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Title Headnotes
Authority to Transfer Forfeited Property to the General Services Administration for Potential Sale to a Municipality

The Attorney General has authority under 21 U.S.C. § 881(e)(3) to transfer to the General Services Administration real property forfeited to the United States Pursuant to the drug laws. Under 40 U.S.C. § 484(k)(2), if GSA determines that the property is needed to carry out neither its own responsibilities nor the responsibilities of any other federal agency, it may assign the property to the Secretary of the Interior upon the Secretary’s recommendation that the property be used as a public park. This statute also allows the Secretary to sell the land for public park or recreational purposes to a municipality. If warranted by the public benefit that would accrue from use o f the land as a park or recreation area, the sales price might be so heavily discounted as to be normal.

Constitutionality of a Judicial Review Provision Providing for Automatic Affirmance of Agency Decisions

The Northeast Interstate Low-Level Radioactive Waste Management Compact would establish a Commission whose final administrative decisions would be subject to review in the United States Court of Appeals for the District of Columbia Circuit. A proposed amendment to a bill granting the consent of Congress to the Compact provides that if review is sought of the Commission’s decision relative to the designation of a “host state” for a regional radioactive waste disposal facility and the court of appeals does not rule within ninety days after the petition for review has been filed, the Commission’s decision “shall be deemed to be affirmed.”

This provision raises serious constitutional problems that implicate the doctrine of separation of powers. Although Congress has broad authority to prescribe rules concerning judicial practice, procedure, jurisdiction, and remedies and to establish the substantive law that governs judicial decisions, the proposed amendment exceeds this authority by effectively exercising the core judicial function of deciding particular cases.

Taxability of Indian Treaty Fishing Income

Various treaties between the United States and Indian tribes secure to the Indian signatories the “right of taking fish at all usual and accustomed grounds and stations.” In determining whether income derived from the exercise of these fishing rights is subject to federal tax, the relevant analysis is that employed by the Supreme Court in Squire v. Capoeman, 351 U.S. 1 (1956). Squire held that Indians are subject to the payment of income taxes as are other citizens unless a tax exemption is “clearly expressed” in an applicable treaty or statute. Squire also held that in analyzing a particular treaty or statute applicable to Indians, ambiguous language should be construed in the Indians’ favor. The Tax Court has properly resolved the inherent tension between these two canons of construction by concluding that income earned by Indians from the exercise of treaty fishing rights is subject to the federal income tax.

Ability of the Environmental Protection Agency to Sue Another Government Agency

Before a lawsuit is justiciable under Article III of the Constitution, there must be a genuine controversy appropriate for judicial resolution. There must be a concrete adversity of interest between the opposing parties, because an Article III court may not decide a collusive suit or render an advisory opinion. Accordingly, courts must insist that the real party in interest challenging the Executive Branch’s position not itself be an agency of the Executive Branch. In this way, courts will avoid hearing potentially collusive lawsuits and performing functions committed by the Constitution to the President.

There are no cases in which disputes between two agencies, both of whose heads serve at the pleasure of the President, have been found to be justiciable. In two recent Superfund enforcement actions initiated by the Environmental Protection Agency, the defendants attempted to join other federal agencies as co-defendants. In both cases, the courts rebuffed the attempts on the ground that the United States may not sue itself. Accordingly, a suit brought by the EPA against the Department of Energy, or any other Executive Branch agency whose head serves as the pleasure of the President, would be nonjusticiable.

Delegation of Authority to Approve DEA Undercover Operations

The general rule with respect to delegations is that any statutorily conferred authority is delegable, at least in the absence of any indication of congressional intent that the official named must personally exercise the authority conferred upon him.

The Attorney General and the Administrator of the Drug Enforcement Administration may delegate their respective authority to approve DEA undercover operations pursuant to § 203(b)(1) of Pub. L. No. 98-411, 98 Stat. 1545, 1559–60 (1984). Nothing in the language, purpose, or legislative history of the statute demonstrates an intent to preclude delegation. Rather, the statute reflects the common legislative practice of conferring general authority
upon the head of a department or agency.

