Opinions

Individuals must be appointed pursuant to the Appointments Clause only if they (1) occupy a continuing position that is part of the federal government for constitutional purposes, and (2) exercise significant authority pursuant to the laws of the United States.

The Controlled Substances Act, 21 U.S.C. §§ 873(b) and 878, authorizes the Attorney General to designate Homeland Security Investigations special agents, regardless of whether their duties ordinarily include CSA investigations, as well as state and local law enforcement officers serving on HSI task forces, to investigate drug offenses ordinarily within the Drug Enforcement Administration’s sole jurisdiction.

When investigating drug offenses pursuant to such designations, all HSI personnel (including state and local law enforcement personnel serving as task force officers) must operate under DEA’s supervision.

Congress may not constitutionally use its inherent power of contempt to arrest, fine, or otherwise punish an Executive Branch official for complying with the President’s assertion of executive privilege over materials subpoenaed by a congressional committee.

A congressional committee’s subpoena for the Secretary of State’s appearance on a date that would prevent the Secretary from fulfilling the President’s directive to represent the United States at a major diplomatic event would unconstitutionally interfere with the President’s authority to conduct the Nation’s foreign affairs. The subpoena requiring the Secretary’s appearance on that date is invalid and lacks legal effect, and the Secretary may not be punished by civil or criminal means for failing to appear on that date.

Although the Randolph-Sheppard Act generally requires federal agencies to give a preference to blind vendors when authorizing vending facilities on property they control, Congress in 31 U.S.C. § 5136 exempted the relevant operations of the United States Mint from that requirement. The regulations of the Department of the Treasury implementing the Act, which predate 31 U.S.C. § 5136, also do not require the Mint to follow the Act’s preference requirements.

When the Equal Employment Opportunity Commission awards past pecuniary damages against a federal agency pursuant to 42 U.S.C. § 2000e-16(b), it may apply the collateral source rule to decline to deduct insurance benefits that a claimant received through the Federal Employees Health Benefits program.

Under the Miscellaneous Receipts Act, the Department of Justice must deposit into the general fund of the Treasury the proceeds of a settlement under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. Although this settlement in part reflected losses by the National Credit Union Administration’s Share Insurance Fund, the “refunds to appropriations” exception to the Miscellaneous Receipts Act does not apply.

The organic statute of the United States International Development Finance Corporation does not impliedly exempt DFC’s political risk insurance of debt from the budgeting and accounting rules imposed by the Federal Credit Reform Act of 1990.

The President may assert executive privilege over audio recordings of Special Counsel Robert K. Hur’s interviews of the President and his ghostwriter subpoenaed by the Committee on the Judiciary and the Committee on Oversight and Accountability of the House of Representatives.

The President may make a protective assertion of executive privilege with respect to any remaining materials responsive to the subpoenas that have not already been produced.