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U.S. Department of Justice

Office of Legal Counsel


ALL OPINIONS
MEMORANDA AND OPINIONS BY YEAR

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Memoranda & Opinions
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Last updated 06/19/2004


WHETHER CERTAIN DIRECT RECORDING ELECTRONIC VOTING SYSTEMS COMPLY WITH THE HELP AMERICA VOTE ACT AND THE AMERICANS WITH DISABILITIES ACT
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A direct recording electronic voting system that produces a contemporaneous paper record, which is not accessible to sight-impaired voters but which allows sighted voters to confirm that their ballots accurately reflect their choices before the system officially records their votes, would be consistent with the Help America Vote Act and with Title II of the Americans with Disabilities Act, so long as the voting system provides a similar opportunity for sight-impaired voters to verify their ballots before those ballots are finally cast.

October 10, 2003


AUTHORITY OF CHIEF FINANCIAL OFFICER UNDER FY 2003 HUD APPROPRIATIONS
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Provisions of the Department of Housing and Urban Development Appropriations Act for FY 2003 did not assign all responsibility for appropriations law matters to HUD's Chief Financial Officer to the exclusion of the General Counsel.

August 12, 2003


VA'S AUTHORITY TO FILL CERTAIN PRESCRIPTIONS WRITTEN BY NON-VA PHYSICIANS
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The Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for veterans placed on VA waiting lists.

July 3, 2003


AUTHORITY OF THE DEPARTMENT OF THE INTERIOR TO PROVIDE HISTORIC PRESERVATION GRANTS TO HISTORIC RELIGIOUS PROPERTIES SUCH AS THE OLD NORTH CHURCH
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The Establishment Clause does not bar the award of historic preservation grants to the Old North Church or to other active houses of worship that qualify for such assistance, and the section of the National Historic Preservation Act authorizing the provision of historic preservation assistance to religious properties listed on the National Register of Historic Places is constitutional.

April 30, 2003


LIMITATIONS ON THE DETENTION AUTHORITY OF
THE IMMIGRATION AND NATURALIZATION SERVICE
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The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with any particular degree of dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity.

It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General's power to effect the removal within 90 days. The Attorney General can take such action, however, only when the delay in removal is related to effectuating the immigration laws and the nation’s immigration policies. Among other things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections satisfy this standard.

February 20, 2003


DEPARTMENT OF TRANSPORTATION AUTHORITY TO EXEMPT CANADIAN TRUCK DRIVERS FROM CRIMINAL LIABILITY FOR TRANSPORTING EXPLOSIVES
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The Department of Transportation possesses the authority to issue a regulation that, under section 845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section 842(i) of that title. DoT, however, has not issued such a regulation, and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.

February 6, 2003



LEGALITY OF FIXED-PRICE INTERGOVERNMENTAL AGREEMENTS FOR DETENTION SERVICES
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The Department of Justice has authority to enter Intergovernmental Agreements with state or local governments to provide for the detention of federal prisoners and detainees on a fixed-price basis and is not limited to providing compensation for costs under such agreements.

December 31, 2002


BUREAU OF PRISONS PRACTICE OF PLACING IN COMMUNITY CONFINEMENT CERTAIN OFFENDERS WHO HAVE RECEIVED SENTENCES OF IMPRISONMENT
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When an offender has received a sentence of imprisonment, the Bureau of Prisons does not have general authority, either upon the recommendation of the sentencing judge or otherwise, to place such an offender in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence.

December 13, 2002


DEPARTMENT OF TRANSPORTATION AUTHORITY TO EXEMPT CANADIAN TRUCK DRIVERS FROM CRIMINAL LIABILITY FOR TRANSPORTING EXPLOSIVES
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The Department of Transportation possesses the authority to issue a regulation that, under section 845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section 842(i) of that title. DoT, however, has not issued such a regulation, and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.

February 6, 2003


FUNDING FOR TECHNICAL ASSISTANCE FOR AGRICULTURAL CONSERVATION PROGRAMS
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Funding for technical assistance for the agricultural conservation programs listed in amended section 1241(a) of the Food Security Act of 1985 is subject to the "section 11 cap" on transfer of Commodity Credit Corporation funds. The Secretary of Agriculture may draw on the Department of Agriculture's appropriation for Conservation Operations to fund technical assistance for these programs.

January 3, 2003


BUREAU OF PRISONS PRACTICE OF PLACING IN COMMUNITY CONFINEMENT CERTAIN OFFENDERS WHO HAVE RECEIVED SENTENCES OF IMPRISONMENT
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When an offender has received a sentence of imprisonment, the Bureau of Prisons does not have general authority, either upon the recommendation of the sentencing judge or otherwise, to place such an offender in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence.

December 13, 2002


AUTHORITY OF FEMA TO PROVIDE DISASTER ASSISTANCE TO SEATTLE HEBREW ACADEMY
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The Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations permit FEMA to provide federal disaster assistance for the reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an earthquake in 2001. The Establishment Clause of the First Amendment does not pose a barrier to the Academy's receipt of such aid.

September 25, 2002


AUTHORITY OF FEDERAL JUDGES AND MAGISTRATES TO ISSUE "NO-KNOCK" WARRANTS

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Federal judges and magistrates may lawfully and constitutionally issue "no-knock" warrants where circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for such warrants under such circumstances.

Although officers need not take affirmative steps to make an independent re-verification of the circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does not entitle officers to disregard reliable information clearly negating the existence of exigent circumstances when they actually receive such information before execution of the warrant.

June 12, 2002


AUTHORITY OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD TO DELEGATE POWER
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Although the Chemical Safety and Hazard Investigation Board may not name an "Acting Chairperson," it may delegate administrative and executive authority to a single member while the position of chairperson is vacant.

April 19, 2002



ROLE OF LEGAL GUARDIANS OR PROXIES IN NATURALIZATION PROCEEDINGS
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Section 504 of the Rehabilitation Act requires the INS as a reasonable accommodation to permit a legal guardian or proxy to represent a mentally disabled applicant in naturalization proceedings.

March 13, 2002





AUTHORITY OF THE DEPUTY ATTORNEY GENERAL UNDER EXECUTIVE ORDER 12333
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The Deputy Attorney General has authority to approve searches for intelligence purposes that are conducted under section 2.5 of Executive Order 12333.

November 5, 2001


APPLICATION OF 18 U.S.C. § 208 TO TRUSTEES OF PRIVATE TRUSTS
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Although a trustee of a private trust, solely by virtue of his capacity as a trustee, should not be deemed to have a personal financial interest in the property of the trust, a trustee of a private trust may have such an interest under certain circumstances. Further, a trustee of a private trust also should be considered to be serving in the capacity of a "trustee" of an "organization" for purposes of 18 U.S.C. § 208(a).

November 2, 2001


PRESIDENT'S AUTHORITY TO REMOVE THE CHAIRMAN OF THE CONSUMER PRODUCT SAFETY COMMISSION
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The Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and the President has the constitutional authority to remove her for any reason.

Upon her removal, the Chairman will still continue to serve as a Commissioner, and, under, 15 U.S.C. § 2053(d), the Vice-Chairman of the Commission will assume the post of Chairman.

July 31, 2001


INVESTMENT OF FEDERAL TRUST FUNDS FOR CHEYENNE RIVER AND LOWER BRULE SIOUX
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Congress intended the term "interest" in Title VI of the Water Resources Development Act of 1999 to have its usual and customary meaning: the coupon rate of the debt obligation.

The universe of "available obligations" under Title VI of the Water Resources Development Act of 1999 includes obligations of government corporations and government-sponsored entities whose charter statutes provide that their obligations are lawful investments for federal trust funds.

The fiduciary duty owed pursuant to a federal trust fund is defined and limited by the terms of the statute creating the trust.

January 19, 2001


NOAA CORPS ELIGIBILITY FOR PROFESSIONAL LIABILITY INSURANCE COSTS REIMBURSEMENT
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Members of the NOAA Commissioned Corps may constitute qualified employees eligible for professional liability insurance cost reimbursement under federal statute if they otherwise satisfy the statutory definition for "law enforcement officer," "supervisor," or "management official."

January 19, 2001


"COMMUNICATIONS" UNDER 18 U.S.C. § 207
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A former high-ranking government official proposed establishing a consulting firm . as a sole proprietorship, a partnership, or a corporation . in which he would be one of a very few employees, or perhaps even the sole employee. If, as hypothesized, the consulting firm prepares a report on behalf of certain clients, which is submitted directly to his former agency by the consulting firm or, with the former official. s knowledge, by his client with the report bearing the consulting firm. s name, and it is expected by the former official that his identity as the author of the report may be commonly known throughout the industry and at his former agency, he would be making a communication prohibited by 18 U.S.C. § 207(c).

January 19, 2001


AUTHORITY TO SOLICIT GIFTS
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The express statutory authority to accept gifts, contained in section 403(b)(1) of the Office of Government Ethics Authorization Act of 1996, includes the implied authority to solicit gifts.

January 19, 2001


EFFECT OF THE ALIENAGE RESTRICTION IN THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 ON THE PROVISION OF STAFFORD ACT ASSISTANCE IN THE FEDERATED STATES OF MICRONESIA AND THE REPUBLIC OF MARSHALL ISLANDS
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Congress did not intend the alienage restriction set forth in title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to apply extraterritorially. For this reason, the provision of Stafford Act assistance on the Federated States of Micronesia and the Republic of Marshall Islands by the Federal Emergency Management Agency would not violate the PRWORA.

January 19, 2001



 AUTHORITY OF THE OFFICE OF GOVERNMENT ETHICS TO ISSUE TOUHY REGULATIONS
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OGE may not issue Touhy regulations pursuant to 5 U.S.C. § 301 because OGE is not an "executive department" within the meaning of § 301.

OGE may issue Touhy regulations, insofar as they concern the production of agency records, pursuant to 44 U.S.C. § 3102 of the Federal Records Act.

OGE may issue regulations concerning the appearance of agency employees as witnesses on official matters, pursuant to the implied authority of OGE. s organic statute, 5 U.S.C. app. § 401.

January 18, 2001


REIMBURSING TRANSITION-RELATED EXPENSES INCURRED BEFORE THE ADMINISTRATOR OF GENERAL SERVICES ASCERTAINED WHO WERE THE APPARENT SUCCESSFUL CANDIDATES FOR THE OFFICE OF PRESIDENT AND VICE PRESIDENS
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The General Services Administration can reimburse the Bush/Cheney transition for legitimate transition-related expenses, as contemplated by the Presidential Transition Act of 1963, that were incurred after the general election on November 7, 2000 but prior to December 14, 2000, when the Administrator of GSA ascertained that George W. Bush and Richard Cheney were the apparent successful candidates for the office of President and Vice President

January 17, 2001


AUTHORIZATION FOR CONTINUING HOSTILITIES IN KOSOVO
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Pub. L. No. 106-31, The emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration at sixty days under section 5(b) of The War Powers Resolution.

December 19, 2000


USE OF AGENCY RESOURCES TO SUPPORT PRESIDENTIAL TRANSITION
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We adhere to the conclusion in our December 14, 1992 Memorandum that, under the Presidential Transition Act of 1963, an executive agency or department may provide office space, secretarial services, and other support services to members of the transition team from agency appropriations without reimbursement from the transition appropriation when the provision of such space and support by the agency, rather than by the transition team itself, would minimize disruption to the agency. s operations caused by the transfer of the leadership of the agency. 

     Our conclusion in the 1992 Memorandum is not affected by the October 12, 2000 amendment to the Transition Act. Direct support services and office space for those workshops and orientations that the amendment authorizes should be provided by GSA out of the appropriation for the transition, unless their provision by a particular agency would minimize disruption of the agency. s mission or operations.

November 22, 2000


DEFINITION OF CANDIDATE UNDER 18 U.S.C. § 207(j)
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Individuals who otherwise meet the specifications and limitations of § 207(j)(7)(A) and (B) should be deemed to be communicating on behalf of a "candidate" through the point at which that "candidate" assumes the office to which he has been elected.

November 6, 2000


APPLICATION OF 18 U.S.C. § 207(d) TO CERTAIN EMPLOYEES IN THE TREASURY DEPARTMENT
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The post-employment restrictions of 18 U.S.C. § 207(d), which cover officials paid "at" the rate for level I of the Executive Schedule, do not apply to officials paid at a higher rate. Those officials are instead subject to the restrictions of 18 U.S.C. § 207(c).

November 3, 2000


 

SECTION 235A OF THE IMMIGRATION AND NATIONALITY ACT
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Section 235A of the Immigration and Nationality Act, requires the Attorney General to establish and maintain certain preinspection stations provided the foreign countries concerned have consented to the establishment of such stations on their territory and provided that certain other preconditions have been satisfied.

Section 235A does not oblige the Attorney General or any other Executive Branch official to enter into diplomatic negotiations with foreign countries in order to obtain their consent to the establishment of preinspection stations on their territory, and it does not require that preinspection stations be established before the preconditions have been satisfied. Accordingly, section 235A does not unconstitutionally infringes on the President's authority to conduct diplomatic relations.


October 23, 2000


SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY
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Under Title III of the Omnibus Crime Control and Safe Streets Act, law enforcement officials may share with the intelligence community information obtained through surveillance authorized by courts pursuant to Title III where it is done to obtain assistance in preventing, investigating, or prosecuting a crime.

Law enforcement may also share with the intelligence community information obtained through surveillance authorized by the court pursuant to Title III where the information is of overriding importance to national security or foreign relations and disclosure is necessary for the President to discharge his constitutional responsibilities over these matters.


October 17, 2000


A SITTING PRESIDENT'S AMENABILITY TO INDICTMENT AND CRIMINAL PROSECUTION
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The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

October 16, 2000


ENFORCEABILITY OF 18 U.S.C. § 1302
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Application of 18 U.S.C. § 1302 to prohibit the mailing of truthful advertising concerning lawful gambling operations (except as to state-operated lotteries in some circumstances) would violate the First Amendment. Accordingly, the Department of Justice will refrain from enforcing the statute with respect to such mailings.

September 25, 2000


APPLICABILITY OF THE PRIVACY ACT TO THE WHITE HOUSE
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The Privacy Act does not apply to the White House Office, which is also known as the Office of the President.

September 8, 2000


APPLICATION OF 18 U.S.C. § 209 TO EMPLOYEE-INVENTORS WHO
RECEIVE OUTSIDE ROYALTY PAYMENTS
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A federal government employee who obtains patent rights to an invention made in the course of federal employment ordinarily does not violate 18 U.S.C. § 209 by licensing the patent rights to a private entity and receiving royalty payments in exchange, because the payments are not "compensation for [the employee. s] services" in the government.

