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.

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