Opinions

Opinions

Displaying 1 - 40 of 1339
Title Headnotes
Applicability of Section 410 of the Amtrak Reform and Accountability Act of 1997 to the Gateway Development Commission

New Jersey’s proposed diversion of a portion of its annual payment to Amtrak to a bridge project subject to the authority of the Gateway Development Commission, an interstate entity established by New York and New Jersey, would violate section 410 of the Amtrak Reform and Accountability Act of 1997, which prohibits States from carrying out an interstate compact by using state or federal funds made available for Amtrak.

House Committees’ Authority to Investigate for Impeachment

The House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House’s power of impeachment.

The House had not authorized an impeachment investigation in connection with impeachment-related subpoenas issued by House committees before October 31, 2019, and the subpoenas therefore had no compulsory effect.

The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal status of those subpoenas, because the resolution did not ratify or otherwise address their terms.

Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security

The President may direct the Secretary of Commerce not to publish a confidential report to the President under section 232 of the Trade Expansion Act of 1962, notwithstanding a recently enacted statute requiring publication within 30 days, because the report falls within the scope of executive privilege and its disclosure would risk impairing ongoing diplomatic efforts to address a national-security threat and would risk interfering with executive branch deliberations over what additional actions, if any, may be necessary to address the threat.

Ratification of the Equal Rights Amendment

Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.

Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.

Designating an Acting Director of National Intelligence

In designating an Acting Director of National Intelligence, the President could choose anyone who is eligible under the Federal Vacancies Reform Act of 1998, even though 50 U.S.C. § 3026(a)(6) specifies that the Principal Deputy DNI “shall act for” the DNI during a vacancy.

The President could designate the Senate-confirmed Director of the National Counterterrorism Center as the Acting DNI, but that person could not perform the duties of the NCTC Director during his time as the Acting DNI because no person may “simultaneously serve” as NCTC Director and “in any other capacity in the executive branch,” 50 U.S.C. § 3056(b)(2).

Because the incumbent NCTC Director was rendered unable to perform the duties of that office while serving as Acting DNI, the NCTC Director’s first assistant would, in the absence of an alternative presidential designation, automatically serve as Acting NCTC Director under the Vacancies Reform Act.

Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context

Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify about matters that potentially involve information protected by executive privilege without the assistance of agency counsel. Congressional subpoenas that purport to require executive branch witnesses to appear without agency counsel in these circumstances are legally invalid and are not subject to civil or criminal enforcement.

“Urgent Concern” Determination by the Inspector General of the Intelligence Community

A complaint from an intelligence-community employee about statements made by the President during a telephone call with a foreign leader does not involve an “urgent concern,” as defined in 50 U.S.C. § 3033(k)(5)(G), because the alleged conduct does not relate to “the funding, administration, or operation of an intelligence activity” under the authority of the Director of National Intelligence. As a result, the statute does not require the Director to transmit the complaint to the congressional intelligence committees.

Religious Restrictions on Capital Financing for Historically Black Colleges And Universities

The restriction in 20 U.S.C. § 1066c(c) on the Department of Education’s authority to guarantee loans for capital improvements at historically black colleges and universities “in which a substantial portion of its functions is subsumed in a religious mission” violates the Free Exercise Clause of the First Amendment.

The remaining restrictions in the statute can, and must, be construed to avoid further conflict with the Free Exercise Clause. We thus read section 1066c(c) and 20 U.S.C. § 1068e(1) to deny loans under the program only for facilities that are predominantly used for devotional religious activity, or for facilities that are part of an HBCU, or part of a department or branch of an HBCU, that offers only programs of instruction devoted to vocational religious education.

Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President

The Assistant to the President and Senior Counselor to the President is absolutely immune from compelled congressional testimony in her capacity as a senior adviser to the President.

Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f)

The provisions in 26 U.S.C. § 6103 protecting confidentiality of tax returns prohibited the Department of the Treasury from complying with a request by the Chairman of the House Ways and Means Committee for the President’s tax returns. The text of section 6103(f), the statutory exception under which the request was made, does not require the Committee to state any purpose for its request. But Congress could not constitutionally confer upon the Committee the right to compel the Executive Branch to disclose confidential information without a legitimate legislative purpose. Under the facts and circumstances, the Secretary of the Treasury reasonably and correctly concluded that the Committee’s asserted interest in reviewing the Internal Revenue Service’s audits of presidential returns was pretextual and that its true aim was to make the President’s tax returns public, which is not a legitimate legislative purpose.

Because section 6103(a) prohibited the disclosure of the tax returns sought in the Chairman’s request, as well as in the corresponding subpoenas, the Department of the Treasury’s refusal to provide the information did not violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192.

Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees

Congress may not constitutionally prohibit agency counsel from accompanying agency employees called to testify about matters that potentially involve information protected by executive privilege. Such a prohibition would impair the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with Congress.

Congressional subpoenas that purport to require agency employees to appear without agency counsel are legally invalid and are not subject to civil or criminal enforcement.

Testimonial Immunity Before Congress of the Former Counsel to the President

The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President.

