Opinions

Opinions

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Title Headnotes
Recess Appointments During an Intrasession Recess

The President may make interim recess appointments during an intrasession recess of eighteen days.

Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports

Section 129(e) of Pub. L. No. 102-138 and section 503 of Pub. L. No. 102-140 are unconstitutional to the extent that they purport to limit the President’s ability to issue more than one official or diplomatic passport to United States government personnel.

The single-passport requirements set forth in section 129(e) and section 503 are severable from the remainder of the statutes in which they appear.

The President is constitutionally authorized to decline to enforce the portions of section 129(e) and section 503 that purport to limit the issuance of official and diplomatic passports.

Transfers of Forfeited Property to State and Local Law Enforcement Agencies

Section 981(e)(2) of title 18 does not prevent a state or local law enforcement agency from retransferring to other state or local government agencies property that has been transferred from the federal government pursuant to that section. However, the Attorney General has authority under section 981(e) to prevent such a further transfer by imposing a contrary term of condition on the initial transfer from the federal government.

Section 881(e) of title 21 does not prevent a state or local law enforcement agency from retransferring to other state or local government agencies property that has been transferred from the federal government pursuant to that section. However, the Attorney General has authority under section 881(e) to forbid a further transfer if he determines that to do so would “serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies.”

Fourth Amendment Implications of Military Use of Forward Looking Infrared Radars Technology for Civilian Law Enforcement

Forward Looking Infrared Radars (FLIR) reconnaissance of structures on private lands does not constitute a search within the meaning of the Fourth Amendment.

Department of Defense personnel engaged in such surveillance would not be subject to liability for damages in a constitutional tort action.

 

Application of 18 U.S.C. § 205 to Proposed “Master Amici”

18 U.S.C. § 205 precludes attorneys in the executive branch from serving as “master amici” in the Court of Veterans Appeals.

Statutory Authority to Contract With the Private Sector for Secure Facilities

The Federal Bureau of Prisons has statutory authority to contract with the private sector for secure facilities.

Funding for the Critical Technologies Institute

The Department of Defense may make funds available to the National Science Foundation out of monies appropriated in the Department of Defense Appropriations Act, 1991, to support the activities of the Critical Technologies Institute during the 1992 fiscal year.

Congressional Pay Amendment

The Congressional Pay Amendment, which was originally proposed by Congress to the States for ratification in 1789, and having been ratified by three-fourths of the States, has been ratified pursuant to Article V and is accordingly now part of the Constitution.

Under 1 U.S.C. § 106b, the Archivist was, upon receipt of formal instruments of ratification from the requisite number of States, required to publish the Congressional Pay Amendment along with his certificate specifying that the Amendment has become valid, to all intents and purposes, as part of the Constitution.

Marketing Loans for Grains and Wheat

The formulas in the Food, Agriculture, Conservation, and Trade Act of 1990, under which farmers repay loans from the Department of Agriculture, contain a scrivener’s error in the organization of the subsections, and the provisions should be read as if the error, which arose in the process of enrollment, had not been made.

Under section 1302 of the Omnibus Budget Reconciliation Act of 1990, marketing loan provisions that previously had been discretionary would be mandatory for the 1993 through 1995 crop years, if an agricultural trade agreement under the Uruguay Round Negotiations pursuant to the General Agreement on Tariffs and Trade were not entered into by June 30, 1992, or if this agreement had not entered into force for the United States by June 30, 1993.

Proposed Federal Abortion Legislation

The proposed legislation would enact a federal statutory regime of abortion regulation that leaves the States with substantially less regulatory authority than they have under Roe v. Wade or Planned Parenthood v. Casey.

The proposed legislation would represent a doubtful exercise of Congress’ power to enforce the Fourteenth Amendment and would rest on a questionable link to Congress’ power to regulate interstate commerce.

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