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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.

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