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Opinions

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Title Headnotes
Applicability of Executive Privilege to the Recommendations of Independent Agencies Regarding Presidential Approval or Veto of Legislation

In making recommendations to the President to approve or disapprove legislation, an independent agency functions as part of the President’s core of executive advisers.

When independent agencies render advice to the President concerning his approval or disapproval of legislation, they are acting in an executive capacity, and such advice can be protected under the doctrine of executive privilege.

The President’s Compliance with the “Timely Notification” Requirement of Section 501(b) of the National Security Act

Under the Constitution, the President has plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits contained in the Constitution itself and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers.

The conduct of secret negotiations and intelligence operations lies at the very heart of the President’s executive power. Statutory requirements that the President report to Congress about his activities in the realm of foreign policy must be construed consistently with his constitutional authority. A statute requiring the President to give Congress notice of covert operations “in a timely fashion” if he withholds prior notification should be construed to permit the President sufficient discretion to choose a reasonable moment for notifying Congress, including withholding notification at least until the secret diplomatic or covert undertaking has progressed to a point when disclosure will not threaten its success.

Enforcement by Federal Magistrates of Summonses Issued by the Federal Bureau of Investigation in Aid of Criminal Investigations and Foreign Intelligence Activities

Certain proposed legislation would have granted the Federal Bureau of Investigation power to issue summonses ordering the production of physical and documentary evidence in aid of federal criminal investigations and foreign intelligence activities. A provision of that legislation allowing United States magistrates to enter orders enforcing such summonses would raise problems under Article III of the Constitution, because it could entail the exercise of the judicial power by officials lacking life tenure and guaranteed non-diminution of compensation.

The Article III problems presented by the foregoing provision could be eliminated by providing that the magistrate's order would be treated as a report of findings and recommendations, subject to de novo review by a United States district judge with respect to findings and recommendations of the magistrate as to which objection is made by any party, whereby the judge could accept, reject, or modify the findings or recommendations of the magistrate.

A provision in the proposed legislation would permit the ex parte issuance of an order prohibiting disclosure of such FBI summonses upon a showing that such disclosure might endanger life or property; cause the flight of a suspect; result in the destruction of or tampering with evidence, or the intimidation of potential witnesses; or defeat federal remedies or penalties. Under the standard articulated in Mathews v. Eldridge, 424 U.S. 319 (1976), the absence of a predeprivation hearing in this provision would not appear to violate the requirements of the Due Process Clause.

Constitutionality of Government Commission’s Use of Logo Including an Historical Cross in its Design

The Christopher Columbus Quincentenary Commission’s use of a logo consisting of the number 500 with a cross in one of the zeros, and a star in the other, does not violate the Establishment Clause of the First Amendment. The use of a cross with clear historical associations in the design of a government commission’s logo is compatible with the Supreme Court’s holding in Lynch v. Donnelly, 465 U.S. 668 (1984). Furthermore, the Establishment Clause does not require a per se rule against the inclusion of religious symbolism in government emblems.

Application of Fourth Amendment to Use of Electronic Beeper in Tracking Bank Robbery Bait Money

The warrantless monitoring by law enforcement personnel of electronic beepers hidden in bait money robbed from a bank probably does not constitute a “search” implicating the Fourth Amendment, even after the beeper being monitored has been taken into a home.

One who has come into possession of beeper-monitored bank bait money by robbing a bank has no legitimate expectation of privacy in such money that would be violated by the beeper monitoring.

Although this form of beeper monitoring probably does not constitute a search implicating the Fourth Amendment, it was recommended that the FBI should continue its practice of seeking a warrant when that form of monitoring is undertaken. However, because exigent circumstances justify the FBI’s practice of commencing beeper monitoring immediately when a baited bank is robbed, the FBI is not constitutionally required to refrain from monitoring the beeper until it has obtained a warrant.

Department of Labor Jurisdiction to Investigate Certain Criminal Matters

The Attorney General may not delegate his authority to investigate labor crimes to the Secretary of Labor unless the Department of Labor has specific overlapping statutory authority to investigate those same offenses.

Section 601(a) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 521(a), precludes the investigation of violations of § 302 of the Labor Management Relations Act, 29 U.S.C. § 186, by the Department of Labor.

Section 805(b) of the Comprehensive Crime Control Act of 1984, 29 U.S.C. § 1136, did not alter the limitations on Department of Labor investigatory authority set forth in § 601(a) of the LMRDA.

Application of the Mansfield Amendment to the Use of United States Military Personnel and Equipment to Assist Foreign Governments in Drug Enforcement Activities

The Mansfield Amendment to the Foreign Assistance Act provides that “no officer or employee of the United States may engage in or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.” 22 U.S.C. § 2291(c). Although the question of what constitutes a “direct police arrest action” within the meaning of the Amendment is not unambiguously answered by the language of the statute, the legislative history demonstrates that Congress was animated by concern that United States officers and employees not participate directly in joint drug raids with foreign authorities. The Amendment should therefore be understood to prohibit participation in narcotics control activity that would under normal circumstances be likely to lead to the arrest of foreign nationals. It does not prohibit involvement of United States officers in activities that would not ordinarily involve arrests.

Assignment of Army Lawyers to the Department of Justice

The Department of Justice may appoint Army attorneys as special attorneys or Special Assistant United States Attorneys enabling them to perform litigation functions assigned by law to Department of Justice attorneys, provided, however, that the salaries and expenses of Army lawyers so serving must be paid from the Department’s own appropriation.

The Department of Justice may use Army attorneys, performing the functions traditionally performed by “agency counsel,” to assist the Department in its litigation functions; Army attorneys assisting the Department in this capacity may be paid with Army funds and need not be formally detailed to the Department.

The use of Army lawyers to assist the Department of Justice may violate the Posse Comitatus Act where they perform prosecutorial functions involving direct contact with civilians, unless such Army lawyers are detailed to the Department on a full-time basis and operate under the supervision of Department personnel.

Federal Equal Employment Opportunity Reporting Act of 1986

Legislation authorizing the Equal Employment Opportunity Commission (EEOC) to subpoena employees of federal agencies not in compliance with EEOC annual reporting requirements and to seek enforcement of such subpoenas in federal court would violate the doctrine of separation of powers by undercutting the President’s power to provide a single voice for the Executive Branch in the enforcement of the laws.

One part of the Executive Branch may not sue another part, as there can be no case or controversy between agencies that are all subject to the direction and control of the President.

The proposed legislation's expansion of EEOC litigating authority would also undercut the Attorney General’s ability to speak for the Executive Branch with a single voice in the courts.

Nominations for Prospective Vacancies on the Supreme Court

Under Article II, § 2, cl. 2 of the Constitution, the appointment process for judges consists of three steps: nomination by the President, advice and consent of the Senate, and appointment by the President. A President may nominate, and the Senate may confirm, a person to an office in anticipation that the office will be vacant during the President’s term of office. Confirmation without appointment does not confer any rights on the nominee; the President remains free to decide that he does not want to appoint a confirmed nominee. When the anticipated vacancy does not arise, no appointment of the confirmed nominee is possible.

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