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Title Headnotes
Constitutionality of Federal Government Efforts in Contracting With Women-Owned Businesses

This statement presents the Justice Department’s views on the federal government’s efforts to contract with women-owned businesses in a manner consistent with the Constitution and federal statutes. Because the Justice Department’s position on federal contracting programs that employ gender preferences is based on constitutional and legal standards that are not specific to the program addressed by the recently published Small Business Administration rule, the statement focuses on the legal standards that govern the Department’s approach to such programs generally.

Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007

Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007 does not prohibit DHS or OMB officials from reviewing, in accordance with established Executive Branch review and clearance procedures, the DHS Chief Privacy Officer’s draft section 802 reports before the reports are transmitted to Congress.

Section 802(e)(1) is best interpreted not to prohibit DHS and OMB officials from commenting on a draft CPO report where the CPO is permitted to, and in fact does, transmit to Congress a final report that does not reflect the comments or amendments from such officials.

Section 802(e)(1)’s direct reporting requirement need not be enforced in circumstances where its application would require the CPO to ignore the results of the President’s review, through DHS and OMB, of a particular report. In such circumstances, the statute must yield to the President’s exercise of his constitutional authority to supervise subordinate Executive Branch officers and their communications with Congress.

Payment of Back Wages to Alien Physicians Hired Under the H-1B Visa Program

The statute authorizing the H-1B visa program does not waive the federal government’s sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the Department of Veterans Affairs under the program is barred by sovereign immunity.

Office of Government Ethics Jurisdiction Over the Smithsonian Institution

The authority of the Office of Government Ethics to administer the Executive Branch ethics program under the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian Institution or its personnel.

Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress

The Department of Justice may not bring before a grand jury criminal contempt of Congress citations, or take any other prosecutorial action, with respect to current or former White House officials who declined to provide documents or testimony, or who declined to appear to testify, in response to subpoenas from a congressional committee, based on the President’s assertion of executive privilege or the immunity of senior presidential advisers from compelled congressional testimony.

Promotions of Judge Advocates General Under Section 543 of the National Defense Authorization Act for Fiscal Year 2008

Section 543 of the National Defense Authorization Act for Fiscal Year 2008 does not automatically advance incumbent Judge Advocates General to a three star general officer grade, but rather such promotion requires a separate appointment by the President, by and with the advice and consent of the Senate.

The incumbent Judge Advocates General may continue to serve out their full terms in their present two star grades, though the President may nominate them for promotion to the higher grade at any time, if he so chooses.

Validity of the Food, Conservation, and Energy Act of 2008

Where a title in the version of the Food, Conservation, and Energy Act of 2008 passed by both houses of Congress was inadvertently omitted from the enrolled bill that was presented to and vetoed by the President, the version of the bill presented to the President became law upon Congress’s successful override of the President’s veto.

Authority of the Environmental Protection Agency to Hold Employees Liable for Negligent Loss, Damage, or Destruction of Government Personal Property

The Environmental Protection Agency may hold its employees liable for the negligent loss, damage, or destruction of government personal property or for the unauthorized personal use of agency-issued cell phones.

Admissibility in Federal Court of Electronic Copies of Personnel Records

Federal official personnel and civil service retirement records that have been converted from paper to electronic format should be admissible in evidence in federal court under the Business Records Act, 28 U.S.C. § 1732, and should also qualify as “public records” admissible under Rule 1005 of the Federal Rules of Evidence.

Electronic versions of particular personnel records that, pursuant to statute or regulation, must be notarized, certified, signed, or witnessed may be authenticated under Rules 901 and 902 of the Federal Rules of Evidence. Converting such documents to electronic format should not affect their admissibility under hearsay rules.

Assertion of Executive Privilege Over Communications Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request

The President may lawfully assert executive privilege in response to congressional subpoenas seeking communications within the Executive Office of the President or between the Environmental Protection Agency and the EOP concerning EPA’s promulgation of a regulation revising national ambient air quality standards for ozone or EPA’s decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles.


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