September 5, 2000


WHETHER A FORMER PRESIDENT MAY BE INDICTED AND TRIED FOR THE SAME OFFENSES FOR WHICH HE WAS IMPEACHED BY THE HOUSE AND ACQUITTED BY THE SENATE

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The Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.

August 18, 2000


DIVISION OF POWER AND RESPONSIBILITIES BETWEEN THE CHAIRPERSON OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD AND THE BOARD AS A WHOLE
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Under the Clean Air Act Amendments of 1990 and general principles governing the operation of boards, the day-to-day administration of Chemical Safety and Hazard Investigation Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.

     In disputes over the allocation of authority in specific instances, the Board's decision controls, as long as it is not arbitrary or unreasonable.

June 26, 2000


EPA ASSESSMENT OF PENALTIES AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND STORAGE TANK REQUIREMENTS OF THE RESOURCE CONSERVATION AND RECOVERY ACT
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The Resource Conservation and Recovery Act authorizes the Environmental Protection Agency to assess penalties against federal agencies for violations of RCA's underground storage tank provisions. EPA's underground storage tank field citation procedures do not violate RCRA or the Constitution.

June 14, 2000


APPLICABILITY OF THE FEDERAL VACANCIES REFORM ACT TO VACANCIES AT THE INTERNATIONAL MONETARY FUND AND THE WORLD BANK
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The United States Executive Director and the Alternate United States Director at the International Monetary Fund and the World Bank are not part of an Executive agency, and therefore vacancies in those offices are not covered by the Federal Vacancies Reform Act.

May 11, 2000


CONTINUATION OF FEDERAL PRISONER DETENTION EFFORTS IN THE FACE OF A USMS APPROPRIATION DEFICIENCY
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It is doubtful that the "authorized by law" exception to the Antideficiency Act would allow the United States Marshals Service to continue to provide prisoner detention-related functions during a deficiency in its FPD budget, but it is likely that the "emergency" exceptions set forth in § 1342 and § 1515 of that statute would apply, in many, if not all, circumstances.

April 5, 2000


DATE OF APPOINTMENT FOR PURPOSES OF CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
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The appointment date for appointment of an interim United States Attorney is established by the Attorney General's intent, and here the form of order used by the Attorney General expressly states her intent - that the appointment is made upon satisfaction of the conditions that the office is vacant and the designee takes the oath of office.

March 16, 2000


STARTING DATE FOR CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
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Under 28 U.S.C. § 546(c)(2), the 120-day term of an interim United States Attorney appointed by the Attorney General is calculated from the date of the appointment, rather than the date on which the vacancy occurred.

March 10, 2000


LEGAL EFFECTIVENESS OF A PRESIDENTIAL DIRECTIVE, AS COMPARED TO AN EXECUTIVE ORDER
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A presidential directive has the same substantive legal effect as an executive order. It is the substance of the presidential action that is determinative, not the form of the document conveying that action. Both an executive order and a presidential directive remain effective upon a change in administration, unless otherwise specified in the document, and both continue to be effective until subsequent presidential action is taken.

January 29, 2000


AUTHORITY OF THE ADVISORY BOARD FOR CUBA BROADCASTING TO ACT IN THE ABSENCE OF A PRESIDENTIALLY DESIGNATED CHAIRPERSON
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The Advisory Board for Cuba Broadcasting has the authority to meet and to conduct business without a presidentially designated chairperson or an acting chairperson. The Advisory Board for Cuba Broadcasting does not have the authority to elect an acting chairperson.

January 4, 2000


APPLICABILITY OF 18 U.S.C. § 205(A)(2) TO REPRESENTATION BEFORE NON-FEDERAL AGENCY
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18 U.S.C. § 205(a)(2), which bars a Federal employee from acting as an agent or attorney before any "agency . . . in connection with any covered matter in which the U.S. is a party or has a direct and substantial interest," applies only to Federal agencies and does not apply to state agencies or agencies of the District of Columbia.

January 3, 2000


PARTICIPATION BY PROCESSOR-OWNED CATCHER VESSELS IN INSHORE COOPERATIVES UNDER THE AMERICAN FISHERIES ACT OF 1998
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Section 210(b) of the American Fisheries Act of 1998 permits catcher vessels owned by shoreside processors to participate in AFA-authorized fishery cooperatives.

December 10, 1999


TRIBAL RESTRICTIONS ON SHARING OF INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
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The Indian Civil Rights Act, rather than the federal Constitution, limits the power of an Indian tribe vis-a-vis its members. In interpreting provisions of the ICRA, it is appropriate to look to precedents under analogous constitutional provisions constraining federal and state action, although particular facts about tribal structure and traditions may be relevant to the analysis.

In some factual circumstances, a tribal ordinance prohibiting members from sharing, with researchers or others outside the tribe, information on possible commercial uses of biological resources would raise concerns under the free speech provision of the ICRA. The legality of such an ordinance would depend on a number of factorsincluding how widely known the information is; whether those who hold the information have a particular relationship of trust with the tribe; the magnitude of the tribal interest underlying the tribe's effort not to disclose the information; and whether the information can be viewed as tribal property under an intellectual property regime that is otherwise consistent with applicable law.


October 12, 1999


APPOINTMENT OF A SENATE-CONFIRMED NOMINEE
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The President is not legally obligated to appoint a nominee to whom the Senate has given its advice and consent. Until the President takes the final public act necessary to complete the appointment, which in the case of a Senate-confirmed official is customarily evidenced by the President's signing the commission, the President retains full discretion not to appoint the nominee.

October 12, 1999


PROPOSED CHANGE IN EEOC REGULATIONS CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
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The Equal Employment Opportunity Commission proposal to amend its procedural regulations to permit the Commission to issue a right-to-sue notice where it has failed to make a reasonable cause determination within 180 days after the filing of a charge against a state or local governmental entity is not permissible under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.

October 7, 1999


APPLICABILITY OF EEOC PROPOSED FINAL RULE TO THE DEPARTMENT OF VETERANS AFFAIRS
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The Veterans' Benefits Act is not inconsistent with the proposed Equal Employment Opportunity Commission final rule on hearings for federal employees' EEO complaints, and therefore the Department of Veterans Affairs would be subject to the rule to the same extent as other executive branch agencies.

September 28, 1999


ASSERTION OF EXECUTIVE PRIVILEGE WITH RESPECT TO CLEMENCY DECISION
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Executive privilege may properly be asserted in response to a congressional subpoena seeking documents and testimony concerning the deliberations in connection with President's decision to offer clemency to sixteen individuals.

Executive privilege may properly be asserted in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony.


September 16, 1999


APPLICABILITY OF 18 U.S.C. § 219 TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
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Representative members of federal advisory committees - i.e., members who are chosen only to present the views of a private interest - are not "public officials" covered by 18 U.S.C. § 219.

September 15, 1999


OFFICE OF PERSONNEL MANAGEMENT PETITIONS FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT SYSTEMS PROTECTION BOARD DECISIONS
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The Director of the Office of Personnel Management is authorized to petition the Merit Systems Protection Board to reconsider a non_precedential decision of the Board if, and only if, the Director concludes that such decision has a substantial impact on a civil service law, rule, regulation, or policy directive.

September 13, 1999


RESTRICTIONS ON TRAVEL BY VOICE OF AMERICA CORRESPONDENTS
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The Secretary of State and Chiefs of Mission may restrict travel by Voice of America correspondents in foreign countries in order to protect their safety, but only under conditions ensuring, to the greatest extent possible, the independence of VOA correspondents.

September 10, 1999


INTERNAL REVENUE SERVICE REQUEST FOR DOCUMENTS IN DEFENSE DEPARTMENT POSSESSION
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The Defense Contract Audit Agency is not under a legal obligation, imposed by 26 U.S.C. § 7602(a), to comply with an Internal Revenue Service request for documents in its possession.

September 1, 1999


ELIGIBILITY OF A DUAL UNITED STATES CITIZEN FOR A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
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Section 606 of the Treasury and General Government Appropriations Act of 1999 does not bar the Department of Justice from employing, in a paid position, a United States citizen who is also a citizen of another country.

August 26, 1999


THE INAPPLICABILITY OF FEDERAL VACANCIES REFORM ACT'S REPORTING OBLIGATIONS FOR PAS OFFICERS SERVING UNDER STATUTORY HOLDOVER PROVISIONS
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There is no "vacancy" within the meaning of the Federal Vacancies Reform Act of 1998 when a presidentially appointed, Senate_confirmed officer continues to hold a position under a statutory holdover provision and therefore the holdover service is not reportable under the Act.

July 30, 1999


TESTIMONY CONCERNING THE FEDERALISM ACCOUNTABILITY ACT
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Provisions of the proposed Federalism Accountability Act that would alter the rules under which courts determine whether Congress has preempted state law by statute or authorized preemption by regulation could have far reaching and unintended consequences and should only be enacted if Congress determines that existing preemption doctrine has systematically frustrated congressional intent and that statutory rules of construction would produce better results.

Provisions of the bill that would instruct courts to resolve ambiguities in federal law in favor of preserving the authority of the states could frustrate the intentions of Congress and rulemaking agencies and should not be enacted.

July 14, 1999


AUTHORITY OF THE UNITED STATES TO ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION
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Attorney General may enter into settlements that would limit the future exercise of executive branch discretion when that discretion has been conferred upon the executive branch pursuant to statute and there exists no independent statutory limitation on the authority of the executive branch to so limit the future exercise of that discretion.

The Attorney General's power to enter into settlements that would limit the future exercise of discretion that has been conferred upon the executive branch directly by the Constitution is constrained by the very constitutional provisions that vest discretionary authority in the President and therefore necessarily preclude the President from subjecting the exercise of that discretion to the control of the other party to a settlement or to judicial enforcement.

Article III of the Constitution does not preclude the executive branch from entering into judicially enforceable discretion limiting settlements as a general matter or bar federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction. Article III limitations may arise, however, when, for example, the terms of the governmental promise are too amorphous to be susceptible to Article III federal judicial enforcement.

Although there may be sound policy reasons to reaffirm Attorney General Meese's 1986 policy regulating the use of discretion limiting settlements, the concerns that led to its adoption do not, in general, amount to legally binding limitations on the scope of the executive branch's power to settle litigation in a manner that may limit the future exercise of executive branch discretion.

June 15, 1999


TERM OF A MEMBER OF THE MISSISSIPPI RIVER COMMISSION
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The term of a member of the Mississippi River Commission is set by the statute governing his office, and the term dictated by the statute applies even though the language of his nomination, confirmation, and commission calls for a different term.

May 27, 1999


ACCESSIBILITY GUIDELINES AND FEDERAL LEASE RENEWALS
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The Architectural and Transportation Barriers Compliance Board may require, pursuant to the Architectural Barriers Act of 1968, that buildings first leased by federal agencies after 1976 be brought into compliance with current accessibility standards when the agency negotiates renewal of the lease.

May 26, 1999


USMS OBLIGATION TO TAKE STEPS TO AVOID ANTICIPATED APPROPRIATIONS DEFICIENCY
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Under the apportionment provisions of the Antideficiency Act, the United States Marshals Service has an affirmative obligation to take steps to avoid a deficiency in its Federal Prisoner Detention budget and any drastic curtailment of its prisoner detention services by reducing current expenditures and/or exploring alternative sources of funding that would not depend upon the receipt of additional funds from Congress.

May 11, 1999


WHETHER AND UNDER WHAT CIRCUMSTANCES GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS IS A NONINFRINGING "FAIR USE" UNDER SECTION 107 OF THE COPYRIGHT ACT OF 1976
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Although government reproduction of copyrighted material for governmental use would in many contexts be a noninfringing fair use under section 107 of the Copyright Act of 1976, such government reproduction of copyrighted material does not invariably qualify as a "fair use."

An agency that decides to negotiate a photocopying license should seek to limit the scope of the licensing agreement so as not to cover those photocopying practices that the agency, in good faith, concludes are not infringing.

In order to determine whether a particular government photocopying practice is a "fair use," the ultimate question to be answered is whether permitting the government to continue to engage in the practice without paying a licensing fee would stimulate productive thought and public instruction, or yield other societal benefits, without excessively diminishing the incentives for creativity.


April 30, 1999


APPLICABILITY OF TRADE SECRETS ACT TO INTRAGOVERNMENTAL EXCHANGE OF REGULATORY INFORMATION
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The disclosure to certain federal financial regulatory agencies of propriety information of the Office of Federal Housing Enterprise Oversight obtained from the finance institutions it regulates would be "authorized by law" within the meaning of the Trade Secrets Act and therefore would not violate that Act's prohibitions against unauthorized agency disclosures of trade secrets or other confidential business information.

April 5, 1999


GUIDANCE ON APPLICATION OF FEDERAL VACANCIES REFORM ACT OF 1998
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This memorandum provides guidance on the application of the Federal Vacancies Reform Act of 1998 to vacancies in Senate-confirmed offices within the executive branch.

March 22, 1999


GULF WAR VETERANS HEALTH STATUTES
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Section 1604 of the Persian Gulf War Veterans Act of 1998 is constitutionally invalid and ineffective insofar as it purports to nullify prospectively certain described legislation that might be enacted in the future.

Overlapping provisions of the Veterans Programs Enhancement Act of 1998 and the Persian Gulf War Veterans Act of 1998, although redundant and burdensome in some respects if both statutes are given effect, are not inherently conflicting or mutually exclusive, and therefore the provisions of both laws must be treated as valid and effective.

March 12, 1999


ATTORNEY'S FEES FOR LEGAL SERVICE PERFORMED PRIOR TO FEDERAL EMPLOYMENT
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18 U.S.C. § 205 prohibits a Civil Division attorney from receiving attorney's fees for work in a case against the United States performed prior to federal employment when the right to payment depends on a finding of liability and award against the United States that takes place after the attorney's entry into federal employment.

February 11, 1999


APPLICABILITY OF 18 U.S.C. § 208 TO NATIONAL GAMBLING IMPACT STUDY COMMISSION
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The National Gambling Impact Study Commission is not an "independent" agency for purposes of a criminal conflict of interest statute, 18 U.S.C. § 208.

January 26, 1999


APPLICATION OF 18 U.S.C. § 205 TO EMPLOYEES SERVING ON AN INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT
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"fbi205 (WPD) Size 12.8K

A federal employee assigned to a state or local government or other non-federal entity under the Intergovernmental Personnel Act is not prohibited by 18 U.S.C. § 205 from representing the interest of the non-federal entity before the federal government, including the employee's agency, if such representational activity is affirmatively included with the scope of the employee's assignment as determined by the federal agency head.

