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Proposed Constitutional Amendment to Limit the Tenure of Judges

A proposed constitutional amendment to limit the tenure of judges to a term, subject to reconfirmation, is antagonistic to the overall structural design of the Constitution.

The present guarantee of judicial tenure “during good Behaviour," U.S. Const. art. III, § 1, is necessary to secure independence and impartiality. Judges limited by term and subject to reappointment will be unacceptably dependent upon the political branch exercising the power of appointment.

Under the specific proposal the appointing authority would be the Senate, thereby frustrating the present delicate balance between the legislative and executive branches that exists with respect to judicial appointments.

Application of the Resource Conservation and Recovery Act to the Department of Energy’s Atomic Energy Act Facilities

The nuclear production and weapons facilities that are operated by the Department of Energy (DOE) pursuant to the Atomic Energy Act (AEA) are generally subject to the requirements of the Resource Conservation and Recovery Act (RCRA) governing the disposal of solid wastes, including applicable standards, regulations, permit requirements, and enforcement mechanisms. 42 U.S.C. § 6961.

Particular RCRA regulations or requirements may not apply to DOE facilities when the application of such regulation or requirement would be inconsistent with specific requirements of the AEA that flow directly from DOE’s statutory mandate to develop and use atomic energy. 42 U.S.C. § 6905(a).

Whether a particular RCRA regulation or requirement is inconsistent with the requirements of the AEA must be analyzed by DOE and the Environmental Protection Agency on a case-by-case basis. However, § 1006(a) of RCRA, 42 U.S.C. § 6905(a), should relieve DOE from compliance with RCRA regulations or requirements (1) if they conflict with prescriptive directives contained in the AEA itself, such as the AEA restrictions on public disclosure of restricted data; (2) if compliance would prevent DOE from carrying out authorized AEA activities; or (3) if compliance would be inconsistent with specific operational needs of a facility that are unique to the production of nuclear material or components. In addition, a state may not exercise veto power over the establishment or operation of a DOE facility, either by denying necessary permits, or by seeking injunctive relief, because of noncompliance with a RCRA regulation that is inconsistent with the AEA.

Constitutionality of the Social Security Act Amendments of 1983

An amendment to the Social Security Act repealing the exemption for nonprofit organizations, including religious organizations, thereby requiring such organizations to pay and withhold tax with respect to the Social Security Fund, does not violate the First Amendment’s Free Exercise or Establishment Clauses.

Assuming the tax payment and withholding requirement conflicts with the free exercise of religion in some cases, the government nevertheless has an overriding interest in securing the financial solvency of the fund and making sure that its coverage is comprehensive.

The repeal of the exemption does not violate the Establishment Clause because it has a clear secular purpose, does not inhibit or advance religion because it is neutral in its general application, and does not excessively entangle the government with religion. Social Security taxes are like other business and income taxes to which religious organizations are already subject.

Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress

Congress may constitutionally authorize the Special Counsel of the Merit Systems Protection Board to conduct any litigation in which he is interested, except litigation in which the Special Counsel’s position would be adverse to that taken by the United States in the same litigation. Such opposition would place the President in the untenable position of speaking with conflicting voices in the same lawsuit. In addition, because the Special Counsel is an Executive Branch officer subject to the supervision and control of the President, a grant by Congress to the Special Counsel of authority to submit legislative proposals directly to Congress without prior review by the President would raise serious separation of powers concerns.

Acting Attorneys General

From 1870 until 1953, the Solicitor General served as Acting Attorney General in the event that the office of Attorney General was vacant or the Attorney General was absent or disabled. This plan of succession was modified by Reorganization Plan No. 4 of 1953 and by the codification in 1977 at 28 U.S.C. § 508 providing for the following statutory succession: Deputy Attorney General, Associate Attorney General, and in such order as the Attorney General shall designate, the Solicitor General and the Assistant Attorneys General.

Constitutionality of Proposed Regulations of Joint Committee on Printing

Proposed regulations issued by the Joint Committee on Printing, which purport to regulate a broad array of printing activities of the Executive Branch, are not authorized by statute.

The proposed regulations are unconstitutional on two grounds. First, because members of the Joint Committee on Printing are not appointed in accordance with the Appointments Clause, art. II, § 2, cl. 2 of the Constitution, they may not perform Executive functions, such as rulemaking, which may be performed only by properly appointed Officers of the United States. Second, the delegation of legislative power to the Joint Committee on Printing violates the constitutional requirements for legislative action, bicameral passage and presentment to the President.

Proposed Legislation to Restrict the Sales of Alcoholic Beverages in Interstate Commerce

Proposed legislation to prohibit the sale in interstate commerce of alcohol to persons under the age of 21 is a valid exercise of Congress’ power under the Commerce Clause and consistent with the Twenty-First Amendment. The Twenty-First Amendment permits states to enact legislation more restrictive than would otherwise be permissible under the Commerce Clause; however, it does not deprive the federal government of any authority over alcohol under the Commerce Clause.

The proposed legislation would not be “in violation” of more permissive state laws. Even if it were read to be “in violation” of such laws, a court would likely find that the federal interest in preventing damage to national commerce outweighed any particular state’s interest in permitting access to liquor for persons under age 21.

Application of the Neutrality Act to Official Government Activities

Section 5 of the Neutrality Act, 18 U.S.C. § 960, forbids preparation for, or participation in, military expeditions against a foreign state with which the United States is at peace. This provision is intended solely to prohibit persons acting in a private capacity from taking actions that might interfere with the foreign policy and relations of the United States. It does not proscribe activities conducted by Government officials acting within the course and scope of their duties as officers of the United States.

Effect of INS v. Chadha on the Authority of the Secretary of Defense to Reorganize the Department of Defense Under U.S.C. § 125

The Secretary of Defense retains authority under 10 U.S.C. § 125 to effect reorganizations of all functions of the Department of Defense, notwithstanding the Supreme Court’s decision in INS v. Chadha invalidating the legislative veto. An analysis of the legislative history of 10 U.S.C. § 125 with respect to the presumptions in favor of severability indicates that the unconstitutional veto provisions in that statute, which permitted either House of Congress to reject a proposed reorganization involving a “major combatant function” that would “tend to impair the defense of the United States,” as determined by its Armed Services Committee, are severable from the delegation of authority to the Secretary. However, the Secretary must continue to report all reorganization plans to Congress and wait thirty days before taking action.

Indemnification Agreements and the Anti-Deficiency Act

In order to comply with the Anti-Deficiency Act, 31 U.S.C. § 1341, indemnification agreements with government contractors, if otherwise authorized, must include a limitation on the amount of liability and must state both that the liability is further limited to the amount of appropriated funds available at the time payment must be made, and that the contracting agency implies no promise that Congress will appropriate additional funds to meet any deficiency in the event of loss.

A government agency may not indemnify its contractors for claims brought against them by reason of their own negligence. Nor may the United States agree in advance to assume liability for the negligence of its employees for which it may not otherwise be responsible under the Federal Tort Claims Act.

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