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Effective Date of the Reporting Requirement Imposed by the Multinational Force in Lebabon Resolution

The three-month reporting requirement imposed by § 4 of the Multinational Force in Lebanon Resolution (Lebanon Resolution) commenced as of the date of enactment of that Resolution, October 12, 1983. The specification in § 4 of the Lebanon Resolution that reports should be made “[a]s required by section 4(c) of the War Powers Resolution” is intended to incorporate only the reporting obligation, not the timing mechanism, set forth in the War Powers Resolution.

Proposed Commission on Deregulation of International Ocean Shipping

Individuals who serve on a purely advisory Commission on the Deregulation of International Ocean Shipping need not be officers of the United States. Appointment of Members of Congress to such a Commission does not implicate the Incompatibility Clause, U.S. Const. art. I, § 6, cl. 2. A provision authorizing the congressional leadership to make recommendations for appointments to the Commission does not limit the President’s ultimate responsibility for such appointments.

The proposed Commission may not hold a witness in contempt for failure to comply with a Commission subpoena or to testify. Rather, the Commission should be required to seek a court order compelling compliance.

Use of the “Pocket Veto” During Intersession Adjournments of Congress

Under the Constitution, the President has the power to veto an enrolled bill by “retum[ing] it, with his objections to that House in which it shall have originated” within ten days of the bill’s being presented to the President. If, however, “the Congress by their Adjournment prevent [a bill’s] Return” from the President, he may veto the bill simply by failing to sign it (i.e., by “putting it in his pocket”). Congress may not override a pocket veto of a bill by a two-thirds vote of both Houses. Rather, the bill must be reintroduced and repassed by both Houses and resubmitted to the President for his approval or veto.

The Supreme Court has held that Congress’ appointment of an officer or agent to receive returned bills from the President during an intersession adjournment does not preclude the President from exercising a pocket veto. The Court has also held, however, that an ordinary “return veto” was valid when the President returned a bill to the Secretary of the Senate while that House was in an intrasession adjournment of three days or less.

Despite lower court decisions questioning the continued validity of the Supreme Court’s reasoning, use of the pocket veto during intersession adjournments remains valid, whatever steps Congress may take to receive returned bills during such and adjournment. The Supreme Court has not decided whether the pocket veto can be exercised when one House, but not the other, has adjourned sine die or for an intersession recess. Nor has that Court decided whether the pocket veto can be used during intrasession adjournments lasting longer than three days.

Payment of Attorney Fee Awards Against the United States Under 28 U.S.C. § 2412(b)

The United States is liable under 28 U.S.C. § 2412(b) for a court award of attorney fees in civil cases “to the same extent any party would be liable under the common law or under the terms of any statute.” Attorney fees awarded by a court under § 2412(b) are to be paid from the judgment fund, and not from agency appropriations, unless an award is based on a finding of bad faith.

Although the terms of § 207 of the Equal Access to Justice Act, Title II of Pub. L. No. 96-481, 94 Stat. 2325 (1980), prohibit the payment of awards from the judgment fund without a specific congressional appropriation for that purpose, the legislative history of § 207 reveals that Congress only intended § 207 to apply to awards under 5 U.S.C. § 504 and 28 U.S.C. § 2412(d), and not to apply to attorney fee awards under § 2412(b). Thus, § 207 does not bar the Comptroller General from certifying awards of attorney fees under 28 U.S.C. § 2412(b).

Commencement of the United States Commission on Civil Rights

The United States Civil Rights Commission may commence its duties as soon as the statutory quorum of five members has been appointed.

The President may appoint the Chairman, Vice Chairman, and Staff Director prior to the appointment of all eight members of the Commission. Such appointments will be effective when a majority of the Commissioners then in office concurs, provided that at least five members have been appointed.

Delegation of the Attorney General’s Authority to Investigate Credit Card Fraud

The Attorney General has authority under 28 U.S.C. § 533 to investigate all criminal violations against the United States, including credit card fraud under 15 U.S.C. § 1644, except in cases in which Congress has specifically assigned the responsibility with respect to a particular investigation exclusively to another agency.

The Attorney General’s investigative authority under 28 U.S.C. § 533, which has been delegated to the Federal Bureau of Investigation by 28 C.F.R. § 0.85(a), may not be delegated outside of the Department of Justice to the Secret Service.

A preliminary analysis reveals no independent authority for investigations of credit card fraud in the Secret Service’s enabling statute, 18 U.S.C. § 3056.

Church Sanctuary for Illegal Aliens

The historical tradition of providing church sanctuary for criminal offenses was abolished by statute in England in 1623 and thus did not enter the United States as part of the common law.

Providing church sanctuary to illegal aliens probably violates 8 U.S.C. § 1324(a)(3), which forbids the harboring of illegal aliens.

Courts are unlikely to recognize church sanctuary as legally justified under the Free Exercise Clause of the First Amendment, because disagreement with the government’s treatment of aliens is not a religious belief that is burdened by enforcement of the immigration laws, and the government has a compelling countervailing interest in uniform law enforcement.

Historical Use of Assistant Attorneys General

The Attorney General may reassign Assistant Attorneys General from one unit to another within the Department of Justice. This has been done on at least ten occasions and does not require that the Assistant Attorney General be reconfirmed by the Senate.

S. 421, A Bill to Require the Comptroller General to Ascertain Increases in the Cost of Major Acquisition Programs of Civilian Agencies and to Limit the Expenditure of Federal Funds to Carry Out Those Programs

Proposed legislation, if construed to give the Comptroller General, a legislative officer, discretionary authority to review Executive Branch acquisition programs and to cut off funds to those programs, would violate the constitutional principle of the separation of powers.

The Secretary of Transportation’s Continued Authority to Sell the Consolidated Rail Corporation Under the Regional Rail Reorganization Act in Light of INS v. Chadha, 462 U.S. 919 (1983)

The legislative veto provisions of the Regional Rail Reorganization Act, 45 U.S.C. §§ 761(a)(3), 767(d), which purport to condition the Secretary of Transportation’s authority to sell Consolidated Rail Corporation (Conrail) as an entity or by sale o f assets, are unconstitutional under the Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983). Nonetheless, the Secretary of Transportation continues to have authority to sell Conrail, either as an entity or by sale of assets, because the unconstitutional veto provisions are severable from the rest of the statute.

The severability of an unconstitutional provision from the remainder of the statute is determined by analyzing whether Congress would have enacted the remainder of the statute had it recognized that the questioned provisions were unconstitutional.

The presence of a severability clause in the Regional Rail Reorganization Act creates a strong presumption that Congress intended that any unconstitutional provisions be severable from the remainder of the statute. The legislative veto provisions are further presumed severable because the Secretary's sale authority remains “fully operative as a law” without the legislative veto provisions. The legislative history, taken as a whole, also suggests that Congress would have wanted the Secretary of Transportation to exercise the sale authority even without the legislative vetoes, and thus provides insufficient evidence to rebut the presumption of severability created by the severability clause and the otherwise “fully operative” statutory scheme.

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