January 11, 1999


APPLICABILITY OF 18 U.S.C. § 1721 TO COLLECTION OF FEE FOR STAMPED CARDS
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The Postal Service may charge a fee for stamped cards in addition to the face value of the postage without violating 18 U.S.C. § 1721.

January 07, 1999


PROPOSED SETTLEMENT OF DIAMOND v. DEPARTMENT OF HEALTH & HUMAN SERVICES
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The Department of Health and Human Services may lawfully enter into settlement providing that the positions of specific employees will not be reclassified until they vacate the positions if, in light of the facts of the case and recognizing the inherent uncertainty of litigation, the agency concludes that the court might find there was a cognizable danger of recurrent sexual discrimination in the reclassifications in violation of Title VII of the Civil Rights Act of 1964.

December 4, 1998


MISCELLANEOUS RECEIPTS ACT EXCEPTION FOR VETERANS' HEALTH CARE RECOVERIES
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The Veterans Reconciliation Act of 1997 creates an exception to the Miscellaneous Receipts Act to the extent that a recovery or collection under the Federal Medical Car Recovery Act is based on medical care or services furnished under chapter 17 of title 38, United States Code, and thus allows the deposit of such a recovery or collection in the Department of Veterans Affairs Medical Care Collections Fund.


December 3, 1998


PRESIDENTIAL DETERMINATION ALLOWING FINANCIAL ASSISTANCE TO TIBET
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President Carter's 1980 determination that financial assistance to the People's Republic of China would be in the national interest satisfies the requirements of section 2(b)(2) of the Export_Import Bank Act of 1945 and thus permits the Export_Import Bank to provide assistance to the region of Tibet, its provincial government, and its residents without any presidential action in addition to the prior determination made with respect to China.

November 6, 1998


LACK OF AUTHORITY OF THE OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE TO REPRESENT PRIVATE INDUSTRY IN PROCEEDINGS BEFORE THE UNITED STATES INTERNATIONAL TRADE COMMISSION
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Size 15K

The Office of the United States Trade Representative lacks authority under the Trade Act of 1974 or its own organic statute to provide legal representation to a private domestic industry in administrative proceedings before the United States International Trade Commission.

September 24, 1998


WHETHER THE FIFTH AMENDMENT PROHIBITS DISCLOSURE OF THE RESULTS OF A COURT-ORDERED MENTAL EXAMINATION TO THE GOVERNMENT DURING THE GUILT PHASE OF A TRIAL
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The Fifth Amendment privilege against self-incrimination does not prohibit disclosure to the government, during the guilt phase of a trial, of the results of a court-ordered mental examination.

September 21, 1998


OFFICIAL SERVICE BY STATE DEPARTMENT EMPLOYEES ON THE BOARDS OF AMERICAN-SPONSORED SCHOOLS OVERSEAS
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Size 11K Official service by State Department employees on the boards of American- sponsored schools overseas is authorized by statute and does not violate 18 U.S.C. § 208.

September 11, 1998


AUTHORITY OF THE D.C. COUNCIL UNDER THE HOME RULE ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS
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The Council of the District of Columbia has the authority, under section 602(a)(6) of the Home Rule Act of 1973, to amend the Schedule of Heights of Buildings Adjacent to Public Buildings as long as any amendment is within the overall limitations set forth in the Building Height Act of 1910.

The D.C. Council's authority is not further restricted by the limitations contained in the Schedule of Heights that was in effect on December 24, 1973.

August 28, 1998


APPLICATION OF 18 U.S.C. § 208 TO SERVICE BY EXECUTIVE BRANCH EMPLOYEES ON BOARDS OF STANDARD-SETTING ORGANIZATIONS
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Under 18 U.S.C. § 208, a federal employee may serve as a member of the board of a private voluntary standards organization to the extent necessary to permit participation in his or her official capacity in the organization's standard-setting activities.


August 24, 1998


CONSTRUCTION OF STATE REPORTING REQUIREMENTS IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT
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The better interpretation of the state reporting requirements in section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act is that they apply only to those state agencies administering the particular federally funded program in question, not to all state agencies in a State that receives funds under the program.


August 18, 1998


INTERPRETATION OF PHRASE "RECOMMENDATION THAT FUNDS BE PUT TO BETTER USE" IN INSPECTOR GENERAL ACT
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Although it is a close question, the better interpretation of the Inspector General Act is that Congress did not intend to limit the phrase "recommendation that funds be put to better use" to only those audit recommendations that achieve identifiable monetary savings.


August 18, 1998


APPLICABILITY OF 18 U.S.C. § 208 TO SERVICE BY FEDERAL OFFICIALS ON THE DISTRICT OF COLUMBIA DOWNTOWN BUSINESS IMPROVEMENT DISTRICT CORPORATION BOARD OF DIRECTORS
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A federal official serving on the Board of Directors of the D.C. Downtown Business Improvement District Corporation in his or her official capacity is not a director of an outside organization within the meaning of 18 U.S.C. § 208, and therefore the official's service is not barred by § 208.

August 7, 1998


INELIGIBILITY OF NEW JERSEY TRANSIT CORPORATION BOARD MEMBER FOR APPOINTMENT TO AMTRAK BOARD OF DIRECTORS
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amtrakrev1 (WPD) Size 19.4K

A public member of the Board of Directors of the New Jersey Transit Corporation constitutes a representative of rail management under Section 411(a) of the Amtrak Reform and Accountability Act of 1997 and is therefore ineligible for appointment to the Amtrak Board of Directors.


July 30, 1998


ADMINISTRATIVE SETTLEMENT OF DISPUTES CONCERNING DETERMINATIONS OF MINERAL ROYALTIES DUE THE GOVERNMENT
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mmsopd2 (WPD) Size 40.7K

The Department of the Interior is authorized, before the completion of an administrative appeal, to settle disputed determinations of mineral royalties due the Government exceeding $100,000 made by the Minerals Management Service without obtaining the approval of the Justice Department under the Federal Claims Collection Act.

July 28, 1998


CONSTITUTIONAL CONCERNS RAISED BY THE COLLECTIONS OF INFORMATION ANTIPIRACY ACT
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The proposed Collections of Information Antipiracy Act raises difficult and novel constitutional questions concerning Congress's power to restrict the dissemination of information. Congress may not, pursuant to the Intellectual Property Clause of the Constitution, create "sweat of the brow" protection for compiled facts, at least insofar as such protection would extend to what the Supreme Court has termed the nonoriginal portion of such a compilation. Either or both the Intellectual Property Clause and the First Amendment may impose limitations on the exercise of congressional power under the Commerce Clause that would raise serious constitutional concerns regarding the constitutionality of the bill.

July 28, 2000


APPROPRIATE SOURCE FOR PAYMENT OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR CORP. AND RELATED CASES
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winstarfinal (WPD) Size 104K

The Federal Savings and Loan Insurance Corporation Resolution Fund is the appropriate source of payment for judgments against, and settlements by, the United States in United States v. Winstar Corp. and similar cases arising from the breach of certain agreements to which the Federal Savings and Loan Insurance Corporation was a party.

July 22, 1998


WAIVER OF STATUTES OF LIMITATIONS IN CONNECTION WITH CLAIMS AGAINST THE DEPARTMENT OF AGRICULTURE
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solmem.612 (WPD) Size 68K

The Supreme Court's decision in Irwin v. Department of Veterans Affairs made no alteration in the fundamental rules governing waivers of sovereign immunity in actions against the United States. Irwin and the cases following it therefore provide no support for the novel conclusion that the executive branch has the discretion to dispense with a congressional mandated statute of limitations in litigation or the compromise of claims. Unless Congress provides to the contrary, adherence to the relevant statute of limitations remains a strict and non-waivable condition on suits against the federal government.

Enactment of legislation authorizing the payment of claims barred by the statute of limitations under the Equal Credit Opportunity Act is the necessary and constitutionally appropriate means of satisfying such claims.

June 18, 1998


ACCESS TO CRIMINAL HISTORY RECORDS BY NON-GOVERNMENTAL ENTITIES PERFORMING AUTHORIZED CRIMINAL JUSTICE FUNCTIONS
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chriltr004 (WPD) Size 69.6K

Non-governmental entities performing authorized criminal justice functions under contract with government law enforcement agencies may be granted access to criminal history records maintained under the authority of 28 U.S.C. § 534, subject to effective controls to guard against unauthorized use and to insure effective oversight by the Department of Justice.

Because Department of Justice regulations implementing 28 U.S.C. § 534 do not affirmatively authorize dissemination of criminal history records to non_governmental entities under contract to assist law enforcement agencies, those regulations should be amended to provide such authorization before access is granted to those entities.

June 12, 1998


APPOINTMENT OF VICE CHAIR OF FEDERAL RESERVE BOARD TO SERVE CONCURRENTLY AS CHAIR OF THE DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY
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The Vice Chair of the Federal Reserve Board may also serve as Chair of the District of Columbia Financial Responsibility and Management Assistance Authority without violating sections 205 or 208 of title 18. Her dual service would also have to comply with the Federal Reserve Act's "entire-time" requirement.

June 1, 1998


EFFECT OF POSSE COMITATUS ACT ON PROPOSED DETAIL OF CIVILIAN EMPLOYEE TO THE NATIONAL INFRASTRUCTURE PROTECTION CENTER
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pca1fnl (WPD) Size 34.K

The proposed detail of a civilian employee of Department of Defense to the National Infrastructure Protection Center, a component of the Federal Bureau of Investigation, is permissible under the Posse Comitatus Act.

May 26, 1998


WHISTLEBLOWER PROTECTIONS FOR CLASSIFIED DISCLOSURES
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A Senate bill addressing the disclosure to Congress of classified "whistleblower" information concerning the intelligence community is unconstitutional because it would deprive the President of the opportunity to determine how, when and under what circumstances certain classified information should be disclosed to Members of Congress.

A House bill addressing the same subject is constitutional because it contains provisions that allow for the exercise of the President's constitutional authority.

May 20, 1998


CONSTITUTIONALITY OF PROPOSED LIMITATIONS ON TOBACCO INDUSTRY
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Congress has the authority under the Constitution to impose significant new regulations on tobacco companies, including (1) restrictions on advertising and marketing of tobacco products that are tailored to prevent access to advertising by minors; (2) contingent monetary exactions, to be collected from tobacco companies if tobacco use by minors fails to meet prescribed targets; and (3) requirements that companies disclose certain documents to the public and to federal regulators.

Consent by the tobacco companies to increased federal regulation, which those companies might grant in order to qualify for federally prescribed limits on liability, would permit Congress to establish additional restrictions on tobacco advertising that it could not impose directly.

May 13, 1998


LEGAL AUTHORITY OF EXECUTIVE OFFICE OF THE PRESIDENT TO REQUIRE INDEPENDENT AGENCIES TO CONDUCT BACKBROUND CHECKS OF NONCAREER SES PERSONNEL CANDIDATES
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ses004 (WPD) Size 46.4K

No office or agency within the Executive Office of the President may require independent agencies to conduct certain background checks of candidates for noncareer Senior Executive Service positions.


April 30, 1998


COVERAGE ISSUES UNDER THE INDIAN SELF-DETERMINATION ACT
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isdafin (WPD) Size 53.4

The 1990 amendment to the Indian Self-Determination and Education Asistance Act of 1975 covers only those torts for which the Federal Tort claims Act waives the sovereign immunity of the United States.

The 1990 amendment does not authorize or otherwise address representation of tribes or tribal employees who are sued in their individual capacities for constitutional torts.


April 22, 1998


CONSTRUCTION OF STATE REPORTING REQUIREMENTS IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT
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section404 (WPD) Size 30.4K

The better interpretation of the state reporting requirements in section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act is that they apply only to those state agencies administering the particular federally funded program in question, not to all state agencies in a State that receives funds under the program.


POSSIBLE BASES OF JURISDICTION FOR THE DEPARTMENT OF JUSTICE TO INVESTIGATE MATTERS RELATING TO THE ASSASSINATION OF MARTIN LUTHER KING, JR.
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The Department of Justice may conduct an investigation relating to the assassination of Martin Luther King, Jr., to investigate the commission of federal crimes for which the applicable statute of limitations has run, in order to establish the facts of the crime, independent of whether such facts may lead to a prosecution.

April 20, 1998


APPLICATION OF THE DOUBLE JEOPARDY CLAUSE TO DISGORGEMENT ORDERS UNDER THE FEDERAL TRADE COMMISSION ACT
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In a civil suit brought by the Federal Trade Commission challenging unfair trade practices, the Double Jeopardy Clause of the Fifth Amendment is not implicated by a judgment requiring restitution and ordering that, in the event restitution is impracticable, the defendant pay money to the United States Treasury.

April 9, 1998


THE VACANCIES ACT
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vacan.tes (WPD) Size 52K

The Vacancies Act is not the exclusive authority for temporarily assigning the duties of a Senate-confirmed office. Statutes vesting an agency's powers in the agency head and allowing delegation to subordinate officials also may be used to assign, on an interim basis, the duties of certain vacant Senate-confirmed offices.

March 18, 1998


APPLICABILITY OF 18 U.S.C. § 431 TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER PROPOSED
MODIFIED TRANSACTION
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Leaseop2 (WPD) Size 15K

A modified version of the proposed real estate transaction described in the February 17, 1998 opinion that gives the blind trusts no interest in any government contracts is permissible under 18 U.S.C. § 431.

March 13, 1998


APPLICABILITY OF 18 U.S.C. §§ 431-433 TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER PROPOSED TRANSACTION
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Lease6 (WPD) Size 54K

The interests of two Members of Congress under a proposed real estate transaction involving limited partnership interests in government leases would fall within the prohibition of 18 U.S.C. § 431.

February 17, 1998


REIMBURSEMENT OF EXPENSES UNDER 5 U.S.C. § 5503(a)
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Recess.wpd (WPD) Size 48K

5 U.S.C. § 5503(a) does not prohibit individuals reappointed to the Board of Directors of the Civil Liberties Public Education Fund during a congressional recess from receiving reimbursement for travel, subsistence, and other necessary expenses associated with performing their functions.

February 2, 1998


STATUTE OF LIMITATIONS AND SETTLEMENT OF EQUAL CREDIT OPPORTUNITY ACT DISCRIMINATION CLAIMS AGAINST THE DEPARTMENT OF AGRICULTURE
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usdafinl (WPD) Size 107K

The Attorney General may not waive the statute of limitations in the litigation or compromise of pending claims against theUnited States.

Absent a specific provision to the contrary, a statute of limitations on civil actions also should apply to administrative settlements of claims arising under that statute pursuant to 31 U.S.C. § 3702.

