Opinions

Opinions

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Provisions of the Special Foreign Assistance Act of 1986Relative to the Assets of Jean Claude Duvalier

Section 204 of the Special Foreign Assistance Act of 1986 requires the President to freeze or otherwise prevent the dissipation of assets, allegedly stolen by the former president of Haiti, that are the subject of litigation to determine their ownership. The President is not required to freeze assets that are not the subject of litigation by the government of Haiti.

Release of Information Collected Under the Agricultural Marketing Agreement Act of 1937

A provision in the appropriations act for the Department of Agriculture relating to the release of information collected under the Agricultural Marketing Agreement Act of 1937 does not restrict the use of such information in the Department’s rulemaking proceedings, in its prosecution of enforcement proceedings, or in its defense of regulatory actions under the 1937 Act. The restriction was intended solely to limit the Department’s discretionary release of information to members of the public in response to Freedom of Information Act or other requests.

Application of Establishment Clause to School “Voucher” Program

A draft bill proposing issuance of compensatory education certificates to parents of eligible school children would not on its face violate the Establishment Clause even if the certificates would be redeemable at religious private schools.

Legal Effect of Joint Resolution Disapproving the President’s Pay Recommendations

A joint resolution of Congress disapproving the President’s pay recommendations under the Federal Salary Act of 1967 has no legal force when the joint resolution was passed by one house after the expiration of the statutorily prescribed 30-day period for Congress to disapprove the recommendations. The recommended pay raises are therefore effective. Congress remains free, however, to repeal those pay raises through legislation for that purpose.

Proposed Legislation Providing Authority for the Armed Forces to Recover Remains of Persons Deceased as a Result of Armed Forces Operations

Congress’ authority to make rules for the United States armed forces under the Constitution, art. I, § 8, cl. 14, allows it to enact legislation governing the recover of the remains of members of the armed forces. Any grant to the armed forces of jurisdiction over the remains of nonmilitary persons killed as a result of armed forces operational activities, however, may exceed Congress’ constitutional authority.

Constitutionality of Proposed Legislation Requiring Renomination and Reconfirmation of Executive Branch Officers Upon the Expiration of a Presidential Term

A bill prohibiting the heads of Executive and Military Departments and certain other Executive officers from remaining in their positions during a subsequent Presidential term unless renominated by the President and reconfirmed by the Senate would, if applied to officers appointed before the bill was enacted, unconstitutionally interfere with the President’s appointment and removal powers. Even were the bill limited to prospective effect, it would be subject to serious constitutional doubt as contrary to the Constitution’s placement of the Executive power in the President.

Relevance of Senate Ratification History to Treaty Interpretation

The most relevant extrinsic evidence of a treaty’s meaning are exchanges between the parties negotiating it, i.e., the President and the foreign power. The portions of the ratification record entitled to the greatest weight are representations of the Executive, who is in essence the draftsman of the treaty. The Senate’s advice and consent function was designed by the Framers as a check on the President’s treaty-making power, and the Senate’s deliberations cannot be ignored altogether. Nonetheless, in all but the most unusual cases, the ratification record is not the determinative source of evidence as to the treaty’s meaning under domestic law.

Temporary Workers Under § 301 of the Immigration Reform and Control Act

“Temporary” work under § 301 of the Immigration Reform and Control Act of 1986, which permits aliens to enter the United States temporarily to perform “temporary” services or labor, refers to any job where the employer’s need for the employee is temporary. The nature of the underlying job and, in particular, whether the underlying job itself can be described as permanent or temporary, is irrelevant.

Constitutionality of Proposed Budget Process Reform Legislation

Proposed legislation that would assign the Congressional Budget Office the duty to determine whether a spending bill would exceed current spending limits, thereby requiring a supermajority (two-thirds) vote in each House of Congress for passage, is constitutional. Such a delegation would not raise problems under INS v. Chadha, because Congress may by rule require a supermajority majority vote in each House for passage of certain legislation under Art. I, § 5, cl. 2.

The proposed legislation may also subject spending bills passed in this manner to rescission by the President. With respect to entitlements, however, Congress must enact legislation specifically making the expenditure of a certain percentage of the appropriated funds non-mandatory before such rescission authority may be exercised.

Damages and Arbitration Provisions in Proposed Amendments to the Fair Housing Act

Certain proposed amendments to the Fair Housing Act would provide that parties may voluntarily submit their dispute to an arbitrator empowered to impose compensatory and punitive damages (as opposed to equitable relief or restitution). These amendments would be permissible under the Seventh Amendment because they amount to a waiver of a right, that would otherwise obtain, to a jury trial on compensatory and punitive damages. The amendments also comport with the strictures of Article III. The Supreme Court has held that Article III strictures cannot be waived, but the Court also has found that purely voluntary procedures severely minimize any Article III concerns.

Other aspects of the proposed amendments to the Fair Housing Act, which authorize mandatory proceedings before an arbitrator or administrative law judge with the power to award compensatory and punitive damages, would likely not survive scrutiny under the Seventh Amendment and Article III. The cause of action created by the Fair Housing Act appears to be derived from a common law action that is historically within the exclusive preserve of Article III courts operating with a jury. Furthermore, the right at issue is private in nature, in that it is intended to determine the liability of one individual to another. In addition, the housing market is not a specialized area of administrative regulation by the Federal Government.

Finally, the Fair Housing Act setting does not seem to involve an imperative necessity for Congress to choose an administrative remedy, as demonstrated by the fact that judicial proceedings would remain available to plaintiffs and there would be only minimal differences in the relief available in the administrative and judicial forums. Under the Supreme Court’s admittedly confusing and inconsistent precedents, these factors suggest that the proposed mandatory administrative proceedings would not comport with Article III or the Seventh Amendment.

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