Opinions

Opinions

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Title Headnotes
Applicability of the Federal Advisory Committee Act to the Native Hawaiians Study Commission

The Native Hawaiians Study Commission (Commission) was established to advise Congress, not the President or agencies in the Executive Branch, and is thus not subject to the Federal Advisory Committee Act (FACA). The Commission could become subject to the FACA if it were utilized to advise the President or agencies.

The Commission is not subject to the requirement of the Government in the Sunshine Act (GSA), which applies only to “agencies” a majority of whose members are appointed by the President with the advice and consent of the Senate. The Commission is not an “agency” as that term is defined for purposes of the GSA, since it was created to undertake studies and not to exercise independent authority. Moreover, none of its members is appointed with the advice and consent of the Senate.

The Attorney General’s Role as Chief Litigator for the United States

The following memorandum describes the development and present scope of the Attorney General’s role in representing the United States and its agencies in litigation. It discusses the policy reasons for the centralization of litigation authority in the Department of Justice, and analyzes the Attorney General’s relationship with client agencies. It also touches on the Attorney General’s authority to settle and compromise cases, and on his authority over litigation in international courts. It concludes that, absent clear legislative directives to the contrary, the Attorney General has plenary authority and responsibility over all litigation to which the United States or one of its agencies is a party, and that his discretion is circumscribed only by the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

Presidential Authority Over Wilderness Areas Under the Federal Land Policy and Management Act of 1976

Under the Federal Land Policy and Management Act of 1976 (FLPMA), the President is required to forward to the Congress his recommendations with respect to federal lands studied by the Bureau of Land Management for possible designation as wilderness. He has no authority to refuse to make recommendations for areas he believes unsuitable for wilderness designation, or to return such lands to multiple use management without congressional action upon his recommendation. Under the FLPMA, as under the Wilderness Act of 1964, only Congress has authority to determine whether an area should or should not be designated as wilderness.

The President’s Power to Impose a Fee on Imported Oil Pursuant to the Trade Expansion Act of 1962

The President has authority under § 232(b) of the Trade Expansion Act of 1962 to impose a license fee directly on foreign oil in order to restrict its importation in the interest of national security. However, the case law casts doubt on the President’s authority to act under § 232(b) when the impact of his action falls only remotely and indirectly on imported articles, as was the case when President Carter sought in 1980 to implement a program designed primarily to restrict domestic consumption of gasoline.

Prior to imposing a license fee on oil imports under § 232(b), the President is required to make certain findings, based on an investigation by the Secretary of Commerce, relating to the effects on the national security of oil imports, and to issue a proclamation.

Removal of Presidentially Appointed Regents of the Uniformed Services University of the Health Sciences

There is no statutory limitation on the President’s power to remove his appointees to the Board of Regents of the Uniformed Services University of the Health Sciences, and any such limitation would in any event be unconstitutional in light of the purely executive functions performed by these individuals.

Applicability of Certain Cross-Cutting Statutes to Block Grants Under the Omnibus Budget Reconciliation Act of 1981

Two block grant programs created by the Omnibus Reconciliation Act of 1981 are subject to four “cross-cutting” statutes barring discrimination on grounds of race, sex, handicap, and age, and activities funded under those programs are subject to all of the regulatory and paperwork requirements imposed by those statutes.

The language and legislative history of the four nondiscrimination laws at issue reveal that they were intended by Congress to be statements of national policy broadly applicable to all programs or activities receiving federal financial assistance. Therefore, in the absence of a clear expression of congressional intent to exempt a particular program from the obligations imposed by the four cross-cutting laws, those laws will be presumed to apply in full force.

While the general purpose of the block grant concept is to consolidate and “defederalize” prior categorical aid to state and local governments, and to lighten federal regulatory burdens, there is no suggestion in the legislative history of the two specific block grants at issue here that Congress intended to exempt programs or activities funded by them from the obligation not to discriminate embodied in the four cross-cutting statutes.

Review of Agency Schedule C Appointments by the Executive Office of the President

The Executive Office of the President may involve itself in reviewing an agency’s proposed Schedule C appointments, notwithstanding the President’s general delegation of his authority m this area to the Office of Personnel Management, by virtue of the President s continuing responsibility for supervising the performance of Executive Branch officials.

The Executive Office’s power to review Schedule C appointments may be limited in the case of the independent agencies, or when the organic act of an agency specifically precludes review by the Executive Office.

Acting Officers

An officer designated by a department head pursuant to a statute to perform the duties of a presidential appointee has the same authority as the officer for whom he acts, and may serve for an indefinite period notwithstanding the 30-day limitation of the Vacancy Act, though while acting he is entitled only to the salary of his regular position. There are, however, a number of practical and political reasons why the designation of acting officers should not be used as a substitute for appointment by and with the advice and consent of the Senate.

Potential infirmities in the authonty of the acting officer in any particular situation will be cured by the de facto officer rule.

Attribution of Outside Earned Income Under the Ethics in Government Act

The Federal Election Commission rule that allows federal employees to defer receipt of income from honoraria, so as to avoid the annual ceiling of $25,000 imposed by 2 U S.C. § 4411, does not apply to the provision m the Ethics in Government Act of 1978, which limits outside earned income for presidential appointees to 15 percent of their salary. For purposes of determining whether this 15 percent limit has been met, income will be attributed to the year in which the services relating to it were performed.

Recovery of Interest on Advance Payments to State Grantees and Subgrantees

Section 203 of the Intergovernmental Cooperation Act exempts both the states and their subgrantees from accountability for interest earned on federal grant funds pending their disbursement, and such interest may thus not be recovered by the federal government.

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