Legislation Providing for Court-Ordered Disclosure of Grand Jury Materials to Congressional Committees

Proposed legislation authorizing personnel of committees of Congress to obtain court-ordered release of matters occurring before a grand jury would violate separation of powers principles by encroaching upon the Executive’s control of prosecutorial matters and would entail a major departure from longstanding practices and traditions of grand jury secrecy.

Because the Executive alone is entrusted with the power to enforce the laws, the Executive alone should make the day-to-day decisions as to whether the release of law enforcement materials to Congress would interfere with its prosecutorial discretion.

Independent access by Congress to grand jury materials without the consent of the Department of Justice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an institution.

Access to grand jury materials by other Executive Branch agencies should be limited to cases where access is needed for law enforcement purposes and should require the approval of the Justice Department.

Reimbursement of the Department of Justice for Providing Legal Assistance to the Department of Health and Human Services

The Department of Justice may be legally reimbursed by the Department of Health and Human Services (HHS) for attorney services provided pursuant to the Economy Act, through the employment of additional attorneys in the Office of the United States Attorney, to assist in the defense of HHS against claims filed under the Social Security Act in federal district court.

Attorneys employed in that capacity using HHS funds may not “conduct” litigation, but may only “assist” in litigation, because the Justice Department has the exclusive obligation and authority to conduct litigation on behalf of the United States and HHS has no independent litigation authority.

In order to justify the foregoing arrangements under the Economy Act, HHS must demonstrate that it is more economical or efficient to purchase such services from the Department of Justice than to provide the services itself.

Federal Agencies Use of Volunteer Services Provided by Individuals and Organizations Under Proposed Legislation

Proposed legislation authorizing federal agencies to accept voluntary services from individuals and non-profit organizations would present potential conflicts with statutory requirements that certain activities must be conducted by government employees authorized to act on behalf of the United States.

The performance of services for federal agencies by volunteers raises especially significant concerns in terms of federal conflict of interest laws. Although voluntary service legislation may exempt volunteers from the coverage of those laws, the use of volunteers to perform government services could raise the very opportunities for self-dealing and abuse of position that the conflict of interest laws are intended to prevent.

Limitations on Presidential Power to Create a New Executive Branch Entity to Receive and Administer Funds Under Foreign Aid Legislation

The President lacks constitutional and statutory authority to create a new entity within the Executive Branch to receive and administer funds appropriated under the International Security and Development Act of 1985 (ISDA).

The Appointments Clause in the Constitution requires that “offices” of the United States be established “by Law.” Any agency created to receive and administer funds appropriated under the ISDA would have to be headed by an officer of the United States, who would occupy an “office” of the United States. Such new offices of the United States must be created or authorized by Congress through enactment of legislation.

Presidential creation of the United States Sinai Support Mission under Executive Order No. 11896 does not provide persuasive precedent for Presidential creation of a new agency to administer funds under the ISDA. In that situation, the President was able to rely upon authorization provided by § 631 of the Foreign Assistance Act of 1961, which gave the President power to establish “missions” abroad.

State Bar Disciplinary Rules as Applied to Federal Government Attorneys

The purported imposition of exclusive disciplinary jurisdiction by state courts upon federal lawyers acting in the scope of their federal authority is subject to the overriding requirements of the Supremacy Clause. Rules promulgated by state courts or bar associations that are inconsistent with the requirements or exigencies of federal service may violate the Supremacy Clause.

Although Department of Justice authorization statutes have implicitly recognized that federal attorneys may be subject to reasonable conditions of state bar membership and to state ethical rules of general application, the imposition of state rules of conduct which penalize or interfere with the performance of authorized federal responsibilities is not recognized or approved by such statutes.

To the extent that a proposed state bar rule asserting “exclusive” disciplinary jurisdiction implies an exclusive right to judge the conduct of federal attorneys by state ethical standards, to impose state sanctions, or to displace any federal forum, it would raise serious issues under the Supremacy Clause.


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