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Opinions

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Title Headnotes
Permissibility of Recess Appointments of Directors of the Federal Housing Finance Board

Where the Senate has failed to act during a Session of Congress on the nomination of a person to an office, and that person is then serving in that office by recess appointment, the President may make a second recess appointment of that person to the position when the previous recess commission expires.

Although the payment of compensation to successive recess appointees is generally deemed prohibited by 5 U.S.C. § 5503(a), that prohibition does not apply to positions that are not paid out of appropriated funds.

Legal Obligations of the United States Under Article 33 of the Refugee Convention

Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees does not impose any domestic legal obligations on the United States with respect to individuals interdicted outside its territory as part of an effort to control mass illegal migration to the United States.

Comptroller General’s Authority to Relieve Disbursing and Certifying Officials From Liability

Statutory provisions purporting to authorize the Comptroller General, an agent of Congress, to relieve certifying and disbursing officials in the executive branch from liability for illegal or improper payments are unconstitutional.

Authority of the Nuclear Regulatory Commission to Collect Annual Charges from Federal Agencies

The Nuclear Regulatory Commission has statutory authority to collect annual charges from federal agencies that hold licenses issued by the NRC.

Liability of the United States for State and Local Taxes on Seized and Forfeited Property

Property seized by, and ultimately forfeited to, the federal government is not subject to state and local taxes that arise after the date of the offense that leads to the order of forfeiture.

Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees

Section 219(a) of Title 18 of the United States Code applies to members of federal advisory committees, including the Advisory Committee for Trade Policy and Negotiations, that are governed by the Federal Advisory Committee Act.

Section 219(b) may be used to exempt advisory committee members who are “special government employees,” but may not be used to exempt “representative” members, who are generally not considered government employees.

The Emoluments Clause prohibits an individual who is an agent of a foreign government from serving on an advisory committee, unless Congress has consented to such service.

Indemnification of Treasury Department Officers and Employees

The Department of Treasury may use its general appropriations funds to indemnify any of its officers and employees against personal liability for conduct arising out of actions taken within the course and scope of their employment, if the Department concludes that such indemnification is necessary to ensure effective performance of the Department’s mission.

28 U.S.C. § 2006 and 26 U.S.C. § 7423(2) also provide specific authority for the Department of the Treasury to indemnify, in certain circumstances, officers and employees who collect tax revenue and who enforce federal tax laws.

Severability of Legislative Veto Provision

A legislative veto provision in the Selective Service Act, which would authorize either House of Congress to disapprove contracts in excess of $25,000,000, is unconstitutional under Immigration and Naturalization Service v. Chadha, but is severable from the rest of the statute.

This unconstitutional provision must be severed from the statute in its entirety, including its language calling for notification to Congress of proposed contracts.

Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies

The Department of Defense has statutory authority to assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within structures located on private property by providing them with aerial reconnaissance that uses Forward Looking Infrared Radars technology.

Application of the Airport and Airway Improvement Act to the Proposed Lease of the Albany County Airport

Section 511(a)(12) of the Airport and Airway Improvement Act permits an airport owner or operator to recoup its unreimbursed capital or operating costs from airport revenues, regardless of when the expenses were incurred. The Federal Aviation Administration, however, in the exercise of discretion conferred upon the Secretary of Transportation by the Act, may oversee the rates charged to airport users by private lessees to ensure that such rates remain fair and reasonable.

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