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Opinions
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.
Prioritizing and Deferring Removal of Certain Aliens Unlawfully Present in the United States
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.
DHS’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.
DHS’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.
EEOC Authority to Order Federal Agency to Pay for Breach of Settlement Agreement
Based on principles of sovereign immunity, the Equal Employment Opportunity Commission lacks authority to order the Social Security Administration to pay a monetary award as a remedy for breach of a settlement agreement entered to resolve a dispute under Title VII of the Civil Rights Act of 1964.
Immunity of the Director of the Office of Political Strategy and Outreach from Congressional Subpoena
The Assistant to the President and Director of the Office of Political Strategy and Outreach (“OPSO”) is immune from the House Committee on Oversight and Government Reform’s subpoena to compel him to testify about matters concerning his service to the President in the OPSO.
Prosecutorial Discretion Regarding Citations for Contempt of Congress
A United States Attorney to whom a contempt of Congress citation is referred retains traditional prosecutorial discretion regardless of whether the contempt citation is related to an assertion of executive privilege.
Obligation of Revolving Funds Requiring Reimbursement from Time-Limited Funds Under the Anti-Deficiency Act
The Anti-Deficiency Act prohibits an agency from awarding a severable services contract that lasts longer than one year and obligates revolving funds that must be reimbursed with time-limited funds.
The Anti-Deficiency Act violation caused by awarding such a contract is not undone by subsequently modifying the contract’s term so as not to exceed one year.
Sequestration of Public Company Accounting Oversight Board Funds
The operating funds of the Public Company Accounting Oversight Board are subject to sequestration under section 251A of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, because the Board’s funds have consistently been included in the President’s budget, were not exempted from sequestration by Congress, and qualify as “budgetary resources” under the Act.
Competitive Bidding Requirements Under the Federal-Aid Highway Program
The competitive bidding requirement of 23 U.S.C. § 112 imposes, in addition to procedural rules dictating the process by which bids are awarded, a substantive limitation on state or local bidding requirements that are unrelated to the bidder’s performance of the necessary work.
Section 112’s competitive bidding requirement does not preclude any and all state or local bidding or contractual restrictions that have the effect of reducing the pool of potential bidders for reasons unrelated to the performance of the necessary work. Rather, section 112 affords the Federal Highway Administration discretion to assess whether a particular state or local requirement unduly limits competition.
Generally, state or local government requirements that eliminate or disadvantage a class of potential responsible bidders to advance objectives unrelated to the efficient use of federal funds or the integrity of the bidding process are likely to unduly impede competition in contravention of the substantive component of section 112’s competitive bidding requirement.
Whether the Millennium Challenge Corporation Is Subject to the Open Meeting Requirements of the Sunshine Act
The Millennium Challenge Corporation is not an “agency” for purposes of the open meeting requirements of the Sunshine Act.
Expiration of Authorizations of Appropriations for Social Security Administration Grant Programs
Notwithstanding the expiration of the specific authorizations of appropriations for the Work Incentives Planning and Assistance program and the Protection and Advocacy for Beneficiaries of Social Security program, the appropriation for administrative expenses of the Social Security Administration remains available to fund those two grant programs. When an agency has legal authority to administer a program and appropriated funds are available for that purpose, the absence or expiration of an authorization of appropriations does not prevent the agency from expending funds on the program unless such a restriction is imposed by statute.