The President does not waive an adviser’s immunity from compelled congressional testimony by authorizing disclosure of any particular information. The disclosure’s impact on executive privilege does not ultimately bear on any underlying immunity from compelled testimony.

Because Congress may not constitutionally compel the former Counsel to testify about his official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.

Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions

Articles intended for use in executions carried out by a State or the federal government cannot be regulated as "drugs" or "devices" under the Federal Food, Drug, and Cosmetic Act. The Food and Drug Administration therefore lacks jurisdiction to regulate articles intended for that use.

Designating an Acting Director of the Federal Housing Finance Agency

In designating an Acting Director of the Federal Housing Finance Agency, the President may choose either an incumbent Deputy Director under 12 U.S.C. § 4512(f), the vacancy statute that applies specifically to the office of the Director, or someone who is made eligible to be an acting officer by the Vacancies Reform Act of 1998. Under the latter, the President may select the Senate-confirmed Comptroller of the Currency.

Designating an Acting Attorney General

The President’s designation of a senior Department of Justice official to serve as Acting Attorney General was expressly authorized by the Vacancies Reform Act. That act is available to the President even though the Department’s organic statute prescribes an alternative succession mechanism for the office of Attorney General.

The President’s designation of an official who does not hold a Senate-confirmed office to serve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official’s position into a principal office requiring Senate confirmation.

Reconsidering Whether the Wire Act Applies to Non-Sports Gambling

This Office concluded in 2011 that the prohibitions of the Wire Act in 18 U.S.C. § 1084(a) are limited to sports gambling. Having been asked to reconsider, we now conclude that the statutory prohibitions are not uniformly limited to gambling on sporting events or contests. Only the second prohibition of the first clause of section 1084(a), which criminalizes transmitting “information assisting in the placing of bets or wagers on any sporting event or contest,” is so limited. The other prohibitions apply to non-sports-related betting or wagering that satisfy the other elements of section 1084(a).

The 2006 enactment of the Unlawful Internet Gambling Enforcement Act did not alter the scope of section 1084(a).

The Scope of State Criminal Jurisdiction over Offenses Occurring on the Yakama Indian Reservation

In partially retroceding the criminal jurisdiction that it had obtained under Public Law 280, the State of Washington retained criminal jurisdiction over an offense on the Yakama Indian Reservation when the defendant or the victim is a non-Indian, as well as when both are non-Indians.

Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs

Under the Controlled Substances Act, the Drug Enforcement Administration may register an applicant to cultivate marijuana only if the registration scheme is consistent with the Single Convention on Narcotic Drugs. To comply with the Single Convention, DEA’s licensing framework must provide for a system in which DEA or its legal agent has physical possession and ownership over the cultivated marijuana and assumes control of the distribution of marijuana no later than four months after harvesting.

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities

The President could lawfully direct airstrikes on facilities associated with Syria’s chemical-weapons capability because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.

Applicability of the Miscellaneous Receipts Act to an Arbitral Award of Legal Costs

An arbitral award of legal costs does not qualify as a refund for purposes of the “refunds to appropriations” exception to the Miscellaneous Receipts Act. The Millennium Challenge Corporation therefore must deposit the award in the general fund of the Treasury.

The Department of Defense’s Authority to Conduct Background Investigations for Its Personnel

Section 925 of the National Defense Authorization Act for Fiscal Year 2018 authorizes the Department of Defense to conduct the background investigations for its personnel currently performed by the National Background Investigations Bureau of the Office of Personnel Management, including investigations to determine whether those personnel may be granted security clearances giving them access to classified information or whether they are eligible to hold sensitive positions.

This statutory reallocation of investigative authority from one part of the Executive Branch to another does not raise constitutional concerns. It does not infringe upon the President’s constitutional role in protecting national security information.

Committee Resolutions Under 40 U.S.C. § 3307(a) and the Availability of Enacted Appropriations

Under 40 U.SC. § 3307(a), committee approval resolutions do not establish binding limits on how the General Services Administration may expend appropriated funds. If Congress appropriates funds for a project that has not received committee approval, section 3307(a) does not constrain what the Executive Branch may do with the funds.

Committee resolutions adopted under section 3307(a) have no effect on the availability of appropriated funds for purposes of the Anti-Deficiency Act.

Designating an Acting Director of the Bureau of Consumer Financial Protection

The statute providing that the Deputy Director of the Bureau of Consumer Financial Protection shall “serve as acting Director in the absence or unavailability of the Director” authorizes the Deputy Director to serve as the Acting Director when the position of Director is vacant.

Both the Federal Vacancies Reform Act of 1998 and the statute specific to the office of Director are available to fill a vacancy in the office of Director on an acting basis; the office-specific statute does not displace the President’s authority to designate an acting officer under 5 U.S.C. § 3345(a)(2) or (3).

Temporary Certification Under the President John F. Kennedy Assassination Records Collection Act of 1992

Section 5(g)(2)(D) of the President John F. Kennedy Assassination Records Collection Act of 1992 authorizes the President to issue a temporary certification postponing disclosure of a set of records without articulating record-specific justifications for further postponement of each individual record. The purpose of this postponement would be limited to providing sufficient time to resolve which specific records warrant postponement under section 5(g)(2)(D). There is a strong likelihood that many of the records in question implicate the kinds of sensitivities about national security, law enforcement, and foreign affairs contemplated by the statute.

