|Date of Issuance||Title||Headnotes|
|01/05/1988||Applicability of the Federal Advisory Committee Act to Presidential Task Force on Market Mechanisms||
The Presidential Task Force on Market Mechanisms is exempt from the requirements of the Federal Advisory Committee Act.
|01/12/1988||Applicability of 18 U.S.C. §§ 212 and 213 to FDIC Examiners’ Obtaining of Credit Cards From State-Chartered FDIC-Insured Nonmember Banks||
Proposed FDIC regulations allowing FDIC examiners to obtain credit cards from insured state nonmember banks (subject to the condition that those examiners are not authorized to examine the banks that have issued the cards) are consistent with the provisions of 18 U.S.C. §§ 212 and 213, prohibiting loans between a bank examiner and banks which that examiner examines, or has the authority to examine.
|01/15/1988||Representation of the United States Sentencing Commission in Litigation||
The Attorney General may, consistent with 28 U.S.C. § 516, permit the United States Sentencing Commission to independently present as amicus curiae its views respecting its status and authority to a court in litigation where it has been named as a party defendant.
The Justice Department remains responsible for conducting the litigation, for representing the Sentencing Commission as a party defendant, and for exercising its own independent judgment as to the position of the United States on the merits of the issues involved.
If the Sentencing Commission chooses independently to present its views in court, it may do so only through individuals properly appointed as officers o f the United States pursuant to the Appointments Clause of the Constitution.
Although any counsel appointed to present the Sentencing Commission’s position would be subject to the criminal conflict of interest laws, the consequences of coverage can be mitigated somewhat for temporary or part-time employees in the executive branch by their appointment as “special government employees” under 18 U.S.C. § 202(a). Because this designation is not available for judicial branch appointees, the Sentencing Commission may wish to ask the Attorney General to appoint as a special government employee any private counsel retained by it to represent its views in court.
|02/01/1988||Legal Constraints on Lobbying Efforts in Support of Contra Aid and Ratification of the INF Treaty||
The Administration may expend appropriated funds on grass-roots lobbying and assistance to private groups in support of ratification of the Intermediate-Range Nuclear Forces Treaty, but it may not communicate its support of the treaty through the undisclosed use of third parties.
The President, his aides, and cabinet officials may use appropriated funds for grass-roots lobbying in support of aid to the Contras until legislation is introduced. Although activities having the principal purpose of grass-roots lobbying would be prohibited after legislation is introduced, Administration officials could still engage in a wide variety of informational activities, such as writing letters, giving speeches, and briefing opinion leaders, as long as such communications on behalf of the Contras are not made in the guise of third parties.
|03/04/1988||Constitutionality of Amended Version of the Indian Land Consolidation Act||
As amended, the Indian Land Consolidation Act should survive a constitutional challenge under the Takings Clause of the Fifth Amendment because it does not completely abolish both descent and devise of Indian trust lands.
Consistent with the Due Process Clause, the amended Act may be applied only to those allottees given a “reasonable opportunity” to arrange their affairs to avoid escheat.
|03/11/1988||Statute Limiting the President’s Authority to Supervise the Director of the Centers for Disease Control in the Distribution of an AIDS Pamphlet||
Statutory provision requiring the Director o f the Centers for Disease Control to distribute an AIDS information pamphlet to the public “without necessary clearance of the content by any official, organization or office” violates the separation of powers by unconstitutionally infringing upon the President’s authority to supervise the executive branch.
|03/15/1988||Constitutionality of Seizing the Passports of Individuals Found to Be Importing Controlled Substances Into the United States||
A Customs Service directive to seize as evidence of a federal crime the passports of individuals found to be importing controlled substances into the United States would not implicate the Fourth or Fifth Amendments to the United States Constitution, nor give rise to any valid constitutional claims of denial of due process or deprivation of freedom to travel.
|03/30/1988||Authority to Advance Funds to Cuban Detainees to Purchase Commissary Items||
The Director of the Bureau of Prisons has the authority under 18 U.S.C. § 4042 to direct that money from general prison operating funds be advanced to indigent Cuban detainees as a credit to their commissary accounts.
|04/12/1988||Authority of Foreign Law Enforcement Agents to Carry Weapons in the United States||
No federal statutes generally authorize foreign law enforcement agents to carry firearms in the United States. In particular, 18 U.S.C. § 951 does not provide such authority.
Absent congressional consent, the Emoluments Clause precludes foreign agents from enforcing federal laws. 19 U.S.C. § 1401(i) does not constitute such consent.
The President does not possess inherent authority to designate foreign agents to carry firearms in the United States in order to enforce federal law.
|04/29/1988||Disclosure of Advisory Committee Deliberative Materials||
The Federal Advisory Committee Act requires advisory committees to make available for public inspection written advisory committee documents, including predecisional materials such as drafts, working papers and studies.
The disclosure exemption available to agencies under exemption 5 of the Freedom of Information Act for predecisional documents and other privileged materials is narrowly limited in the context of the Federal Advisory Committee Act to privileged inter-agency or intra-agency documents prepared by an agency and transmitted to an advisory committee.