Opinions

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Payment of Moving Expenses as Supplementation of a Government Officer’s Salary

Private employer’s payment of prospective federal officer’s moving expenses does not constitute a supplementation of his federal salary in violation of 18 U.S.C. § 209, where the payment is contractually or routinely paid to departing employees, where the purpose of the payments is other than to compensate federal employment, and where the entitlement and amount of the payment do not favor federal employment.

While neither the prospective officer’s continued affiliation with his private employer, nor its payment of his moving expenses, create an immediate or anticipated conflict of interest with his governmental duties, the Justice Department’s Standards of Conduct might require that he disqualify himself from any official participation in a matter affecting his private employer’s interests.

Congressional Authority to Require the States to Lodge Federal Pre-Trial Detainees

Congress has power to provide for the housing of federal pre-trial detainees, whether by authorizing the construction of federal facilities or arranging with the states to use state facilities; however, it does not follow that Congress could require unwilling states to house federal prisoners, particularly where state reluctance stems from overcrowding in state and local detention facilities.

The Tenth Amendment limits Congress’ power to enact legislation which interferes with the traditional way in which local governments have arranged their affairs; moreover, principles of federalism limit Congress’ power to require state officers to perform federal functions.

Historically, Congress has been reluctant to require states to house federal prisoners, although it is not clear whether this reluctance has been motivated by a belief that Congress lacked power to do so by political considerations.

A statutory scheme by which Congress would induce, rather than coerce, the states to house federal prisoners through exercise of its spending power is more likely to be held constitutional, although here too there are limits on Congress’ power to impose coercive conditions on the states’ receipt of federal funds.

Payment of Legal Fees in Connection With a Cabinet Member’s Confirmation Hearings

Legal expenses incurred in connection with a Cabinet member’s Senate confirmation hearings would be an appropriate subject of payment from funds authorized under the Presidential Transition Act, and may also, consistent with that Act, be paid from private sources.

Payment of legal fees incurred in connection with the confirmation process by a private foundation would not be considered to supplement a Cabinet member’s salary in violation of 18 U.S.C. § 209, since the purpose and value of the services rendered were directed primarily to the government.

Constitutionality of Repealing the Employee Protection Provisions of the Regional Rail Reorganization Act

Congress may modify or repeal altogether the income protection program enacted by Title V of the Regional Rail Reorganization Act of 1973, under which the Consolidated Rail Corporation (Conrail) was given responsibility for paying employee benefits under existing collective bargaining agreements between its five component railroads and their unions. Such action would not result in any constitutionally compensable “taking” from railroad employees, or impair any private contract rights in violation of the Due Process Clause.

Railroad employees have no present vested interest in the benefits specified in Title V whose abrogation or modification would be restricted by the Fifth Amendment, since by their nature those benefits are entirely prospective.

Congress may interfere with vested property rights, or impair a contract between two private parties, as long as the results are not harsh and oppressive, in light of the governmental interests served by the legislation. Moreover, a legislative measure interfering with contract rights is more likely to be held constitutional if it is one of a long series of actions regulating the business in question.

One Congress cannot legislate so as to divest itself or subsequent Congresses of the right and responsibility to exercise the full legislative authority to enact laws for the common good.

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