31 U.S.C. § 3702 does not authorize USDA to pay compensatory damages in an administrative settlement of an ECOA claim if ECOA's two year statute of limitations has run.

Filing an administrative claim with USDA does not toll ECOA's statute of limitations.

ECOA's statute of limitations is, in appropriate circumstances, subject to the doctrines of equitable tolling and equitable estoppel.

January 29, 1998


18 U.S.C. § 203 AND CONTINGENT INTERESTS IN EXPENSES RECOVERABLE IN LITIGATION AGAINST THE UNITED STATES
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govservice98 (WPD) Size 76K

18 U.S.C. § 203 does not prohibit a prospective government officer from maintaining upon his entry into government service a contingent interest in expenses recoverable in litigation involving the United States.

January 28, 1998


APPLICATION OF CONSUMER CREDIT REPORTING REFORM ACT OF 1996 TO PRESIDENTIAL NOMINATION AND APPOINTMENT PROCESS
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fcra_dk (WPD) Size 49.1K

Section 2403(b)(3) of the Consumer Credit Reporting Reform Act of 1996, which requires persons "using a consumer report for employment purposes" to notify the consumer prior to taking any "adverse action" based on the report, does not apply to the process used by the President in considering individuals for nomination and appointment.

December 11, 1997


REAPPOINTMENT OF A RETIRED JUDGE TO THE COURT OF FEDERAL CLAIMS
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wilson.6 (WPD) Size 16K

The President may nominate and, subject to the advice and consent of the Senate, appoint to the U.S. Court of Federal Claims an individual who has previously retired from that Court and who is receiving a retirement annuity as a senior judge. Upon assumption of active judicial service, the judge must forfeit the retirement annuity for the duration of the service.

December 3, 1997


APPLICABILITY OF 18 U.S.C. § 209 TO ACCEPTANCE BY FBI EMPLOYEES OF BENEFITS UNDER THE "MAKE A DREAM COME TRUE" PROGRAM
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209fbi (WPD) Size 16K

The criminal prohibition on supplementation of salary, 18 U.S.C. § 209, does not prohibit Federal Bureau of Investigation employees from receiving benefits under the Society of Former Special Agents of the FBI's "Make a Dream Come True" Program

October 28, 1997


FUNDS AVAILABLE FOR PAYMENT OF NATURAL RESOURCE DAMAGES UNDER THE OIL POLLUTION ACT OF 1990
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opaop (WPD) Size 92K

The President, acting through the Department of Transportation, is authorized to use the Oil Spill Liability Trust Fund to pay the claims of Natural Resource Trustees for uncompensated natural resource damages in accordance with section 1013 of the Oil Pollution Act of 1990, without the need for further enactment of appropriations.

September 25, 1997


AUTHORITY TO INVESTIGATE COMPLAINTS BY EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION ALLEGING REPRISAL FOR WHISTLEBLOWING
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whistop (WPD) Size 76K

The Office of Special Counsel lacks authority to investigate complaints brought by Federal Aviation Administration employees alleging reprisals against them in response to whistleblowing activity.

September 23, 1997


APPLICATION OF EMOLUMENTS CLAUSE TO REPRESENTATIVE MEMBERS OF ADVISORY COMMITTEES
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emols.ac (WPD) Size 40K

The Emoluments Clause of the Constitution does not apply to . representative. members of advisory committees, that is, members who are chosen to present the views of private organizations and interests.

September 2, 1997


DISCLOSURE OF GRAND JURY MATERIAL TO THE INTELLIGENCE COMMUNITY
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Grand Jury material subject to the requirements of Rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed to agencies in the Intelligence Community insofar as necessary to assist government attorneys in performing their duties to enforce federal criminal law, but may not be used by the recipient agencies for other purposes.

In circumstances where there is a compelling necessity for grand jury material to be made available to the President in furtherance of his constitutional responsibilities over foreign affairs and national defense and where the President has authorized the provision of such material to the Intelligence Community, we believe that a court should and would authorize such disclosure outside the provisions of Rule 6(ee), on the basis of Article II of the Constitution and separation of powers principles. Indeed, in such compelling circumstances, a constitutionally necessitated disclosure could properly be made b attorneys for the Government even without prior court approval.

Section 104(a) of the National Security Act, as implemented by Executive Order N. 12333, does not provide sound authority for Justice Department disclosure of grand jury material related to the national security to the Director of Central Intelligence outside the provisions of Rule 6(e).

August 14, 1997


USE OF GENERAL AGENCY APPROPRIATIONS TO PURCHASE EMPLOYEE BUSINESS CARDS
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Nothing in the Omnibus Consolidated Appropriations Act of 1997 expressly provides for, or prohibits, the expenditure of appropriations of the General Services Administration for the purchase of employee business cards.

In the absence of a contrary provision or limitation in its appropriations act or other applicable legislation, GSA may lawfully obligate a general or lump-sum appropriation for the purchase of business cards for suitable mission-related use by GSA employees.

Depending upon the purpose for which they are to be used, GSA's purchases of business cards for its employees may be chargeable either to its limited appropriation for "reception and recreation expenses" or to its general appropriation.

August 11, 1997


APPLICABILITY OF SECTION 514 OF THE 1997 EDUCATION APPROPRIATIONS ACT TO POST-SECONDARY STUDENT AID PROGRAMS
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antirotcmem (WPD) Size 68.9K

Section 514 of the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act of 1997, which bars the provision of appropriated funds, by contract or grant, to any institution of higher education that denies campus access to military recruiters or Reserve Officer Training Corps representatives, applies to so-called "campus-based" student aid programs, which involve grants to educational entities, but does not apply to direct aid programs, which involve grants to students rather than to educational entities.

August 6, 1997


APPLICABILITY OF 3 U.S.C. § 112 TO DETAILEES SUPPORTING THE PRESIDENT'S INITIATIVE ON RACE
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raceout2mem (WPD) Size 23K

3 U.S.C. § 112 does not apply to the details of employees to support the President's Initiative on Race.

August 1, 1997


AUTHORITY OF MILITARY EXCHANGES TO LEASE GENERAL PURPOSE OFFICE SPACE
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naf1 (WPD) Size 83K

The Navy Exchange Service Command, a non-appropriated fund instrumentality ("NAFI"), and similar military exchange units constitute integral components of the Department of Defense and their leasing authority, like that of other DoD components, is subject to the provisions of Reorganization Plan No. 18 of 1950, notwithstanding their status as NAFIs. Accordingly, they are not authorized to lease general purpose urban office space unless such authority is delegated to them by the General Services Administration.

August 1, 1997


REMOVAL OF HOLDOVER OFFICIALS SERVING ON THE FEDERAL HOUSING BOARD AND THE RAILROAD RETIREMENT BOARD
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The President may remove, without cause, members of the Federal Housing Board and the Railroad Retirement Board who are serving in holdover capacities and do not enjoy express tenure protection by statute.

August 1, 1997



NOMINATION OF SITTING MEMBER OF CONGRESS TO BE AMBASSADOR TO VIETNAM
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peterfinal (WPD)

Size 69.4K The Ineligibility Clause does not bar the nomination of Representative Pete Peterson to be Ambassador to the Socialist Republic of Congress, provided that the President does not make the determination to create the office of ambassador to that government until after the expiration of the term for which Representative Peterson was elected.

July 26, 1996



ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AGAINST FEDERAL AGENCIES UNDER THE CLEAN AIR ACT
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cleanair.op (WPD) Size 72K

The Clean Air Act authorizes the Environmental Protection Agency administratively to assess civil penalties against federal agencies for violations of the Act or its implementing regulations. Separation of powers concerns do not bar EPA's exercise of this authority because it can be exercised consistent with the Constitution.

July 16, 1997


FUNDING OF STATE DEPARTMENT SETTLEMENTS OF FOREIGN TORT CLAIMS
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state3 (WPD) Size 21.9K

Because 22 U.S.C. § 2669(f) expressly authorizes the Secretary of State to pay settlements of foreign tort claims from funds appropriated for the activities included in the State Department Basic Authorities Act or from funds "otherwise available," the payment of such settlements is "otherwise provided for" within the meaning of 31 U.S.C. § 1304(a), and therefore the federal Judgment Fund is not available for the payment of such settlements.

June 18, 1997


APPLICABILITY OF 18 U.S.C. § 208 TO THE FEDERAL COMMUNICATIONS COMMISSION'S REPRESENTATIVE ON THE BOARD OF
DIRECTORS OF THE TELECOMMUNICATIONS DEVELOPMENT FUND
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Because the Telecommunications Development Fund is a non-profit entity that is owned, funded, and controlled by the federal government, it is not an
"organization" within the meaning of 18 U.S.C. § 208. Therefore, the restrictions in § 208 do not apply to the service of the Federal Communications
Commission's General Counsel on the Board of Directors of the Fund.

June 12, 1997


NATIONAL ARCHIVES ACCESS TO TAXPAYER INFORMATION
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Neither the Secretary of the Treasury nor the President can permit the National Archives and Records Administration to inspect tax returns or return information, pursuant to 44 U.S.C. § 2906 (a)(2), for purposes of appraising the records.

May 28, 1997


SERVICE BY FEDERAL OFFICIALS ON THE BOARD OF DIRECTORS OF THE BANK FOR INTERNATIONAL SETTLEMENTS
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18 U.S.C. § 208(a) does not prohibit the Chairman of the Federal Reserve Board and the President of the Federal Reserve Bank of New York from serving in their official capacities on the Board of Directors of the Bank for International Settlements..

May 6, 1997


IMMUNITY OF SMITHSONIAN INSTITUTION FROM STATE INSURANCE LAWS
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For purposes of the federal government immunity arising from the Supremacy Clause of the Constitution, the Smithsonian Institution is treated as an instrumentality of the United States that is imbedded in the structure of the federal government. The Smithsonian Institution is constitutionally immune from state insurance laws and state licensing requirements that would otherwise apply to its issuance of gift annuities.

April 25, 1997


THE APPLICABILITY OF EXECUTIVE ORDER NO. 12976 TO THE FDIC
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Neither the FDIC's broad discretion to determine the compensation of its employees nor its status as an independent agency exempts the FDIC from the requirements of Executive Order No. 12976.

April 22, 1997


PERSONAL SATISFACTION OF IMMIGRATION AND NATIONALITY ACT OATH REQUIREMENT
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Section 504 of the Rehabilitation Act does not require accommodation for persons unable to form the mental intent necessary to take the naturalization oath of allegiance prescribed by section 337 of the Immigration and Nationality Act.

The oath requirement of section 337 may not be fulfilled by a guardian or other legal proxy.

April 18, 1997


CALCULATING RATE OF PAY OF DEPARTMENT OF JUSTICE EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION UNDER INDEPENDENT COUNSEL ACT
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The term "rate of pay" in the section of the Independent Counsel Act that indicates which Department of Justice employees are "covered persons" does not include "locality-based comparability payments" under 5 U.S.C. § 5304.

April 2, 1997


QUALIFICATION REQUIREMENT FOR ALIENS UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996
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The phrase "40 qualifying quarters of coverage" in title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 can fairly be interpreted as incorporating the methodology under section 213 of the Social Security Act for calculating quarters of coverage, but not also the strict definitions of wages, employment, and self-employment income under other sections of the Social Security Act.

March 27, 1997


PREEMPTIVE EFFECT OF THE BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT
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The Bill Emerson Good Samaritan Food Donation Act ("Act") preempts state "good samaritan" statutes that provide less protection than the Act from civil and criminal liability arising from food donated in good faith for distribution to the needy.

March 10, 1997


REVOCATION OF CITIZENSHIP
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The Immigration and Naturalization Service has authority to institute either administrative or judicial proceedings to denaturalize citizens whose criminal convictions disqualified them from citizenship as a matter of law. Whether the proceedings are administrative or judicial, the INS must establish the allegations in its complaint by clear, unequivocal, and convincing evidence.

March 3, 1997


AUTHORITY OF THE ATTORNEY GENERAL TO GRANT DISCRETIONARY RELIEF FROM DEPORTATION UNDER SECTION 212(C)
OF THE IMMIGRATION AND NATIONALITY ACT AS AMENDED BY THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT
OF 1996
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The amendment of section 212(c) of the Immigration and Nationality Act by section 440(d) of the Antiterrorism and Effective Death Penalty Act of
1996 deprived the Attorney General of the authority to grant discretionary relief from deportation for aliens who committed certain crimes. Section
440(d) applies to section 212(c) applications for discretionary relief pending on the effective date of AEDPA.

February 21, 1997


WAIVER OF OATH OF ALLEGIANCE FOR CANDIDATES FOR NATURALIZATION
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The required oath of allegiance as a condition of naturalization under section 337 of the Immigration and Nationality Act, 8 U.S.C. § 1448(a), cannot be waived.

February 5, 1997


DELEGATION OF THE PRESIDENT'S POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH LEADERSHIP COUNCIL
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Draft amendments to 10 U.S.C. § 7902 empowering the President to delegate to the head of a department his authority to appoint certain members of the National Ocean Research Leadership Council would not violate the Constitution's Appointments Clause.

January 29, 1997


PROPOSED AGENCY INTERPRETATION OF "FEDERAL MEANS-TESTED PUBLIC BENEFITS" UNDER PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 LEADERSHIP COUNCIL
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The interpretation of the phrase "federal means-tested public benefit" in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 proffered by the Departments of Health and Human Services and Housing and Urban Development - that it applies only to mandatory (and not discretionary) spending programs - constitutes a permissible and legally binding construction of the statute.

January 14, 1997


BUREAU OF PRISONS DISCLOSURE OF RECORDED INMATE TELEPHONE CONVERSATIONS
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The policy of the Criminal Division requiring outside law enforcement officials to obtain some form of legal process authorizing access to contents of inmate telephone conversations is not mandated by the Constitution or Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

The practice of profiling specific groups of inmates for monitoring raises concerns when it requires or causes the Bureau of Prisons to alter its established monitoring procedures for purposes unrelated to prison security or administration.

Inmates have a First Amendment right to some minimum level of telephone access, subject to reasonable restrictions related to prison security and administration. Under certain circumstances they also may have a Sixth Amendment right to make telephone calls to their attorneys.

January 14, 1997


APPLICATION OF THE INELIGIBILITY CLAUSE
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The Ineligibility Clause of the Constitution would not bar the appointment of Representative Bill Richardson to serve as United States Ambassador to the United Nations or of Senator William Cohen to serve as Secretary of Defense.

