Opinions
Exchange Authority for Kaloko Honokohau National Historical Park
The Department of the Interior is authorized to acquire privately held land for the Kaloko Honokohau National Historical Park by exchanging it for surplus federal land of equivalent value within the State of Hawaii. Its exchange authority does not, however, extend to excess as well as surplus federal land, nor to land outside the State of Hawaii.
The power to dispose of property of the United States is committed under the Constitution to Congress, and the Executive’s disposition of federal land in any particular case must be undertaken in accordance with whatever rules Congress has established for this purpose. In this case, the Department of the Interior’s specific exchange authority in connection with the Park is presumptively limited by the otherwise applicable general legal restrictions on federal land exchange transactions.
Application for Approval of a Joint Operating Arrangement Under the Newspaper Preservation Act
The Attorney General is not required as a matter of law to disapprove an application for a joint operating arrangement under the Newspaper Preservation Act because the allegedly failing participant in the, proposed arrangement has not been offered for sale, and no good faith efforts have been made to find a purchaser ready, willing, and able to operate it independently.
Constitutionality of Legislation Limiting the Remedial Powers of the Inferior Federal Courts in School Desegregation Litigation
Proposed legislative restriction on the power of the inferior federal courts to order busing remedies in school desegregation litigation cannot be justified as an exercise of congressional power to enforce the Fourteenth Amendment, if such a restriction would prevent a court from fully remedying a constitutional violation.
Proposed legislation can be justified as an exercise of congressional power under Article III, § 1 of the Constitution, which gives Congress very broad power to control the jurisdiction of the inferior federal courts. The bill does not usurp the judicial function by depriving the lower courts of power to hear desegregation cases and to impose remedies which do not involve busing, nor does it instruct the lower courts how to decide issues of fact in pending cases, or require reversal of any outstanding court order.
The bill’s provision prohibiting the Department of Justice from using appropriated funds to bring or maintain an action to require busing is constitutional despite the limitations that it would impose on the Executive’s discretion, since it does not preclude the Department from fulfilling its statutory obligation to enforce the law through seeking other effective remedies or objecting to inadequate desegregation plans.
Both the limitation on courts and on the Department of Justice should be upheld if challenged under the equal protection component of the Fifth Amendment’s Due Process Clause, since neither limitation creates a racial classification nor evidences a discriminatory purpose.
Constitutionality of Legislation Withdrawing Supreme Court Jurisdiction to Consider Cases Relating to Voluntary Prayer
Proposed legislation withdrawing jurisdiction from the Supreme Court to consider cases relating to voluntary prayer in public schools and public buildings raises difficult and unsettled constitutional questions under the separation of powers doctrine. While Congress possesses some power under the Exceptions Clause of Article III of the Constitution to regulate the appellate jurisdiction of the Supreme Court, it may not interfere with the core functions of the Supreme Court as an independent and equal branch in our system of government.
The records of the Constitutional Convention, as well as the structure of the system of government adopted by that Convention, establish that the Exceptions Clause was not intended to allow Congress to intrude upon the Supreme Court’s core functions. There is no basis in Supreme Court precedent, or in long accepted historical practice, for reaching a contrary conclusion.
Whether a given exception to Supreme Court jurisdiction intrudes upon its core functions depends upon a number of factors, such as whether the exception covers constitutional or nonconstitutional questions, the extent to which the subject is one which by its nature requires uniformity or permits diversity among the different states and different parts of the country, the extent to which Supreme Court review is necessary to ensure the supremacy of federal law, and whether other forums or remedies have been left in place so that the intrusion can properly be characterized as an exception.
Installation of Slot Machines on U.S. Naval Base, Guantanamo Bay
Section 5 of the Anti-Slot Machine Act, 15 U.S.C. § 1175, prohibits the installation or operation of slot machines on any land where the United States government exercises exclusive or concurrent jurisdiction, including military bases outside the United States. This interpretation of the plain words of § 1175 finds support in its legislative history, which reveals that Congress intended it not only to assist the states in enforcing their anti-slot machine laws, but also to establish a uniform federal policy against the use of such gambling devices in areas under federal jurisdiction.
Under the terms of the lease agreement between the United States and Cuba, the U.S. Naval Base at Guantanamo Bay constitutes land “acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof” within the meaning of 15 U S.C. § 1175. Accordingly, no slot machines may be installed or operated on that base.
Disclosure of Parolees’ Names to Local Police
United States Parole Commission’s proposed disclosure of information on parolees to local law enforcement authorities could be justified as a “routine use” under the Privacy Act. However, in a case where there is no reason to suspect the involvement of a particular individual in criminal activity, such blanket disclosure could be challenged as an unwarranted expansion of the “routine use” exception.
Statutory Authority for Commodity Credit Corporation Export Credit Guarantee Programs
Certain programs of the Commodity Credit Corporation, guaranteeing export credit sales of American
agricultural exports, are authorized by the Corporation’s charter act.
Employer’s Rental of an Employee’s Residence During His Participation in the President’s Executive Exchange Program
An employer may rent an employee’s house during his participation in the President’s Executive Exchange Program on the same basis as any ordinary renter. However, 18 U.S.C. § 209 would prohibit an arrangement whereby the employer would rent without using the property or permit the employee to have continued access to the property, because this would have the effect of subsidizing the employee’s government service.
Payment of Expenses Associated With Travel by the President and Vice President
Funds appropriated for the official functioning of the offices of the President and the Vice President may be used for travel expenses only if the travel is reasonably related to an official purpose; and, official activities may be funded only from funds appropriated for such purposes. Thus appropriated funds should not be used to pay for political travel and political funds should not be used to pay for official travel.
Whether an event is official or political for purposes of paying its expenses must be determined on a case-by-case basis, and both the nature of the event and the nature of the individual involved should be considered.
Where both official and political activities occur on the same trip, the expenses of individuals on the trip for both political and official reasons can be apportioned between the government and a political committee on a basis which reflects the time spent on the respective activities. During the period of a presidential election campaign. Federal Election Commission regulations may require a different rule of allocation.
Award of Attorney Fees in Administrative Adjudications Under § 609 of the Federal Aviation Act
The Equal Access to Justice Act (EAJA) authorizes an award of attorney fees to prevailing parties in administrative adjudications conducted by the National Transportation Safety Board under § 609 of the Federal Aviation Act to review decisions of the Federal Aviation Administration.
There is no support in the terms of the EAJA or its legislative history for an argument that an individual’s eligibility for an award of fees—and an agency’s liability—are confined to situations in which the agency whose position is at issue in the adjudication also controls its conduct; in any case, agencies generally have only a limited power to review their administrative law judges’ decisions under the EAJA.