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Title Headnotes
Defending the Revocation of the Tax-Exempt Status of Certain Private Schools in Light of the Ashbrook Amendment

The Ashbrook amendment’s limitation on the expenditure of appropriated funds by the Internal Revenue Service (IRS) on actions that would cause the revocation of a school’s tax-exempt status applies only prospectively, and revocation notices issued prior to its effective date thus remain valid.

A bar on the expenditure of appropriations which does not amend underlying substantive law will not lightly be interpreted to prohibit the Executive from appearing in court to defend legally authorized actions previously taken.

Neither the plain language nor the legislative history of the Ashbrook amendment suggests a congressional intent to bar IRS from defending its valid revocation notices in a court proceeding, though the manner in which IRS defends its revocation notices may be relevant to whether it is complying with the spirit as well as the letter of the Ashbrook amendment.

Use of Potatoes to Block the Maine-Canada Border

A number of federal statutes might justify federal intervention in the event Maine potato farmers seek to block highways at border crossings in northeastern Maine to prevent the importation of potatoes from Canada, or attack federal officers or property at the United States-Canada border. Federal intervention might take the form of direct law enforcement activity by federal executive officials, or a judicial injunction against persons seeking to obstruct the passage of interstate commerce and the mails.

In extreme situations, the President may call out the National Guard or the Army to put down rebellions in states that threaten the enforcement of federal law.

Federal law enforcement officers have no special authority to make arrests for violations of state law, and they can act in this regard only as private citizens.

The Attorney General is the chief civilian officer in charge of coordinating all federal governmental activities relating to civil disturbances. Generally, because the statutory and constitutional scheme of our government leaves the protection of life and property and the maintenance of public order largely to state and local governments, the Attorney General has pursued a policy against commitment of federal forces until advised by the appropriate state officials that the situation is beyond their control.

Payment of Travel Costs to Witnesses During a Period of Lapsed Appropriations

Where witnesses have been ordered to appear in court during a lapse in the Department of Justice’s appropriation, and lack the financial resources necessary to return home, there exists a sufficient likelihood that the witnesses’ safety would be compromised by not providing them the means to return home to warrant a cash disbursement for that purpose under the Antideficiency Act, 31 U.S.C. § 665(b).

Under the interpretation of the Antideficiency Act in the Attorney General's opinion of January 16, 1981, emergency expenditures may be made during a lapse in appropriations if they are necessary to secure the safety of human life or the protection of property. The totality of circumstances must be examined and evaluated in each case to determine whether such emergency expenditures are permitted.

Executive Power With Regard to the Libyan Situation

The following memorandum reviews the significant statutory authorities available to the President and other executive officials in dealing with a foreign policy crisis.

Peyote Exemption for Native American Church

Regulation of the Drug Enforcement Administration (DEA) exempting peyote use in connection with the religious ceremonies of the Native American Church (NAC) from the controls and sanctions of the Controlled Substances Act of 1970 (CSA), accurately reflects Congress’ intent to exempt the religious use of peyote by the NAC and other bona fide religions in which the use of peyote is central to established religious beliefs, practices, dogmas, or rituals.

An exemption for peyote use by the NAC would not violate the Establishment Clause of the First Amendment if the NAC had a constitutional right under the Free Exercise Clause to use peyote for religious purposes.

The NAC is an established religion, in whose history the sacramental use of peyote is firmly grounded, and in whose doctrine and ritual the use of peyote is central. Nonetheless, it is likely that Congress could, consistently with the Free Exercise Clause, constitutionally restrict or prohibit the continued religious use of peyote if this were the least restrictive means of achieving a compelling governmental purpose.

The exemption for the religious use of peyote contained in the CSA does not offend the Establishment Clause even if it is not required by the Free Exercise Clause. Under relevant Supreme Court precedent, the government may take actions necessary to avoid substantial interference with religious practices or beliefs, even if such actions are not required by the Free Exercise Clause, provided that the actions do not impose hardship on others or amount to government sponsorship or support of religion.

A statutory exemption limited to the NAC, to the exclusion of other religions whose use of peyote is central to established religious beliefs or practices, would be unconstitutional under the Establishment Clause if it discriminated among otherwise equally situated religions. No different conclusion would be required because the “preferred” religion is composed of American Indians, since the special treatment of Indians under our law is grounded in their unique status as political entities, not in their religion or culture. On the other hand, since no group other than the NAC is likely to be able to establish its entitlement to the exemption, the DEA would be justified in adopting procedures designed to minimize the administrative burdens of extending the exemption to other groups.

