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Title Headnotes
Compatibility of New York City Local Law 19 With Federal Highway Act Competitive Bidding Requirements

New York City Local Law 19, which allows bidders who do not make the lowest bid to be awarded contracts in cases where the lowest bidder has not signed an anti-apartheid certificate, is incompatible with § 112 of the Federal Aid Highway Act, which requires that contracts for federally funded highway projects be awarded on the basis of competitive bidding. The Department of Transportation is therefore obligated to withhold funding for such contracts awarded subject to Local Law 19.

When Congress elects to distribute federal funds to states it may attach conditions to their distribution and, so long as those conditions are valid and clearly expressed, a state has no sovereign right to obtain or retain those federal funds without complying with the stated conditions. The Act’s conditioning of federal highway construction grants on compliance with competitive bidding requirements is valid and clearly expressed.

By imposing disadvantages on a class o f responsible contract bidders, Local Law 19 discourages responsible contractors from bidding and undermines the competitive bidding process. This departure from competitive bidding procedures was not justified by considerations of costeffectiveness, as required by the Act.

Legislative Proposal to Nullify Criminal Convictions Obtained Under the Ethics in Government Act

A proposed bill would have the effect of nullifying all criminal convictions obtained under the Ethics in Government Act since that Act was passed in 1978. Under the Pardon Clause of the Constitution, U.S. Const., art. II, § 2, cl. 1, the President has broad power to take action to relieve individuals who have violated federal laws. By contrast, the Constitution gives Congress no authority to legislate a pardon for any particular individual or class of individuals. Therefore, the proposed bill exceeds Congress’ power to legislate and would be an unconstitutional infringement on the President’s pardon power.

Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission

A part-time consultant for the Nuclear Regulatory Commission occupied a position of profit or trust under the United States such that he could not, consistent with the Emoluments Clause of the Constitution, accept employment with a private domestic corporation to perform work on a contract with a foreign government.

Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act

With one narrow exception, the Attorney General may not disclose to Congress the contents of any application or report filed with the court pursuant to the Independent Counsel Act unless the court agrees.

All congressional requests for information about a decision regarding the appointment of an independent counsel must be supported by a legitimate legislative purpose. In addition, before such disclosures are made other considerations, such as whether or not to assert executive privilege, whether the information is covered by the attomey-client privilege, and whether the information must be kept confidential to preserve the integrity of the prosecutorial function, must be reviewed.

Congress may not, as a matter of statutory or constitutional law, invoke the criminal contempt of Congress procedure against the head of an Executive agency acting on the President’s instructions to assert executive privilege in response to a congressional subpoena.

An assertion of executive privilege must be based upon an evaluation of the Executive Branch’s interest in keeping the requested information confidential, the strength of Congress’ need for the information, and whether those needs can be accommodated in some other way.

Constitutionality of South African Divestment Statutes Enacted by State and Local Governments

In response to conditions in South Africa, a number of state and local governments passed statutes or ordinances requiring the divestment of pension funds from companies that do business in South Africa or prohibiting governmental bodies from entering into contracts with such companies. The divestment laws survive constitutional scrutiny.

The divestment laws do not place an impermissible burden on foreign commerce. Under the market participation doctrine, the Supreme Court has held that proprietary, as opposed to governmental, actions of state and local governments may be shielded from the strictures of the Commerce Clause. The divestment laws fall within that doctrine. Nor do such laws represent an unconstitutional interference with the federal government’s foreign affairs power. Finally, such laws are not preempted by either the Export Administration Act or Executive Order No. 12532, which imposes certain economic sanctions on South Africa.

Congressional Authority to Adopt Legislation Establishing a National Lottery

Neither the Taxing Clause, Article I, § 8, cl. 1, nor the Necessary and Proper Clause, Article I, § 8, cl. 18, of the Constitution authorizes Congress to establish a national lottery.

Constitutionality of State Procedural Reform Provision in Superfund Legislation

A bill reauthorizing the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 contains a section that provides for a uniform federal commencement date for the running of state statutes of limitations in toxic tort actions. By operation of this provision, some actions previously time-barred under existing state law would be revived.

Under current case law, the bill would not be struck down as beyond the constitutional power of Congress. Although the effort to dictate the content of state law is inconsistent with well-established provisions of federalism, it cannot be said that this effort violates the Tenth Amendment as explained by the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

The retroactive aspects of the bill may be challenged as a denial of property without due process of law or as a taking of property without just compensation. A due process challenge would present difficult questions due to the existence of two lines of Supreme Court authority in apparent tension, and the bill may well be held to violate the Due Process Clause. The revival of a time-barred action probably would not constitute a taking under the ad hoc regulatory takings inquiry established by the Supreme Court.

State Regulation of an Insurance Program Conducted by the Export-Import Bank of the United States

Entities who participate as intermediaries with small businesses in an insurance program operated by the Export-Import Bank are subject to non-discriminatory state regulation of their activities.

Funding of Grants by the National Institutes of Health

The National Institutes of Health may, consistent with 31 U.S.C. § 1502(a), fund an entire research grant out of a single fiscal year’s appropriations regardless of how long it takes to complete the work under the grant.

Indemnification of Department of Justice Employees

The Attorney General may use funds from the Department of Justice’s general appropriation to indemnify Department employees for actions taken within the scope of their employment.


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