December 31, 1996


ACCESS TO CLASSIFIED INFORMATION
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This memorandum provides an opinion on various legal questions posed by a panel appointed by the Director of Central Intelligence to make a recommendation on whether an official at the Department of State, Richard Nuccio, should be granted access to Sensitive Compartmented Information.

November 26, 1996


VALIDITY OF CONGRESSIONAL-EXECUTIVE AGREEMENTS THAT SUBSTANTIALLY MODIFY THE UNITED STATES' OBLIGATIONS UNDER AN EXISTING TREATY
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It lies within Congress' power to authorize the President substantially to modify the United States' domestic and international legal obligations under a prior treaty, including an arms control treaty, by making an executive agreement with our treaty partners, without Senate advice and consent.

November 25, 1996


AUTHORITY TO EXEMPT PROGRAMS UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996
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The Attorney General may not exempt California's prenatal care program under § 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 because eligibility for, and the recipient's share of the cost of benefits provided by, that program are conditioned on the recipient's income.

November 25, 1996


MEMORANDUM FOR DAVID A. MARTIN GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICE
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Re: Rights of Aliens Found in U.S. Internal Waters. This responds to your request for our opinion on several additional questions related to the interdiction of undocumented aliens in vessels before they have come ashore in the United States. (1) Your request was submitted before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (. Reform Act. ), Pub. L. 104-208, Division C, 110 Stat. 3009 (1996), which substantially amended the Immigration and Naturalization Act, ch. 477, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101-1503) (. INA. ), and thereby altered the premises of your questions in significant respects.

November 21, 1996


SERVICE ON THE BOARD OF DIRECTORS OF NON-FEDERAL ENTITIES BY FEDERAL BUREAU OF INVESTIGATION PERSONNEL IN THEIR OFFICIAL CAPACITIES
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Section 208 of title 18 prohibits a government employee from serving on the board of directors of an outside organization in his or her official capacity, unless the service is authorized by statute or the employee obtains either a release of fiduciary obligations by the organization or a waiver of the requirements of section 208.

November 19, 1996


LEGAL EFFECTIVENESS OF CONGRESSIONAL SUBPOENAS ISSUED AFTER AN ADJOURNMENT SINE DIE OF CONGRESS
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A congressional subpoena issued after an adjournment sine die of Congress lacks any legal force and effect and does not impose any legal obligation to comply with the subpoena.

November 12, 1996


UN DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS GROUPS
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The Constitution would not bar the federal government from establishing the kind of government-to-government relationship it presently maintains with federally recognized Indian tribes with other appropriately constituted indigenous communities within the jurisdiction of the United States.

November 1, 1996


ELIGIBILITY OF A NONCITIZEN DUAL NATIONAL FOR A PAID POSITION WITHIN THE DEPARTMENT OF JUSTICE
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The Department of Justice must determine the . dominant, effective. nationality of a noncitizen with dual nationality to determine that person's eligibility for a paid position in the Department under section 606 of the Treasury, Postal Service, and General Government Appropriations Act, 1997.

October 11, 1996


DEPARTMENT OF JUSTICE PARTICIPATION ON THE INTERNAL REVENUE SERVICE UNDERCOVER REVIEW COMMITTEE
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Disclosure of tax return information to a Department of Justice attorney serving on the Undercover Review Committee of the Internal Revenue Service is permissible under § 6103 of title 26 of the United States Code as a limited referral for legal advice.

October 8, 1996


THE CONSTITUTIONALITY OF COOPERATIVE INTERNATIONAL LAW ENFORCEMENT ACTIVITIES UNDER THE EMOLUMENTS CLAUSE
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The Emoluments Clause of the Constitution does not bar a proposed cooperative maritime counter-narcotics operation because the foreign naval personnel assisting U.S. law enforcement personnel would not hold an . Office of Profit or Trust. under the United States.

October 7, 1996


ASSERTION OF EXECUTIVE PRIVILEGE FOR MEMORANDUM TO THE PRESIDENT CONCERNING EFFORTS TO COMBAT DRUG TRAFFICKING
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Executive privilege may properly be asserted with respect to a memorandum to the President from the Director of the Federal Bureau of Investigation and the Administrator of the Drug Enforcement Administration containing confidential advice and recommendations regarding efforts to combat drug trafficking. The memorandum was subpoenaed by the Subcommittee on National Security, International Affairs and Criminal Justice of the Committee on Government Reform and Oversight of the House of Representatives.

September 30, 1996


SUBMISSION OF AVIATION INSURANCE PROGRAM CLAIMS TO BINDING ARBITRATION
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In insurance policies issued to air carriers pursuant to authority arising under chapter 443 of title 49, the Secretary of Transportation may include . 50-50 clauses,. which require that disputes between insurers over coverage liability be submitted to binding arbitration unless the insurers are able to negotiate a settlement in advance, if the use of such clauses is an accepted practice in the aviation insurance business.

49 U.S.C. § 44309 does not preclude the use of binding arbitration to resolve disputes regarding the liability of the United States for losses insured under chapter 443.

50-50 clauses included in insurance policies issued under chapter 443 may include a provision for arbitration under state or foreign law if it is a common practice of the commercial insurance business to resolve liability disputes by reference to the decisional rules of a non-federal sovereign.


September 27, 1996


ASSERTION OF EXECUTIVE PRIVILEGE FOR DOCUMENTS CONCERNING CONDUCT OF FOREIGN AFFAIRS WITH RESPECT TO HAITI
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Executive privilege may properly be asserted with respect to certain documents subpoenaed by the Committee on International Relations of the House of Representatives that concern the Administration's conduct of foreign affairs with respect to Haiti.

September 20, 1996


PERMISSIBLE ACCOMMODATION OF SACRED SITES
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The Establishment Clause of the First Amendment does not bar either an Executive Order that requires the accommodation of ceremonial use of sites on federal land that are sacred to federally recognized Indian tribes or a National Park Service regulation, designed to implement that Order, that prohibits the issuance of commercial climbing licenses at one such site during a period of religious significance.

September 18, 1996


18 U.S.C. § 207 AND THE GOVERNMENT OF GUAM
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18 U.S.C. § 207(a)(1) prohibits a former Department of the Navy employee from representing the Government of Guam before the Federal Maritime Commission in a litigation in which he participated personally and substantially while employed by the Navy.

September 12, 1996


APPLICABILITY TO EXECUTIVE PRIVILEGE TO DELIBERATIONS REGARDING ASSERTION OF PRIVILEGE
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Documents reflecting and constituting deliberative communications within the White House Counsel's Office and between that Office and the Department of Justice relating to advice and recommendations to the President on the assertion of executive privilege are themselves a proper subject of a claim of executive privilege.

September 11, 1996


FOURTH AMENDMENT ISSUES RAISED BY CHEMICAL WEAPONS INSPECTION REGIME
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The inspection regime to be created by the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed Chemical Weapons Implementation Act, under which inspections of facilities that produce certain chemicals would occur, absent exigent circumstances, only after the United States Government obtained the consent of the owner or operator of the facility, an administrative warrant, or a criminal search warrant, is consistent with the Fourth Amendment to the Constitution.

September 10, 1996


TRANSMISSION BY A WIRELESS CARRIER OF INFORMATION REGARDING A CELLULAR PHONE USER'S PHYSICAL LOCATION TO PUBLIC SAFETY ORGANIZATIONS
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Neither 47 U.S.C. § 1002(a) nor the Fourth Amendment of the Constitution prohibits a wireless carrier's transmission to local public safety organizations of information regarding the physical location of a caller who uses a cellular telephone to dial the 911 emergency line.

Although 18 U.S.C. § 2703 would apparently apply to the carrier's transmission of such location information to public safety organizations, the caller, by dialing 911, has impliedly consented to such disclosure, thus permitting the federal government to require the carrier to disclose such information without a warrant or court order.


September 10, 1996


IMMUNITY OF THE COUNCIL TO THE PRESIDENT FROM COMPELLED CONGRESSIONAL TESTIMONY
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Executive privilege is assertable in response to a congressional subpoena seeking the testimony of the Counsel to the President because the Counsel serves as one of the President's immediate advisers and is therefore immune from compelled congressional testimony.

September 3, 1996


CONTRACTOR ACCESS TO INFORMATION FROM INTERSTATE IDENTIFICATION INDEX
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The Office of Personnel Management and other agencies have authority to disclose criminal history records information to private contractors performing background investigations of government employees or prospective employees.

OPM and other agencies also have authority to permit those contractors to have controlled on-line access to criminal history records of individuals subject to background investigations through the Interstate Identification Index system.


August 15, 1996


NOMINATION OF SITTING MEMBER OF CONGRESS TO BE AMBASSADOR TO VIETNAM
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The Ineligibility Clause does not bar the nomination of Representative Pete Peterson to be Ambassador of the Socialist Republic of Vietnam, provided that the President does not make the determination to create the office of ambassador to that government until after the expiration of the term for which Representative Peterson was elected.

July 26, 1996


GOVERNMENT PRINTING OFFICE INVOLVEMENT IN EXECUTIVE BRANCH PRINTING
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The Office of Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated May 31, 1996, regarding Government Printing Office involvement in executive branch printing.

July 23, 1996


CONSTITUTIONALITY OF STATUTE GOVERNING APPOINTMENT OF UNITED STATES TRADE REPRESENTATIVE
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19 U.S.C. § 2171(b)(3), which prohibits the appointment as United States Trade Representative of any person who has "represented, aided, or advised a foreign entity" in a trade negotiation or dispute with the United States, is an unconstitutional intrusion on the President's appointment power and thus has no legal effect.

July 1, 1996


PRESIDENTIAL CERTIFICATION REGARDING THE PROVISION OF DOCUMENTS TO THE HOUSE OF REPRESENTATIVES UNDER THE MEXICAN DEBT DISCLOSURE ACT OF 1995
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The Mexican Debt Disclosure Act of 1995 requires that, before certain assistance is extended to Mexico, the President must certify that he has provided the House of Representatives with the documents described in House Resolution 80. The President submitted a certification that indicated that the executive branch had not provided the House documents as to which it had informed the House that it would be inconsistent with the public interest to provide the documents to the House. The Act is best interpreted as incorporating an exception for those documents as to which disclosure would not be in the public interest. Therefore, the President's certification was a legally sufficient formulation of the certification required by the Act.


June 28, 1996


CONSTITUTIONALITY OF LEGISLATIVE PROVISION REGARDING ABM TREATY
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There are serious doubts as to the constitutionality of a provision of a bill stating that the United States shall not be bound by any international agreement entered into by the President that would substantively modify the Antiballistic Missile Treaty with the Soviet Union, including any agreement that would add other countries as signatories or convert that bilateral treaty into a multilateral treaty, unless the agreement is entered pursuant to the President's treaty making power. The provision intrudes on the Executive's exclusive constitutional powers to interpret and execute treaties and to recognize foreign States.

June 26, 1996


FBI AUTHORITY TO INVESTIGATE VIOLATIONS OF SUBTITLE E OF TITLE 26 OR 18 U.S.C. SECTIONS 921-930
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The Federal Bureau of Investigation has authority to participate in investigations of violations of Subtitle E of Title 26 and 18 U.S.C. §§ 921-930 but may not supplant the primacy of the Department of the Treasury over investigations of such violations, unless the FBI has reason to believe that the investigation concerns a crime of terrorism over which a statute or Presidential Decision Directive 39 has given the FBI primary responsibility.

June 21, 1996


SEVERABILITY AND DURATION OF APPROPRIATIONS RIDER CONCERNING FROZEN POULTRY REGULATIONS
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A provision of the Department of Agriculture appropriations legislation for Fiscal Year 1996, providing that a regulation otherwise rendered inoperative could be put into effect if a revised version of the regulation submitted by the Secretary of Agriculture was received and approved by two committees of Congress, violates the constitutional separation of powers by purporting to provide for the legislative enactment of a regulation without bicameral passage and presentment, as required by Article I of the Constitution.

This unconstitutional provision is severable from the remainder of the section and statute in which it is contained, so that the section's prohibition against the use of appropriated funds to implement the subject regulation, and its provision that the regulation may not take effect absent authorizing legislation, are both constitutionally enforceable.

All provisions of the section, including its prohibition against the regulation taking effect absent future authorizing legislation, are limited in duration to the 1996 Fiscal Year.


June 4, 1996


INVOLVEMENT OF THE GOVERNMENT PRINTING OFFICE IN EXECUTIVE BRANCH PRINTING AND DUPLICATING
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Section 207(a) of the Legislative Branch Appropriations Act, 1993, as amended, which requires all executive branch printing to be procured by or through the Government Printing Office, vests executive functions in an entity subject to congressional control and is therefore unconstitutional under the doctrine of separation of powers.

Agency contracting officers who act consistently with this opinion, and in derogation of the contrary view of the Comptroller General, would face little or no risk of civil, criminal, or administrative liability.


May 31, 1996


ASSERTION OF EXECUTIVE PRIVILEGE REGARDING WHITE HOUSE COUNSEL'S OFFICE DOCUMENTS
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Executive privilege may properly be asserted with respect to certain White House Counsel's Office documents that have been subpoenaed by the Committee on Government Reform and Oversight of the House of Representatives in connection with the Committee's investigation of the White House Travel Office matter.

May 23, 1996


RELOCATION DEADLINE PROVISION CONTAINED IN THE 1996 OMNIBUS CONSOLIDATED RESCISSIONS AND APPROPRIATIONS ACT
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Requirement in the Appropriations Act that the United States Information Agency relocate the Office of Cuba Broadcasting to south Florida by a date almost a month before the Act was signed into law constitutes a technical or typographical error and USIA is entitled to obligate the funds appropriated in the provision, even though it is unable to turn back the clock and comply with the provision's literal deadline.

May 21, 1996


USE OF FEDERAL EMPLOYEES FOR OLYMPIC SECURITY
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Where the teams and delegations visiting the United States for the Olympic Games in Atlanta have been designated . official guests. of the United States by the Secretary of State pursuant to §§ 112, 1116 and 1201 of the Criminal Code, those provisions authorize federal agencies to provide their employees to assist in security operations at the Atlanta Olympics upon request of the Attorney General.

May 17, 1996


MEMORANDUM FOR CONRAD HARPER LEGAL ADVISER DEPARTMENT OF STATE
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RE: Section 609 of the FY 1996 Omnibus Appropriations Act

May 15, 1996

PLACING OF UNITED STATES ARMED FORCES UNDER UNITED NATIONS OPERATIONAL OR TACTICAL CONTROL
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Proposed funding restriction generally prohibiting the President from placing United States Armed Forces under the operational or tactical control of the United Nations in U.N. peacekeeping operations would unconstitutionally constrain the President's exercise of his authority as Commander-in-Chief and unconstitutionally undermine the President's constitutional authority with respect to the conduct of diplomacy. Granting the President the authority to waive the prohibition if he provides a certification and report to Congress would not remove the funding restriction's constitutional defect, because Congress cannot burden or infringe the President's exercise of a core constitutional power by attaching conditions precedent to the exercise of that power.