Serious constitutional concerns would arise if the Act were construed to require the President to make premature disclosures of records while they are likely to contain still-sensitive information.

Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch

The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen).

Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. They may request information from the Executive Branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.

Appointment of United States Trade Representative

Were it constitutional, 19 U.S.C. § 2171(b)(4) would prohibit anyone “who has directly represented, aided, or advised a foreign entity . . . in any trade negotiation, or trade dispute, with the United States” from being appointed as United States Trade Representative. A nominee’s previous work on two matters involving antidumping or countervailing duty proceedings before administrative agencies would not be disqualifying under the statute, because neither matter was a “trade negotiation” or, during the time of his engagement, a “trade dispute[] with the United States.”

Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office

Section 105(a) of title 3, U.S. Code, which authorizes the President to appoint employees in the White House Office “without regard to any other provision of law regulating the employment or compen-sation of persons in the Government service,” exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. § 3110.

Who Qualifies as a “Very Senior” Employee Under 18 U.S.C. § 207(d)(1)(B)

Section 207(d)(1)(B) of title 18 encompasses any Executive Branch employee who receives a rate of basic pay of exactly the amount payable for level I of the Executive Schedule, regardless of whether the employee’s pay is required to be set at level I by law or is set at level I by administrative action.

An employee’s “rate of pay” in section 207(d)(1)(B) refers to the employee’s rate of basic pay, exclusive of any other forms of compensation such as bonuses, awards, allowances, or locality-based comparability payments.

Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before Congressional Committees

The Department of Health and Human Services may pay for private counsel to represent an employee who has been subpoenaed to appear before the staff of two congressional committees for a deposition at which agency counsel is not permitted to be present.

Administration of the John F. Kennedy Centennial Commission

To avoid the separation of powers concerns posed by inclusion of six members of Congress on the eleven-member John F. Kennedy Centennial Commission, the Commission should create an executive committee, composed of its five presidentially appointed members, which would be legally responsible for discharging the purely executive functions of the Commission.

The six congressional members could participate in nearly all of the Commission’s remaining activities, including in ceremonial functions.

Application of the Recommendations Clause to Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003

The Recommendations Clause bars Congress from enacting laws that purport to prevent the President from recommending legislation that he judges “necessary and expedient.”

The Recommendations Clause bars Congress from enacting laws that purport to require the President to recommend legislation even if he does not judge it “necessary and expedient.”

Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 contravenes the Recommendations Clause and may be treated as advisory and non-binding.

Applicability of the National Emergencies Act to Statutes That Do Not Expressly Require the President to Declare a National Emergency

The National Emergency Act’s coverage is not limited to statutes that expressly require the President to declare a national emergency, but rather extends to any statute “conferring powers and authorities to be exercised during a national emergency,” unless Congress has exempted such a statute from the Act.

Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016

Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal year 2016, from denying the Department’s Office of the Inspector General (“OIG”) timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year.

Interpretation of Article 17 Bis of the US-EU Air Transport Agreement

Article 17 bis of the Air Transport Agreement Between the United States of America and the European
Community and Its Member States does not provide an independent basis upon which the United
States may deny a permit to an air carrier of a Party to the Agreement if that carrier is otherwise
qualified to receive such a permit.

Whether a Military Officer May Continue on Terminal Leave After He Is Appointed to a Federal Civilian Position Covered by 10 U.S.C. § 973(b)(2)(A)

An active duty military officer on terminal leave who meets the requirements of 5 U.S.C. § 5334a may continue on terminal leave status after his appointment or election to a position covered by 10 U.S.C. § 973(b)(2)(A).

Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

The statutes governing federal employment permit federal agencies to schedule part-time employees to work regularly scheduled workweeks of 33 to 39 hours.

The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week less than 40.

The Department of Justice Inspector General’s Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act

Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.

Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees

In the circumstances presented here, the organic statute of the Defense Nuclear Facilities Safety Board requires the Chairman to grant a requesting Board member access to written performance appraisals of Senior Executive Service employees.

In these circumstances, the Privacy Act does not bar the disclosure of those appraisals to the requesting Board member.

Authority to Order Targeted Airstrikes Against the Islamic State of Iraq and the Levant

The President had the constitutional authority to order targeted airstrikes in Iraq against the Islamic State of Iraq and the Levant without prior congressional authorization.

The President had reasonably determined that these military operations would further sufficiently important national interests. A combination of three relevant national interests—protecting American lives and property; assisting an ally or strategic partner at its request; and protecting endangered populations against humanitarian atrocities, including possible genocide—supported the President’s constitutional authority to order the operations without prior congressional authorization.

The anticipated nature, scope, and duration of the military operations did not rise to the level of a “war” within the meaning of the Declaration of War Clause.

The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others

The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws.

The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws. 

The Department of Homeland Security’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion.

Pages

Subscribe to Opinions

Was this page helpful?

Was this page helpful?
Yes No