Opinions

Opinions

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Title Headnotes
Reconsideration of Prior Opinion Concerning Land-Grant Colleges

After reconsideration of a prior opinion, we adhere to the conclusion that the State of West Virginia may validly designate West Virginia State College as the beneficiary of appropriated funds under the Second Morrill Act of 1890.

Reversing our prior conclusion, we find that the State’s designation of the College as a Second Morrill Act beneficiary does not make that institution eligible for funds appropriated under certain statutes administered by the Department of Agriculture.

Admissibility of Alien Amnesty Application Information in Prosecutions of Third Parties

The confidentiality provisions of the Immigration Reform and Control Act of 1986 generally bar federal prosecutors from introducing information from a lien amnesty applications as evidence in criminal prosecutions of third parties, but the use of such information is not barred in prosecutions of third parties for crimes that facilitate, or are closely related to, the filing of a false amnesty application.

Justice Department use of amnesty application information is also subject to regulations issued by the Immigration and Naturalization Service. Those regulations limit such use against third parties to the prosecution of persons who have “created or supplied a false writing or document for use” in an amnesty application, which may include persons who take bribes to approve false amnesty applications.

Clarification of Prior Opinion Regarding Borrowing by Bank Examiners

18 U.S.C. § 213, which prohibits federal bank examiners from borrowing from Federal Reserve member banks or other entities subject to examination by them, does not prohibit such examiners from receiving loans or credit from affiliates of covered banks merely because such affiliates are under “common control” with the bank or because the covered bank and the affiliate have a common majority of corporate officers or directors.

An examiner would be prohibited from borrowing from such an affiliated entity, where the affiliate is serving as a conduit or “front” for the implementation of a loan that is actually extended due to the direction, instigation, or influence of the affiliated member bank or person connected therewith.

Authority to Pay State and Local Taxes on Property After Entry of an Order of Forfeiture

The Attorney General has discretionary authority to make payments of state and local tax claims against civilly forfeited property after a forfeiture order has been issued, based on her equitable discretion to administer civilly forfeited property, under 21 U.S.C. § 881(b)–(e) and 28 U.S.C. § 524(c)(1).

The Attorney General has discretion to pay state and local tax claims against criminally forfeited property, under the authority in those statutes to “take any other action to protect the rights of innocent persons which is in the interests of justice.”

Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils

The appointed members of Regional Fishery Management Councils established under the Magnuson Fishery Conservation and Management Act and other personnel of those Councils are not executive branch employees for purposes of Executive Order No. 12674 and its implementing regulations, and thus are not subject to that Order.

Constitutionality of Vesting Magistrate Judges With Jurisdiction Over Asset Forfeiture Cases

A statute vesting magistrate judges with jurisdiction over asset forfeiture cases would violate Article 111 of the Constitution.

Whether Missouri Municipalities May Tax the Portion of Federal Salaries Voluntarily Contributed to the Thrift Savings Plan

Intergovernmental tax immunity does not preclude municipalities in Missouri from levying an earnings tax on the voluntary contributions of federal employees to the Thrift Savings Plan.

The Legal Significance of Presidential Signing Statements

Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. These uses of Presidential signing statements generally serve legitimate and defensible purposes.

Constitutionality of Health Care Reform

The proposed Health Security Act is well within the authority of Congress under the Commerce Clause, and it does not violate Tenth Amendment or other principles of federalism.

The proposal contains no unconstitutional takings of private property or infringement of liberty interests.

The proposed delegation of administrative authority to the National Health Board, and, from it, to state alliances, is not an impermissible delegation of legislative authority.

Applicability of the Emoluments Clause to Non-Government Members of ACUS

The Emoluments Clause of the Constitution prohibits non-government members of the Administrative Conference of the United States from accepting, absent Congress’s consent, a distribution from their partnerships that includes some proportionate share of the revenues generated from the partnership’s foreign government clients.

Non-government members of ACUS are also generally forbidden, absent Congress’s consent, from accepting payments from commercial entities owned or controlled by foreign governments.

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