whether and how public funds are to be spent.

While the Comptroller General has found § 484 inapplicable in situations where the funds involved are received in trust for a particular purpose, this theory is usually insufficient to override the mandate of § 484 where the trust is created by nonstatutory executive action.

In this case, where the United States has not incurred any monetary loss as a result of the oil spill, § 484 would not be offended by a settlement that attributed the entire sum received to its co-plaintiff, which could then direct the money to a charity.

Authority of the Comptroller General to Appoint an Acting Comptroller General

The Comptroller General is authorized to designate an employee of the General Accounting Office to act as Comptroller General in his absence, even if the Office of Deputy Comptroller General is vacant.

Acting heads of agencies have powers that are commensurate with those of agency heads who have been confirmed by the Senate.

Cuban Obligation to Accept Returning Nationals

Under customary international law, one state has a duty to another state to accept any of its own nationals who have been expelled from the other state. This duty between states to accept returning nationals is reinforced by a number of international instruments under which individuals have a right to return to their own country.

Cuba’s obligation to accept its returning nationals is intensified by evidence that it violated international law in expelling them in the first place.

The President’s Authority to Order Export of Special Nuclear Material Under the Atomic Energy Act of 1954

The President has the power to order exports of special nuclear material under § 126 of the Atomic Energy Act of 1954, as amended, whenever he determines that “withholding the proposed export would be seriously prejudicial to the achievement of United States non-proliferation objectives, or would otherwise jeopardize the common defense and security.”

The full-scope safeguards criterion of § 128, which applies to exports of special nuclear material to non-nuclear weapon states, is binding only on the Nuclear Regulatory Commission. While the President may take into account the expression of congressional policy contained in § 128 in deciding to order an export under § 126, including its affordance of a grace period, he is not bound by it.

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