May 8, 1996


PROTECTIVE ASSERTION OF EXECUTIVE PRIVILEGE REGARDING WHITE HOUSE COUNSEL'S OFFICE DOCUMENTS
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Executive privilege may properly be asserted with respect to the entire set of White House Counsel's Office documents currently being withheld from the Committee on Government Reform and Oversight of the House of Representatives, pending a final Presidential decision on the matter. This would be a protective assertion of executive privilege designed to ensure the President's ability to make a final decision, after consultation with the Attorney General, as to which specific documents are deserving of a conclusive claim of executive privilege.

May 8, 1996


I. THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN THE PRESIDENT AND CONGRESS
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This memorandum provides an overview of the constitutional issues that periodically arise concerning the relationship between the executive and legislative branches of the federal government. Although that relationship is shaped in part by the policy and political concerns of the President and Congress of the day, the political interaction between the President and Congress takes place within an enduring constitutional framework that confers powers and responsibilities on both elected branches.

In this memorandum we discuss the general principles underlying separation of powers analysis, and we address certain specific questions that have arisen in the past. Any set of examples is necessarily illustrative rather than exhaustive, however, and the Office of Legal Counsel is always available to assist in reviewing legislation or other congressional action for potential separation of powers issues.*


May 7, 1996


THE ADVISORY COMMITTEE ON INTERNATIONAL ECONOMIC POLICY
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The Advisory Committee on International Economic Policy is not subject to the Emoluments Clause.

April 17, 1996


ELIGIBILITY OF CITIZENS OF FREELY ASSOCIATED STATES FOR HUD FINANCIAL ASSISTANCE
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The Secretary of Housing and Urban Development may not make financial assistance, including assistance under section 8 of the United States Housing Act of 1937, available for the benefit of citizens of the Freely Associated States (Federated States of Micronesia, Marshall Islands, Republic of Palau) who have entered the Territory of Guam and the Commonwealth of the Northern Mariana Islands as non-immigrants pursuant to section 141 of the Compact of Free Association.

March 7, 1996


LEGAL AUTHORITY TO APPROVE CHANGES IN USE OF PROPERTY UNDER SECTION 414 OF THE HOUSING AND URBAN DEVELOPMENT ACT OF 1969
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The proposed sale of property at its fair market value in order to raise funds to build low and moderate income housing on different property constitutes a change in the use of property under section 414 of the Housing and Urban Development Act of 1969 and the terms of the deed of the 1974 sale of the property.

The Department of Housing and Urban Development and the General Services Administration could approve the proposed sale of property to a public body without violating section 414.

March 5, 1996


MEMORANDUM FOR ERIC S. BENDERSON ASSOCIATE GENERAL COUNSEL U.S. SMALL BUSINESS ADMINISTRATION
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Re: Constitutionality of 13 C.F.R. § 124.103 Establishing Citizenship Requirement for Participation in 8(a) Program.

March 4, 1996


LEGALITY OF GOVERNMENT HONORARIA BAN FOLLOWING U.S. v. NATIONAL TREASURY EMPLOYEES UNION
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No portion of § 501(b) of the Ethics in Government Act of 1978, which imposes an honoraria ban on all government employees, survives the Supreme Court's decision in United States v. National Treasury Employees Union.

February 26, 1996


BRADY ACT IMPLEMENTATION ISSUES
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The Attorney General may impose an expiration date on the validity of a check, conducted pursuant to the Brady Act by the national instant criminal background check system ("NICS"), that authorizes the transfer of a firearm Information from NICS may be disclosed to law enforcement agencies to further their criminal investigations, but disclosures may not be made for the purpose of establishing firearms registries and non_consensual disclosures may not be made for employment and licensing purposes. The Privacy Act places no restrictions on the Attorney General's express authority under the Brady Act to request information from federal agencies identifying individuals who fall within the categories of persons prohibited from possessing firearms.

February 13, 1996


TRANSACTIONS BETWEEN THE FEDERAL FINANCING BANK AND THE DEPARTMENT OF THE TREASURY
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This opinion reviews a possible Federal Financing Bank sale of loan assets to the Civil Service Retirement and Disability Fund and other possible related transactions between the FFB and the Department of the Treasury, and concludes that the contemplated transactions would be permissable under existing law.

February 13, 1996


ALTERNATIVES FOR THE IMPOSITION OF CONDITION ON THE CERTIFICATION OF DRUG TRANSIT AND PRODUCING COUNTRIES
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The President may impose certain conditions upon a drug producing or transit country seeking certification under section 490(b) of the Foreign Assistance Act of 1961. If he chooses to certify a country under section 490(b)(1)(B), he can withhold funds from the country to encourage compliance with a set of specified conditions. Alternatively, the President can determine not to certify a country in his annual certification report but inform the country that it might be recertified outside the annual cycle if it meets certain conditions. The first alternative offers greater flexibility to the President as, under the latter approach, the President is constrained in the exercise of his discretion by specific statutory requirements and his determination is subject to congressional review.

February 12, 1996


AUTHORITY OF THE PRESIDENT TO RESTRICT MUNITIONS IMPORTS UNDER THE ARMS EXPORT CONTROL ACT
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Restricting the import of certain classes of Russian firearms and ammunition that are deemed an unacceptable risk to public safety is a legitimate use of the President's authority under the Arms Export Control Act to restrict the import of munitions in furtherance of United States foreign policy.

February 9, 1996


ASSISTANCE BY STATE AND LOCAL POLICE IN APPREHENDING ILLEGAL ALIENS
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Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens for violating the criminal provisions of the Immigration and Naturalization Act.

State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws.

State and local police may detain aliens reasonably suspected of a criminal violation of the immigration laws for periods of as long as 45 to 60 minutes when detentions of that length are necessary to allow for the arrival of Border Patrol agents who are needed for the informed federal disposition of the suspected violations.

February 5, 1996


IMMIGRATION EMERGENCY FUND
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The $20 million in the Immigration Emergency Fund for the reimbursement of states and localities for certain immigration-related assistance is available on an annual basis.

January 26, 1996


WHETHER THE DISTRICT OF COLUMBIA'S CLEAN AIR COMPLIANCE FEE MAY BE COLLECTED FROM THE FEDERAL GOVERNMENT
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The District of Columbia's Clean Air Compliance Fee is a tax and may not be imposed on the federal government, because the D.C. Council lacks authority to impose taxes on the property of the United States.

January 23, 1996


APPLICATION OF 28 U.S.C. § 458 TO PRESIDENTIAL APPOINTMENTS OF FEDERAL JUDGES
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Section 458 of title 28 does not apply to executive branche's ability to obligate appropriated funds conditional upon presidential appointments of judges to the federal judiciary.

December 18, 1995


LEGISLATION DENYING CITIZENSHIP AT BIRTH TO CERTAIN CHILDREN BORN IN THE UNITED STATES
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A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face.

A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation's constitutional history and constitutional traditions.


December 13, 1995


EFFECT OF APPROPRIATIONS FOR OTHER AGENCIES AND BRANCHES ON THE AUTHORITY TO CONTINUE DEPARTMENT OF JUSTICE FUNCTIONS DURING THE LAPSE IN THE DEPARTMENT'S APPROPRIATIONS
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Where Congress has provided appropriations for the legislative branch, the Department of Justice may continue to provide testimony at hearings and perform other services related to funded functions of the legislative branch during a lapse in funding for the Department, if the participation of the Department is necessary for the hearing or other funded function to be effective.

Similarly, those functions of the Department of Justice that are necessary to the effective execution of functions by an agency or department of government that has current fiscal year appropriations, such that a suspension of the Department's functions during a lapse in its own appropriations would prevent or significantly damage the execution of those funded functions, may continue during the Department's funding lapse.

December 13, 1995


PROPOSED DEPLOYMENT OF UNITED STATES ARMED FORCES INTO BOSNIA
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The President, acting without specific statutory authorization, may lawfully introduce United States ground troops into Bosnia in order to assist North Atlantic Treaty Organization to ensure compliance with a peace agreement.

November 30, 1995


PRESIDENTIAL DISCRETION TO DELAY MAKING DETERMINATIONS UNDER THE CHEMICAL AND BIOLOGICAL WEAPONS CONTROL AND WARFARE ELIMINATION ACT OF 1991
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The President is required to make a determination that would trigger sanctions under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 if he is presented with sufficient evidence to compel the determination.

The President may delay making a determination that would trigger sanctions under the Act when the delay is necessary to protect intelligence sources or methods used in counter-proliferation activities.

The President may delay making a determination that would trigger sanctions under the Act when no reasonable alternative means exists to protect the life of an intelligence source.

November 16, 1995


PARTICIPATION IN CONGRESSIONAL HEARINGS DURING AN APPROPRIATIONS LAPSE
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Under the Antideficiency Act, an officer or employee of the Department of Justice may participate in a congressional hearing during a lapse in appropriations for the Department if he or she is a Senate-confirmed officer, if appropriated funds are available for his or her participation, if he or she is subpoenaed, or if there exists other express or necessarily implied authorization to participate in the hearing.

November 16, 1995


THE SECRETARY OF THE TREASURY'S AUTHORITY WITH RESPECT TO THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND
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5 U.S.C. § 8348 empowers the Secretary of the Treasury to suspend the investment of additional contributions to the Civil Service Retirement and Disability Fund and redeem prior to maturity CSRDF investment assets in order to avoid exceeding the statutory debt limit.

In exercising his CSRDF redemption authority, the Secretary of the Treasury may, during a "debt issuance suspension period," redeem CSRDF investment assets based on the total amount of civil service retirement and disability benefits authorized to be paid during the period.

The Secretary of the Treasury has discretion to designate the length of a debt issuance suspension period based on factors, identified by the Secretary, that are reasonably relevant to his determination.

The suspension during a debt limit crisis of CSRDF investment and the redemption of CSRDF investment assets would not cause a violation of the public debt limit.

November 10, 1995


AUTHORIZATION OF IMMIGRATION EMERGENCY FUND REIMBURSEMENTS
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The continuing resolution enacted on September 30, 1995, does not limit or suspend the authority that would otherwise exist for the obligation or expenditure of an Immigration Emergency Fund reimbursement pursuant to § 404(b) of the Immigration and Nationality Act.

The Immigration Emergency Fund may be used to reimburse the State of Florida for its increase in social service and health expenses deriving from the influx of Cuban immigrants resulting from a Presidential decision.

November 8, 1995


REASSIGNMENT OF ASSISTANT SECRETARY OF LABOR WITHOUT SENATE RECONFIRMATION
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Where the Secretary of Labor exercises statutory power to reassign the duties of a lawfully confirmed Assistant Secretary of Labor whose duties are not otherwise assigned by statute, reconfirmation of the Assistant Secretary is not legally required.

November 2, 1995


CONSTITUTIONALITY OF AWARDING HISTORIC PRESERVATION GRANTS TO RELIGIOUS PROPERTIES
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A court applying current precedent is most likely to conclude that the direct award of historic preservation grants to churches and other pervasivley sectarian institutions violates the Establishment Clause of the Constitution.

October 31, 1995


THE FOOD AND DRUG ADMINISTRATION'S DISCRETION TO APPROVE METHODS OF DETECTION AND TO DEFINE THE TERM "NO RESIDUE" PURSUANT TO THE FEDERAL FOOD, DRUG, AND COSMETIC ACT
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The Food and Drug Administration has the discretionary authority under the DES proviso to the Delaney Clause of the Federal Food, Drug, and Cosmetic Act to prohibit the use of an additive in animal feed if the FDA concludes that there is no method that can "reliably measure and confirm" whether the additive contains residues of carcinogenic concern at or above the "no residue" level.

Where the FDA has already approved a method for detecting the presence of residues of carcinogenic concern, the DES proviso does not require the FDA to revise its regulations to adopt the "best available" such method.

The FDA lacks the discretion to determine that an edible tissue contains "no residue" when a method of detection reveals the presence of residues of carcinogenic concern that is below the "no significant risk" level.

October 13, 1995


SCOPE OF TREASURY DEPARTMENT PURCHASE RIGHTS WITH RESPECT TO FINANCING INITIATIVES OF THE U.S. POSTAL SERVICE
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If the Treasury Department has declared its election to purchase a proposed U.S. Postal Service bond issue pursuant to 39 U.S.C. § 2006(a) prior to the proposed date of issuance and is pursuing good-faith negotiations towards such purchase as of such date, the USPS is not free to proceed with issuance of the bonds to other purchasers solely because Treasury has not completed purchase of the bonds within a 15-day period following USPS' initial notice of the proposed issue.

If, in the above circumstances, Treasury and the USPS are unable to negotiate mutually agreeable terms within a commercially reasonable period of time following USPS' proposed date for the issuance of its bonds, then the USPS may proceed with the issuance of such bonds to other purchasers.

Treasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded a reasonable opportunity to reach mutually agreeable terms with the USPS when the original terms proposed by the USPS are unacceptable. That reasonable opportunity is not rigidly limited by the 15-day period for declaring an election to purchase.

October 10, 1995


AUTHORITY TO EMPLOY THE SERVICES OF WHITE HOUSE OFFICE EMPLOYEES DURING AN APPROPRIATIONS LAPSE
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The Antideficiency Act permits the White House Office to employ personnel during an appropriations lapse for functions that are excepted from the Act's general prohibition: functions relating to emergencies involving an imminent threat to the safety of human life or protection of prperty; other functions as to which express statutory authority to incur obligations in advance of appropriations has been granted; those functions for which such authirty arises by necessary implication; and certain functions necessary to the discharge of the President's constitutional duties and powers. Suche personnel may not be paid, however, until appropriations are enacted.

The President may use his authority under 3 U.S.C. § 105 to create and fill nonsalaried positions in the White House Office during an appropriations lapse, but nonsalaried employees cannot receive an obligation of payment for the services they perform in that capacity.

White House Office employees appointed under 3 U.S.C. § 105 may waive their compensation, and if they do so, their services may be accepted during an appropriations lapse.

September 13, 1995


CONSTITUTIONAL LIMITATIONS ON FEDERAL GOVERNMENT PARTICIPATION IN BINDING ARBITRATION
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The Appointments Clause does not prohibit the federal government from submitting to binding arbitration.

