Opinions

Opinions

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Title Headnotes
Legislation Prohibiting Payment of Interest on Compensation Awards Under the 1980 Omnibus Territories Act

Congress may eliminate or modify claims which are purely statutory without violating the Fifth Amendment to the Constitution, unless those claims have ripened into final judgments. Thus, legislative repeal of a provision requiring payment of interest on compensation awards authorized by 48 U.S.C. § 1424c is constitutionally permissible, except insofar as it purports to affect cases in which an award of damages has become final.

Status of the United States Postal Service as an “Executive Agency” Under Executive Order No. 12,250

In light of the statutory independence given the United States Postal Service (Service) and its officers, Executive Order No. 12,250 should not be construed to include the Service as an “Executive agency” subject to the Attorney General’s nondiscrimination coordination authority.

Constitutionality of Proposed Revisions of the Export Administration Regulations

Proposed revisions of the Export Administration Regulations dealing with the export of technical data to foreign nationals apply a prior restraint, in the form of a licensing requirement, to a wide variety of speech protected by the First Amendment. There is thus a considerable likelihood that in their current form the regulations would be invalidated as unconstitutionally overbroad. The regulations would also be vulnerable to constitutional attack on grounds of vagueness. If the regulations were cast not as a licensing scheme but as a form of subsequent punishment, they could cover a far broader range of conduct.

A licensing system is likely to be held constitutional only if it applies narrowly to exports which are likely to produce grave harm under the test set forth in New York Times Co. v. United States, 403 U.S. 713 (1971).

Constitutionality of the Death Penalty Provision of 18 U.S.C. § 1111

Because of the unfettered discretion conferred on the sentencing authority by 18 U.S.C. § 1111, the death penalty may not constitutionally be imposed under that statute.

In the absence of express legislative authorization, federal district judges have no power to devise procedures which would satisfy the requirements dictated by the Supreme Court’s death penalty decisions.

The Attorney General’s Authority to Represent the Roosevelt Campobello International Park Commission

Under the international agreement creating the Roosevelt Campobello International Park Commission and its implementing legislation, the Attorney General may provide free legal representation to the Commission. However, he is under no obligation to do so, particularly where a conflict of interest would make questionable the appropriateness of such representation.

The Attorney General’s statutory obligation to “supervise and control” litigation of the Commission in courts of the United States does not require him to conduct such litigation, or retain private counsel on behalf of the Commission, any more than it empowers him to control access by this international body to U.S. courts. It only means that when the Attorney General does conduct or finance litigation of the Commission, he must retain supervision and control over it.

In cases where the Commission is suing an agency of the United States, it is appropriate for the Department to refuse the Commission’s request for representation. The Department also may withdraw from representation of the Commission that has already been undertaken, as long as such withdrawal is accomplished in accordance with applicable American Bar Association standards.

Constitutionality of the Proposed Revision of the International Traffic in Arms Regulations

Proposed revision of the “technical data” provision of the International Traffic in Arms Regulations (ITAR) redefines and narrows the class of transactions that are subject to a licensing requirement under the Arms Export Control Act of 1976, in an attempt to avoid imposing a prior restraint on speech protected by the First Amendment; however, even as revised the ITAR can have a number of constitutionally impermissible applications.

The licensing requirement in the ITAR may constitutionally be applied to transactions involving arrangements entered into by exporters to assist foreign enterprises in the acquisition or use of technology; it may also be applied to transactions involving the dissemination of technical data for the purpose of promoting the sale of technical data or items on the Munitions List, since the prior restraint doctrine has only limited applicability to “commercial speech.” However, insofar as it could be applied to persons who have no connection with any foreign enterprise, who disseminate technical data in circumstances in which there is no more than a belief or a reasonable basis for believing that the data might be taken abroad by foreign nationals and used there in the manufacture of arms, the licensing requirement is presumptively unconstitutional as a prior restraint on speech protected by the First Amendment.

It is not certain whether a court would find that the revised ITAR are so substantially overbroad as to be void and unenforceable in all their applications, or decide to save the regulations through a narrowing construction. The best legal solution is for the Department of State, not the courts, to narrow the ITAR so as to make it less likely that they will apply to protected speech in constitutionally impermissible circumstances.

Authority of the Special Counsel, Merit Systems ProtectionBoard, Over Anonymous Allegations of Wrongdoing

Anonymous complaints do not trigger the statutory scheme by which the Office of the Special Counsel (OSC), Merit Systems Protection Board, investigates allegations of wrongdoing within an agency; however, such complaints may be forwarded to the head of the affected agency by the OSC in its discretion, to be dealt with by the agency.

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