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VISA Fraud Investigation

Although facially a violation of applicable statutes, the State Department may issue a visa to an ineligible alien in order to facilitate an undercover operation conducted by the Immigration and Naturalization Service. Undercover operations often involve facially illegal conduct by government officers, but courts have not held such conduct to be illegal if it is necessary to secure a permissible law enforcement objective.

Overview of the War Powers Resolution

Summary of previous Office of Legal Counsel advice concerning the War Powers Resolution for the purpose of providing guidance in future analyses of War Powers Resolution problems.

Implementation of the Bid Protest Provisions of the Competition in Contracting Act

Certain provisions concerning bid protest procedures in the Competition in Contracting Act of 1984 (CICA) purport to authorize the Comptroller General (1) to require a procuring agency to stay a procurement until such stay is lifted by the Comptroller General; and (2) to require an agency to pay certain costs of a bid protest, including attorneys’ fees and bid preparation costs. Because the Comptroller General is an agent of the Legislative Branch, the provisions authorizing the Comptroller General to act in an executive capacity to bind individuals and institutions outside the Legislative Branch violate fundamental separation of powers principles.

Although the only unconstitutional aspect of the bid protest stay provision concerns the Comptroller General’s authority to lift the stay, this authority is inextricably bound with the stay provision as a whole. The stay provision is not, however, inextricably bound to the remainder of the CICA, and thus may be severed. Likewise, the provision authorizing the Comptroller General to require an agency to pay certain costs of a bid protest is severable from the remainder of the CICA.

Executive Branch agencies are advised to proceed with procurement processes as though no stay provision exists in the CICA, although agencies may voluntarily agree to stay procurements pending the resolution of bid protests if such action is not based on the authority of the invalid CICA stay provisions. Agencies should not comply with the Comptroller General’s awards of costs under the invalid CICA damages provision.

Congressional Subpoenas of Department of Justice Investigative Files

Congressional subpoenas seeking information from the Department of Justice concerning two closed investigations and one open investigation may be complied with only if the materials sought may be revealed consistent with Rule 6(e) of the Federal Rules of Criminal Procedure, which requires the Department to maintain the secrecy of matters occurring before the grand jury, and with the President’s constitutional obligation to executive faithfully the laws of the United States.

If it is determined after review of the requested documents that compliance with the subpoena would jeopardize the ongoing criminal investigation, we would advise the President to assert executive privilege to ensure the continued confidentiality of the documents contained in the open investigative file.

Because of the importance of the process of determining whether documents may be released to Congress consistent with Rule 6(e) and the President’s constitutional obligations, Congress must allow Executive Branch officials sufficient time to review the requested documents.

Voluntariness of Renunciations of Citizenship Under 8 U.S.C. § 1481(a)(6)

A renunciation of citizenship would likely not be held involuntary by a court solely because it was undertaken as part of an agreement whereby federal prosecutors agreed not to proceed with denaturalization and deportation proceedings if the subjects of the investigation agreed to renounce their U.S. citizenship. In the analogous context of plea bargaining in criminal cases, courts have consistently held that the threat of greater punishment by prosecutors does not by itself deprive the defendant of the ability to voluntarily choose to plea bargain, absent other indicia of improper coercion. In the absence of facts indicating further government coercion, a court would likely look to principles applicable to the determination of voluntariness in criminal plea bargains and conclude that renunciation of citizenship pursuant to the agreements at issue did not violate the constitutional requirement of voluntariness per se.

Overview of the Neutrality Act

Overview of the Neutrality Act, focusing on explanations of certain key provisions, and summarizing various judicial and Attorney General opinions interpreting those provisions.

Appointments to the Commission on the Bicentennial of the Constitution

Presidential appointment of the Chief Justice of the United States to the Commission on the Bicentennial of the Constitution is consistent with the Appointments Clause, art. II, § 2, cl. 2, and, as applied to the unique circumstances of this Commission, with general separation of powers principles.

In addition, participation of the Chief Justice on the Commission would appear to be permissible under the Code of Judicial Conduct.

Members of Congress may participate on the Commission without violating the Appointments Clause or the Incompatibility Clause, art. I, § 6, cl. 2, if the Commission creates an executive committee to discharge the purely executive functions of the Commission, or if the noncongressional members determine that the Commission will not act unless a full majority, including the congressional members, approve.

Recommendation That the Department of Justice Not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984

Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984 that retroactively extend the appointments of bankruptcy judges who were in office at the time of the expiration of the transition provisions of the Bankruptcy Reform Act of 1978, as amended, violate the Appointments Clause of the United States Constitution.

The Justice Department should not defend the constitutionality of the reinstatements under the Bankruptcy Amendments and Federal Judgeship Act of 1984, because its general obligation to defend the constitutionality of laws enacted by Congress does not extend to defending laws that unconstitutionally infringe upon the powers of the President.

Authority of the State Department Office of Security to Investigate Passport and Visa Fraud

Section 209 of the Foreign Service Act of 1980 did not confer on the Inspector General of the Department of State the authority to investigate passport and visa fraud by persons unconnected with the Department of State, and, accordingly, did not limit any inherent or derivative authority the Secretary of State might have to investigate such fraud.

Special Agents assigned to the Office of Security of the Department of State may conduct consensual questioning of individuals and may request that an individual consent to being questioned elsewhere, provided that a reasonable person would understand that compliance with such a request is voluntary.

Constitutionality of Legislation Prohibiting the Mailing of Sexually Oriented Advertisements

A draft bill that would prohibit the mailing of photographic sexually oriented advertisements without the addressee’s prior written consent, and that would create strict criminal liability in any person who knowingly sends any sexually oriented advertisements to minors, regardless of whether the advertisements are photographic or not, would likely be held unconstitutional by the courts. The provisions in the draft bill are more extensive than necessary to support the interests asserted by the government, and thus would be held inconsistent with protections accorded commercial speech under the First Amendment.

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