Nor does any other constitutional provision or doctrine impose a general prohibition against the federal government entering into binding arbitration, although the Constitution does impose substantial limits on the authority of the federal government to enter into binding arbitration in specific cases.

September 7, 1995


LEGAL GUIDANCE ON THE IMPLICATIONS OF THE SUPREME COURT'S DECISION IN ADARAND CONSTRUCTORS, INC. v. PEÑA
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This memorandum sets forth preliminary legal guidance on the implications of the Supreme Court's decision in Adarand Constructors, Inc. v. Peña, which held that "strict scrutiny" is the standard that governs judicial review of the constitutionality of federal affirmative action programs that use racial and ethnic criteria as a basis for decision-making The memorandum is not intended to serve as a definitive statement of what Adarand means for any particular affirmative action program; rather, it is intended to provide a general overview of the Court's decision and the application of the strict scrutiny standard in the context of affirmative action.

June 28, 1995


EFFECTS OF A PRESIDENTIAL PARDON
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A full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien under 8 U.S.C. § 1251(a)(2)

A full and unconditional presidential pardon removes a state direarm disability arising as a result of a conviction of a federal crime.

A full and unconditional presidential pardon extends to the remission of restitution ordered by a court pursuant to 18 U.S.C. § 355-1(b)-(c) as a "sanction" authorized in addition to imprisonment, probation, or a fine until such times as the restitution award is paid to the victim.

June 19, 1995


WAIVER OF CLAIMS FOR DAMAGES ARISING OUT OF COOPERATIVE SPACE ACTIVITY
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Congress has not authorized the National Aeronautics and Space Administration to waive subrogated claims on behalf of federal agencies against certain foreign States for damages arising out of cooperative space activity.

An amendment to the Space Act would be necessary to grant NASA the authority to waive subrogated claims on behalf of federal agencies against foreign States for damages arising out of cooperative space activity.

The President may waive claims, including subrogated claims, against foreign governments, in exchange for a reciprocal waiver from the foreign government. The President may delegate this authority to an agency head.

The weight of authority supports the President's power to waive state claims against a foreign government.

June 7, 1995


FIDUCIARY OBLIGATIONS REGARDING BUREAU OF PRISONS COMMISSARY FUND
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31 U.S.C. § 1321 and its accompanying Department of Justice regulations do not impose a fiduciary obligation on the Bureau of Prisons to expend Commissary Fund moneys only in accordance with the terms of the Commissary Fund trust.

May 22, 1995


BILL TO RELOCATE UNITED STATES EMBASSY FROM TEL AVIV TO JERUSALEM
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The provisions of a bill that render the executive branch's ability to obligate appropriated funds conditional upon the construction and opening in Jerusalem of the United States Embassy to Israel invade exclusive presidential authorities in the filed of foreign affairs and are unconstitutional.

May 16, 1995


AUTHORITY OF THE SECRETARY OF THE TREASURY TO ORDER THE CLOSING OF CERTAIN STREETS LOCATED ALONG THE PERIMETER OF THE WHITE HOUSE
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18 U.S.C. § 3056 grants the Secretary of the Treasury broad authority to take actions that are necessary and proper to protect the President, including the authority to order the closing of certain streets located along the perimeter of the White House.

May 12, 1995


WHETHER 18 U.S.C.§ 603 BARS CIVILIAN EXECUTIVE BRANCH EMPLOYEES AND OFFICERS FROM MAKING CONTRIBUTIONS TO A PRESIDENT'S AUTHORIZED RE-ELECTION CAMPAIGN COMMITTEE WHITE HOUSE
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Civilian employees and officers in the executive branch would not violate 18 U.S.C. § 603, as amended by the Hatch Act Reform Amendments of 1993, by making contributions to a President's authorized reelection campaign committee, so long as such contributions were not made in a manner that would violate the specific prohibitions of 5 U.S.C. §§ 7324(a)(1)-(4).

May 5, 1995


IMPERMISSIBILITY OF DEPUTIZING THE HOUSE SERGEANT AT ARMS AS A SPECIAL DEPUTY U.S. MARSHAL
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Appointment of the House Sergeant at Arms as a Special Deputy U.S. Marshal would entail an overlapping of congressional and executive accountability that is incompatible with separation of powers requirements.

Appointment of the House Sergeant at Arms as a Special Deputy U.S. Marshal would impermissibly involve the institution of Congress in executive branch law enforcement.

April 10, 1995


EXECUTIVE ORDER NO. 12954, ENTITLED "ENSURING THE ECONOMICAL AND EFFICIENT ADMINISTRATION AND COMPLETION OF FEDERAL GOVERNMENT CONTRACTS"
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The Federal Property and Administrative Services Act vests the President with authority to issue Executive Order No. 12954 in light of his finding that it will promote economy and efficiency in government procurement.

March 9, 1995


USE OF THE EXCHANGE STABILIZATION FUND TO PROVIDE LOANS AND CREDITS TO MEXICO
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As part of an international financial support package for Mexico, the President and the Treasury Secretary have the authority under section 10(a) of the Gold Reserve Act of 1934, as amended, to use the Treasury Department's Exchange Stabilization Fund to provide loans and credits to Mexico in the form of (i) short-term currency "swaps" through which Mexico will borrow U.S. dollars in exchange for Mexican pesos for 90 days; (ii) medium-term currency swaps through which Mexico will borrow U.S. Dollars for up to five years; and (iii) guaranties through which the United States will back-up Mexico's obligations on government securities for up to ten years.

March 2, 1995


PERMISSIBILITY OF THE ADMINISTRATION AND USE OF THE FEDERAL PAYROLL ALLOCATION SYSTEM BY EXECUTIVE BRANCH EMPLOYEES FOR CONTRIBUTIONS TO POLITICAL ACTION COMMITTEES
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Federal employees who would offer the use of, or administer, the federal salary-allocation system for allotments to political action committees, would not, without more, violate 18 U.S.C. §§ 602 and 607, or the civil provisions of the Hatch Act Reform Amendments of 1993.

The Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions continue outside normal duty hours and while away from the normal duty post, from using the salary-allocation system to make contributions to political action committees.

The Hatch Act Reform Amendments of 1993 would not prohibit the remainder of federal employees covered by those Amendments from making contributions to political action committees through the salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly prohibit such employees from taking steps to use the salary-allocation system to make such contributions while they are on duty or in a federal building.

While use of the salary-allocation system for contributions to political action committees would be lawful under certain circumstances, the head of each federal agency has the discretion to decide whether to make the system available for that purpose to employees of the agency.

February 22, 1995


AUTHORITY OF FBI AGENTS, SERVING AS SPECIAL DEPUTY UNITED STATES MARSHALS, TO PURSUE NON-FEDERAL FUGITIVES
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Regardless of whether federal process is outstanding or anticipated, agents of the Federal Bureau of Investigation have authority to investigate fugitive felons when there is a reasonable basis to believe that doing so will detect or prevent the commission of a federal crime. U.S. Marshals, including FBI agents serving as Special Deputy U.S. Marshals, have authority under 28 U.S.C. § 566(e)(1)(B) to investigate and pursue fugitives wanted under state felony warrants whenever such action is undertaken pursuant to a special apprehension program approved by the Attorney General. Where a U.S. Marshal or Special Deputy U.S. Marshal is engaged in an approved investigation of state law fugitives under section 566(e)(1)(B), the marshal's derivative state sheriff powers under 28 U.S.C. § 564 and the marshal's inherent authority to take enforcement actions necessary to carry out his federal duties provide bases for the marshal to arrest such fugitives. Neither the doctrine of legislative ratification nor the U.S. Marshals Service's inherent or "federal common law" authority provide independent, non-statutory legal authority for marshals to pursue or arrest fugitives sought for state law violations only. In circumstances where there is good reason to believe that the pursuit or arrest will prevent the commission of a federal felony, marshals do have limited inherent authority to take the necessary preventive measures.

February 21, 1995


INTERNAL REVENUE SERVICE NOTICES OF LEVY ON UNDELIVERED COMMERCE DEPARTMENT FISHING QUOTA PERMITS
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Internal Revenue Service notices of levy may lawfully be applied to the undelivered quota shares or individual fishing quotas to be issued by the Department of Commerce to taxpayers who have otherwise qualified for them.

January 26, 1995


THE BALANCED BUDGET AMENDMENT
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The lack of any enforcement mechanism in current proposals to amend the Constitution to require a balanced budget could result in the transfer of power over fundamental political questions of taxing and spending to the courts. This would represent a substantial reordering of our basic constitutional structure. Before resorting to the drastic step of amending the Constitution, Congress should explore other reasonable alternatives, including line item veto legislation.

January 23, 1995


RELATIONSHIP BETWEEN DEPARTMENT OF JUSTICE ATTORNEYS AND PERSONS ON WHOSE BEHALF THE UNITED STATES BRINGS SUITS UNDER THE FAIR HOUSING ACT
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When the Department of Justice undertakes a civil action on behalf of a complainant alleging a discriminatory housing practice under the Fair Housing Act, Department attorneys handling the action do not enter into an attorney-client relationship with the complainant, nor do they undertake a fiduciary obligation to the complainant. Because no attorney-client relationship is established in such undertakings, no retainer agreement between the complainant and the Department attorneys should be entered into.

January 20, 1995


AUTHORITY OF THE FEDERAL FINANCIAL SUPERVISORY AGENCIES UNDER THE COMMUNITY REINVESTMENT ACT
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The federal financial supervisory agencies lack authority under the Community Reinvestment Act of 1977 to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to administrative enforcement actions under 12 U.S.C. § 1818.

December 15, 1994


WHETHER URUGUAY ROUND AGREEMENTS REQUIRED RATIFICATION AS A TREATY
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The Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade did not require ratification by the Senate as a treaty, but could constitutionally be executed by the President and approved and implemented by Act of Congress.

November 22, 1994


CONGRESSIONAL TESTIMONY OF AN ASSISTANT UNITED STATES ATTORNEY ON BEHALF OF THE NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS naausa (HTML)
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The Department of Justice correctly takes the position that it may not prohibit an Assistant United States Attorney ("AUSA") from testifying before Congress in his or her personal capacity on behalf of the National Association of Assistant United States Attorneys.

The Department of Justice rules regulating such testimony are consistent with the First Amendment. Those rules require that the AUSA make it clear that he or she is not speaking for the Department, avoid using or permitting the use of his or her official title or position in connection with the testimony (except as one of several biographical details), and comply with rules on the protection of confidential information.

November 7, 1994


APPLICATION OF 18 U.S.C. § 205 TO COMMUNICATIONS BETWEEN THE NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS AND THE DEPARTMENT OF JUSTICE
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The restrictions of 18 U.S.C. § 205 preclude current federal employees from representing the National Association of Assistant United States Attorneys ("NAAUSA") before the Department of Justice regarding compensation, workplace issues, and other issues that focus on the interests of Assistant United States Attorneys ("AUSAs") or another discrete and identifiable class of persons or entities.

Section 205 does not preclude several other kinds of communications between the Department and NAAUSA or similar associations. The Department is not precluded from dealing with individual AUSAs or groups of AUSAs in their official capacities on matters affecting AUSAs, even if those AUSAs are coincidentally members of NAAUSA. Nor does section 205 place any restrictions on representatives who are not current federal employees, such as NAAUSA's executive director or former AUSAs no longer employed by the government. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute.

November 7, 1994


PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES
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This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

November 2, 1994


THE TWENTY-SECOND DECENNIAL CENSUS
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Neither the Enumeration Clause of the Constitution nor the Census Act precludes the Bureau of the Census from statistically adjusting "headcounts" in the decennial census for the year 2000 or conducting the non-response follow-up on a sample basis. The provision in the Census Act prohibiting sampling for purposes of apportionment of the House of Representatives does not preclude reliance upon statistical adjustments that would improve the accuracy of "headcount" data.

October 7,1994


AVAILABILITY OF MONEY DAMAGES UNDER THE RELIGIOUS FREEDOM RESTORATION ACT
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Section 3(c) of the Religious Freedom Restoration Act, which makes available "appropriate relief" in judicial proceedings against federal and state government entities, does not waive or abrogate the sovereign immunity of federal and state governments against the award of money damages.

October 7, 1994


DEPLOYMENT OF UNITED STATES ARMED FORCES INTO HAITI
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The President possessed the legal authority to deploy United States Armed Forces into Haiti.

The planned deployment accorded with the sense of Congress, satisfied the requirements of the War Powers Resolution, and was not a "war" with the meaning of the Constitution.

September 27, 1994


CONSTITUTIONALITY OF LEGISLATION EXTENDING THE TERMS OF OFFICE OF UNITED STATES PAROLE COMMISSIONERS
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Legislation extending the term of an officer who serves at will does not violate the Appointments Clause of the United States Constitution. Because United States Parole Commissioners may be removed by the President at will, Pub. L. 101-650, § 316, which extends the terms of office of certain Parole Commissioners, does not violate the Appointments Clause.

July 15, 1994


UNITED STATES ASSISTANCE TO COUNTRIES THAT SHOOT DOWN CIVIL AIRCRAFT INVOLVED IN DRUG TRAFFICKING
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The Aircraft Sabotage Act of 1984 applies to the police and military personnel of foreign governments. In particular, the Act applies to the use of deadly force by such foreign governmental actors against civil aircraft in flight that are suspected of transporting illegal drugs. There is accordingly a substantial risk that United States Government officers and employees who provide flight tracking information or certain other forms of assistance to the aerial interdiction programs of foreign governments that have destroyed such aircraft, or that have announced an intent to do so, would be aiding and abetting conduct that violated the Act.

July 14, 1994


REVIEW OF 1988 OPINION CONCERNING THE APPLICABILITY OF SECTION 504 OF THE REHABILITATION ACT TO INDIVIDUALS INFECTED WITH HIV
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The 1988 Office of Legal Counsel opinion accurately describes the duties imposed by section 504 of the Rehabilitation Act with respect to individuals infected with the Human Immunodeficiency Virus. The subsequent passage of the Americans with Disabilities Act did not alter the analysis of cases arising under the Rehabilitation Act, although an amendment to section 504 now requires reference to standards set forth in the ADA. Application of the standards set forth under section 504 in any particular case requires consideration of current scientific understanding of HIV infection. Advances in the scientific understanding of HIV infection since 1988 may undermine some of the discussion in the 1988 opinion about the application of these standards to individual cases.

July 8, 1994


APPLICABILITY OF 18 U.S.C. § 208 TO PROPOSED APPOINTMENT OF GOVERNMENT OFFICIAL TO THE BOARD OF CONNIE LEE ITI
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An executive branch officer or employee appointed to the Board of Directors of Connie Lee would be a "director" within the meaning of 18 U.S.C. § 208(a) and therefore would be disqualified from participating "personnally and substantially" in any "particular matter" implicating the financial interests of Connie Lee unless the conditions of subsection 208(b) are satisfied.