Authority to Pay Witness Fees to Illegal Aliens

Aliens not legally entitled to be admitted to or reside in the United States who have been paroled for prosecution as defendants, who admit deportability, or who have been adjudged deportable under 8 U.S.C. § 1252(b), are not entitled to payment for appearing as witnesses in federal courts. 28 U.S.C. § 1821(e). However, aliens who are currently the subject of deportation proceedings but have not admitted deportability, or who have rendered themselves subject to deportation proceedings and do not admit deportability, are entitled to witness fees pursuant to 28 U.S.C. § 1821 in the amount of $30 per day.

Aliens determined to be excludable under 8 U.S.C. § 1226, whose removal has been stayed by the Attorney General so that they may testify on behalf of the United States or indigent criminal defendants, are entitled to witness fees in the amount of $1 per day. 8 U.S.C. § 1227(d); Rule 17(b), Fed. R. Crim. P.

Where the language of two or more appropriation accounts makes them equally available to pay certain expenses, and an administrative determination has been made to pay them out of one account rather than any other, Comptroller General rulings require the continued use of the appropriation account that has been selected. Accordingly, witness fees paid to excludable aliens pursuant to 8 U.S.C. § 1227(d) must in the future be made from the Department of Justice’s “Fees and Expenses of Witnesses” (FEW) appropriation, rather than from the Immigration and Naturalization Service appropriation, since such fees have in the past been paid from the FEW appropriation.

Computation of 90-Day Period for Preliminary Investigation Under the Special Prosecutor Act

The 90-day period for the Attorney General’s preliminary investigation under the Special Prosecutor provisions of the Ethics in Government Act should be computed from the day when the specific information is effectively received by the Department of Justice. In this case, the 90-day period began to run when the Attorney General himself was apprised of the allegations against the Secretary of Labor, and ordered the preliminary investigation commenced.

United States Participation in Interpol Computerized Search File Project

Neither state nor federal law would prohibit participation by the United States National Central Bureau of Interpol (USNCB) in a proposed computerized information exchange system, provided the USNCB complies with all disclosure, accounting, and publication requirements imposed by applicable federal statutes, such as 22 U.S.C. § 263a, the Privacy Act, and other federal restrictions on the exchange of criminal history information.

As a matter of comity, the USNCB may comply with relevant state laws and regulations that restrict the disclosure and dissemination of personally identifiable information; however, under the Supremacy Clause, as a federal law enforcement agency it is not bound to do so.

The requirements of the Privacy Act may affect the structure and functioning of any computerized information exchange system in which the USNCB participates, particularly insofar as it would require the USNCB to verify the accuracy of data in its records prior to disclosure. Applicable international guidelines and agreements relating to information exchange and privacy protection are broader in scope than the Privacy Act, and may restrict federal law enforcement agencies’ ability to participate fully in the proposed system. Moreover, there are a number of possible international conflicts of law issues raised by the United States’ participation in Interpol generally, and in any automated information exchange system it may implement.

Illiterate Aliens Seeking Admission as Immigrants

Illiterate aliens who would otherwise be eligible for admission to this country on visas allocated under 8 U.S.C. §§ 1152 or 1153, may not avoid the literacy requirement of 8 U.S.C. § 1182(a)(25) simply by virtue of their being accompanied by a child who is under the age of 16, if that child’s own eligibility for admission depends upon that of his or her parents. The State Department’s longstanding administrative practice in this regard finds no support in the legislative history of the literacy requirement, which establishes that Congress intended to exempt from its application only those illiterates whose close relatives were independently entitled to be admitted.

Applicability of 18 U.S.C. § 281 to Selling Activities of Retired Military Officers

Section 281 of Title 18, United States Code, which prohibits certain representational activities by federal employees, is presently in force as applied to retired officers of the armed forces, and in appropriate cases a violation could warrant criminal prosecution by the Department of Justice.

The prohibitions of the first paragraph of § 281 apply only to retired officers on active duty, but under its second paragraph inactive retired officers are also prohibited from engaging in certain selling activities.

The prohibition in the second paragraph of § 281 was intended generally to prevent retired officers from being in a position to exert their influence in the procurement process of the military department in which they once served, and applies to representational activities in connection with the sale of services as well as the sale of goods. However, its prohibition does not extend to a situation in which the retired officer can fairly be said to be representing only himself and no one else as a seller.


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