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The Food and Drug Administration’s Discretion to Approve Methods of Detection and to Define the Term “No Residue” Pursuant to the Federal Food, Drug, and Cosmetic Act

The Food and Drug Administration has the discretionary authority under the DES proviso to the Delaney Clause of the Federal Food, Drug, and Cosmetic Act to prohibit the use of an additive in animal feed if the FDA concludes that there is no method that can “reliably measure and confirm” whether the additive contains residues of carcinogenic concern at or above the “no residue” level.

Where the FDA has already approved a method for detecting the presence of residues of carcinogenic concern, the DES proviso does not require the FDA to revise its regulations to adopt the “best available” such method.

The FDA lacks the discretion to determine that an edible tissue contains “no residue” when a method of detection reveals the presence of residues of carcinogenic concern that is below the “no significant risk” level.

Scope of Treasury Department Purchase Rights With Respect to Financing Initiatives of the U.S. Postal Service

If the Treasury Department has declared its election to purchase a proposed U.S. Postal Service bond issue pursuant to 39 U.S.C. § 2006(a) prior to the proposed date of issuance and is pursuing good-faith negotiations towards such purchase as of such date, the USPS is not free to proceed with issuance of the bonds to other purchasers solely because Treasury has not completed purchase of the bonds within a 15-day period following USPS’ initial notice of the proposed issue.

If, in the above circumstances, Treasury and the USPS are unable to negotiate mutually agreeable terms for purchase by Treasury within a commercially reasonable period of time following USPS’ proposed date for the issuance of its bonds, then the USPS may proceed with the issuance of such bonds to other purchasers.

Treasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded a reasonable opportunity to reach mutually agreeable terms with the USPS when the original terms proposed by the USPS are unacceptable. That reasonable opportunity is not rigidly limited by the 15-day period for declaring an election to purchase.

Authority to Employ the Services of White House Office Employees During an Appropriations Lapse

The Antideficiency Act permits the White House Office to employ personnel during an appropriations lapse for functions that are excepted from the Act’s general prohibition: functions relating to emergencies involving an imminent threat to the safety of human life or protection of property; other functions as to which express statutory authority to incur obligations in advance of appropriations has been granted; those functions for which such authority arises by necessary implication; and certain functions necessary to the discharge of the President’s constitutional duties and powers. Such personnel may not be paid, however, until appropriations are enacted.

The President may use his authority under 3 U.S.C. § 105 to create and fill nonsalaried positions in the White House Office during an appropriations lapse, but nonsalaried employees cannot receive an obligation of payment for the services they perform in that capacity.

White House Office employees appointed under 3 U.S.C. § 105 may waive their compensation, and if they do so, their services may be accepted during an appropriations lapse.

Constitutional Limitations on Federal Government Participation in Binding Arbitration

The Appointments Clause does not prohibit the federal government from submitting to binding arbitration.

Nor does any other constitutional provision or doctrine impose a general prohibition against the federal government entering into binding arbitration, although the Constitution does impose substantial limits on the authority of the federal government to enter into binding arbitration in specific cases.

Government Operations in the Event of a Lapse in Appropriations

A government agency may employ personal services in advance of appropriations only when there is a reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property, and when there is some reasonable likelihood that either or both would be compromised in some significant degree by the delay in the performance of the function in question.

Legal Guidance on the Implications of the Supreme Court's Decision in Adarand Constructors, Inc. v. Peña

This memorandum sets forth preliminary legal guidance on the implications of the Supreme Court’s decision in Adarand Constructors, Inc. v. Peña, which held that “strict scrutiny’’ is the standard that governs judicial review of the constitutionality of federal affirmative action programs that use racial and ethnic criteria as a basis for decisionmaking. The memorandum is not intended to serve as a definitive statement of what Adarand means for any particular affirmative action program; rather, it is intended to provide a general overview of the Court’s decision and the application of the strict scrutiny standard in the context of affirmative action.

Effects of a Presidential Pardon

A full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien under 8 U.S.C. § 1251(a)(2).

A full and unconditional presidential pardon removes a state firearm disability arising as a result of a conviction of a federal crime.

A full and unconditional presidential pardon extends to the remission of restitution ordered by a court pursuant to 18 U.S.C. § 3551(b)–(c) as a “sanction” authorized in addition to imprisonment, probation, or a fine until such time as the restitution award is paid to the victim.

Waiver of Claims for Damages Arising Out of CooperativeSpace Activity

Congress has not authorized the National Aeronautics and Space Administration to waive subrogated claims on behalf of federal agencies against foreign States for damages arising out of cooperative space activity. An amendment to the Space Act would be necessary to grant NASA such authority.

The President may waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government. The President may delegate this authority to an agency head.

The weight of authority supports the President’s power to waive state claims against a foreign government.

Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund

31 U.S.C. § 1321 and its accompanying Department of Justice regulations do not impose a fiduciary obligation on the Bureau of Prisons to expend Commissary Fund moneys only in accordance with the terms of the Commissary Fund trust.

Bill to Relocate United States Embassy from Tel Aviv to Jerusalem

The provisions of a bill that render the executive branch’s ability to obligate appropriated funds conditional upon the construction and opening in Jerusalem of the United States Embassy to Israel invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional.

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