June 22, 1994


PRE-JUDGMENT INTEREST UNDER THE BACK PAY ACT FOR REFUNDS OF FEDERAL INSURANCE CONTRIBUTIONS ACT OVERPAYMENTS
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The Back Pay Act's authorization of prejudgment interest does not apply to the return of a Federal Insurance Contributions Act tax overpayment. Even if the Back Pay Act did apply to such returns, an agency's specific exemption from liability under FICA would override the provisions of the Back Pay Act.

May 31, 1994


DEPUTIZATION OF MEMBERS OF CONGRESS AS SPECIAL DEPUTY U.S. MARSHALS
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The deputization of members of Congress as special Deputy U.S. Marshals is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.

May 25, 1994


RECONSIDERATION OF APPLICABILITY OF THE DAVIS-BACON ACT TO THE VETERAN ADMINISTRATION'S LEASE OF MEDICAL FACILITIES
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Contrary to the view expressed in an earlier Opinion of the Office of Legal Counsel, the plain language of the Davis-Bacon Act does not bar its application to a lease contract on the ground that such contracts are per se not contracts for construction. The applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the details of the particular contract.

May 23, 1994


AUTHORITY OF DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT TO INITIATE ENFORCEMENT ACTIONS UNDER THE FAIR HOUSING ACT AGAINST OTHER EXECUTIVE BRANCH AGENCIES
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Because substantial separation of powers concerns would be raised by construing the Fair Housing Act ("the Act") to authorize the Department of Housing and Urban Development ("HUD") to initiate enforcement proceedings against other executive branch agencies, the Act cannot be so construed unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, it does not grant HUD this authority.

There is no basis for construing the Act so that the HUD investigative and administrative process under the Act may be deemed applicable, but the judicial enforcement procedures deemed inapplicable.

May 17, 1994


ELIGIBILITY OF INVOLUNTARY WARTIME RELOCATEES TO JAPAN FOR REDRESS UNDER THE CIVIL LIBERTIES ACT OF 1988
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The proposed Department of Justice change in its interpretation of the Civil Liberties Act of 1988 to extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involuntary is a reasonable and permissible interpretation of the statute. Although an agency interpretation that has been modified or reversed is likely to receive less deference by a reviewing court than a consistent and contemporaneous interpretation, the fact of modification does not preclude the court from granting deference to the new interpretation.

May 10, 1994


EQUITABLE TRANSFERS OF FORFEITED MONIES OR PROPERTY
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When the federal government makes an equitable transfer of forfeited monies or property to a state or local law enforcement agency, that transfer is more appropriately characterized as a conditional gift to the agency rather than as a formal contract between the federal government and the agency.

If the state or local agency fails to use the transferred property for law enforcement purposes, the federal government may be able to pursue restitution of the property.

April 19, 1994


MARAD RULEMAKING AUTHORITY UNDER CARGO PREFERENCE LAWS
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The U.S. Maritime Administration has the authority to promulgate rules establishing mandatory uniform charter terms for the carriage of cargoes subject to the Cargo Preference Act of 1954.

April 19, 1994


AUTHORITY OF USDA TO AWARD MONETARY RELIEF FOR DISCRIMINATION
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The Department of Agriculture has authority to award monetary relief, attorneys' fees, and costs to a person who has been discriminated against in a program conducted by USDA if a court could award such relief in an action by the aggrieved person. That question is controlled by whether the anti-discrimination provisions of the applicable civil rights statute apply to federal agencies, and if so, whether the statute waives the sovereign immunity of the United States against imposition of such relief.

The anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 do not apply to federal agencies. Some anti-discrimination provisions in each of the other civil rights statutes addressed in the opinion do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys' fees and costs may be awarded pursuant to the waiver of immunity contained in the Equal Access to Justice Act.

April 18, 1994


SIXTH AMENDMENT IMPLICATIONS OF LAW ENFORCEMENT CONTACT WITH CORPORATE EXECUTIVES
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Law enforcement contacts with high-ranking executives of a corporation after criminal charges have been filed against the corporation violate the corporation's Sixth Amendment right to counsel.

No Sixth Amendment violation occurs when law enforcement contacts with high-ranking executives occur while civil penalty proceedings are in progress against the corporation.

April 15, 1994


WHETHER MEMBERS OF THE SENTENCING COMMISSION WHO WERE APPOINTED PRIOR TO THE ENACTMENT OF A HOLDOVER STATUTE MAY EXERCISE HOLDOVER RIGHTS PURSUANT TO THE STATUTE
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Statutory provisions that allow members of the United States Sentencing Commission to hold over in office after their terms have expired apply to incumbent members who were appointed prior to the enactment of the holdover statute.

Commissioners who were appointed prior to the enactment of the holdover statute may constitutionally exercise such holdover rights without violating the Appointments Clause.

April 5, 1994


APPLICATION OF THE BRADY ACT'S CRIMINAL PENALTIES TO STATE OR LOCAL LAW ENFORCEMENT OFFICERS
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The criminal penalties contained in the Brady Handgun Violence Protection Act do not apply to state or local law enforcement officers in the performance of their duties under the Brady Act. Accordingly, the United States lacks the authority to prosecute state or local officials for violations of the Brady Act.

March 16, 1994


OCC MORTGAGE LENDING TESTING PROGRAM
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Individuals who serve as "testers" in a proposed Office of the Comptroller of the Currency program designed to identify discriminatory lending practices by national banks would not violate any federal criminal laws if, as part of the program, they provide false information to targeted banks.

March 8, 1994


APPLICABILITY OF EMOLUMENTS CLAUSE TO EMPLOYMENT OF GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES
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The Emoluments Clause does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign State when making faculty employment decisions.

March 1, 1994


WHETHER THE OFFICE OF THE VICE PRESIDENT IS AN "AGENCY" FOR PURPOSES OF THE FREEDOM OF INFORMATION ACT
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The Office of the Vice President is not an "agency" for purposes of the Freedom of Information Act.

February 14, 1994


DENIAL OF PUBLIC ACCESS TO TRIAL EXHIBITS IN CHILD PORNOGRAPHY PROSECUTIONS
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Courts may deny public access to exhibits entered into evidence in child pornography prosecutions.

February 10, 1994


RESPONSIBILITY FOR ISSUING REVISED HATCH ACT REGULATIONS
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The Office of Personnel Management, rather than the Office of Special Counsel, has the authority to promulgate regulations delimiting the scope and nature of permissible activities under the Hatch Act Reform Amendments of 1993.

February 2, 1994


RECONSIDERATION OF PRIOR OPINION CONCERNING LAND-GRANT COLLEGES
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After reconsideration of a prior opinion, we adhere to the conclusion that the State of West Virginia may validly designate West Virginia State College as the beneficiary of appropriated funds under the Second Morrill Act of 1890.

Reversing a prior conclusion, we find that the State's designation of the College as a Second Morrill Act beneficiary does not make that institution eligible for funds appropriated under certain statutes administered by the Department of Agriculture.

December 23, 1993


ADMISSIBILITY OF ALIEN AMNESTY APPLICATION INFORMATION IN PROSECUTIONS OF THIRD PARTIES
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The confidentiality provisions of the Immigration Reform and Control Act of 1986 generally bar federal prosecutors from introducing information from alien amnesty applications as evidence in criminal prosecutions of third parties, but the use of such information is not barred in prosecutions of third parties for crimes that facilitate, or are closely related to, the filing of a false amnesty application.

Justice Department use of amnesty application information is also subject to regulations issued by the Immigration and Naturalization Service. Those regulations limit such use against third parties to the prosecution of persons who have "created or supplied a false writing or document for use" in an amnesty application.

December 22, 1993


CLARIFICATION OF PRIOR OPINION REGARDING BORROWING BY BANK EXAMINERS
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18 U.S.C. § 213, which prohibits federal bank examiners from borrowing from Federal Reserve member banks or other entities subject to examination by them, does not prohibit such examiners from receiving loans or credit from affiliates of covered banks merely because such affiliates are under "common control" with the bank or because the covered bank and the affiliate have a common majority of corporate officers or directors.

An examiner would be prohibited from borrowing from such an affiliated entity, where the affiliate is serving as a conduit or "front" for the implementation of a loan that is actually extended due to the direction, instigation, or influence of the affiliated member bank or person connected therewith.

December 20, 1993


AUTHORITY TO PAY STATE AND LOCAL TAXES ON PROPERTY AFTER ENTRY OF AN ORDER OF FORFEITURE
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The Attorney General has discretionary authority to make payments of state and local tax claims against civilly forfeited property after a forfeiture order has issued, based on her equitable discretion to administer civilly forfeited property, under 21 U.S.C. § 881(b)-(e) and 28 U.S.C. § 524(c)(1).

The Attorney General has discretion to pay state and local tax claims against criminally forfeited property, under the authority in those statutes to "take any other action to protect the rights of innocent persons which is in the interests of justice."

December 9, 1993


APPLICABILITY OF EXECUTIVE ORDER NO. 12674 TO PERSONNEL OF REGIONAL FISHERY MANAGEMENT COUNCILS
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The appointed members of Regional Fishery Management Councils established under the Magnuson Fishery Conservation and Management Act and other personnel of those Councils are not Executive Branch employees for purposes of Executive Order No. 12674 and its implementing regulations, and thus are not subject to that Order.

December 9, 1993


CONSTITUTIONALITY OF VESTING MAGISTRATE JUDGES WITH JURISDICTION OVER ASSET FORFEITURE CASES
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A statute vesting jurisdiction over asset forfeiture cases in magistrate judges would violate Article III of the Constitution.

December 6, 1993


WHETHER MISSOURI MUNICIPALITIES MAY TAX THE PORTION OF FEDERAL SALARIES VOLUNTARILY CONTRIBUTED TO THE THRIFT SAVINGS PLAN
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Intergovernmental tax immunity does not preclude municipalities in Missouri from levying an earnings tax on the voluntary contributions of federal employees to the Thrift Savings Plan.

November 10, 1993


THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS
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Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.

November 3, 1993


CONSTITUTIONALITY OF HEALTH CARE REFORM
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The proposed Health Security Act is well within the authority of the Congress under the Commerce Clause, and it does not violate Tenth Amendment or other principles of federalism.

The proposal contains no unconstitutional takings of private property or infringement of liberty interests.

The proposed delegation of administrative authority to the National Health Board, and, from it, to state alliances, is not an impermissible delegation of legislative authority.

October 29, 1993


APPLICABILITY OF THE EMOLUMENTS CLAUSE TO NON-GOVERNMENT MEMBERS OF ACUS
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Non-government members of the Administrative Conference of the United States (ACUS) are prohibited by the Emoluments Clause from accepting, absent Congress's consent, a distribution from their partnerships that includes some proportionate share of the revenues generated from the partnership's foreign government clients.

Non-government members of ACUS are also generally forbidden, absent Congress's consent, from accepting payments from commercial entities owned or controlled by foreign governments.

October 28, 1993


LIABILITY OF THE UNITED STATES FOR STATE AND LOCAL TAXES ON SEIZED AND FORFEITED PROPERTY
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In civil forfeiture proceedings (under 21 U.S.C. § 881), the United States is obligated to pay liens for state and local taxes accruing after the commission of the offense leading to forfeiture and before the entry of a judicial order of forfeiture, if the lien-holder establishes, before the court enters the order of forfeiture, that it is an innocent owner of the interest it asserts.

In criminal forfeiture proceedings (under 18 U.S.C. § 1963 or 21 U.S.C. § 853), the United States may not pay such liens because state and local tax lien-holders are not bona fide purchasers for value of the interests they would assert, and therefore do not come within any applicable exception to a statute that, upon entry of a court's final order of forfeiture, vests full ownership retroactively in the United States as of the date of the offense.

October 18, 1993


IMMIGRATION CONSEQUENCES OF UNDOCUMENTED ALIENS' ARRIVAL IN UNITED STATES TERRITORIAL WATERS
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Undocumented aliens interdicted within the twelve-mile zone that comprises the United States's territorial sea are not entitled to a hearing under the exclusion provisions of the Immigration and Nationality Act (INA).

The Immigration and Naturalization Service had the authority to promulgate an interpretative rule construing the "territorial waters" of the United States, as referred to in section 287 of the INA, to extend for twelve nautical miles.

October 13, 1993


SUSPENSION OF A UNITED STATES MARSHAL
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With the prior approval of the President, the Attorney General may suspend a United States Marshal without pay.

During the period of a United States Marshal's suspension, the Attorney General may designate an Acting United States Marshal to carry out the duties of the office.

September 23, 1993


REIMBURSEMENT FOR COSTS OF ATTENDING CERTAIN BANQUETS
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Employees in the United States Attorneys' offices may properly be reimbursed for the costs of attending retirement banquets for state law enforcement officials under appropriate circumstances. However, reimbursement for attendance at such functions should be limited to circumstances where the nature of the ceremonial event in question provides good reason to believe that the employee's attendance advances the authorized functions or programs of the office.

September 23, 1993


DISCLOSURE OF GRAND JURY MATTERS TO THE PRESIDENT AND OTHER OFFICIALS
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The Attorney General may disclose grand jury material covered by Rule 6(e) of the Federal Rules of Criminal Procedure to the President and members of the National Security Council where such disclosure is for the purpose of assisting the Attorney General in her enforcement of federal criminal law. Although under those circumstances such disclosure may be made without prior judicial approval, the names of those receiving the grand jury material must be submitted to the court that impaneled the grand jury in question.

There are also circumstances where the President's constitutional responsibilities may provide justification for the Attorney General to disclose grand jury matters to the President independent of the provisions of Rule 6(e). Such circumstances might arise, for example, where the Attorney General learns through grand jury proceedings of a grave threat of terrorism, implicating the President's responsibility to take care that the laws be faithfully executed.

September 21, 1993


GENERAL SERVICES ADMINISTRATION PRINTING OPERATIONS
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The Joint Committee on Printing lacks the authority to alter the General Services Administration's printing operations, because the only basis for that authority is an invalid legislative veto provision contained in 44 U.S.C. 501. Section 207 of Public Law 102-392 requires executive branch entities (other than the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency) to procure printing related to the publication of government publications by or through the Government Printing Office.

September 13, 1993


ETHICS ISSUES RELATED TO THE FEDERAL TECHNOLOGY TRANSFER ACT OF 1986
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A government employee-inventor who assigns his rights in an invention to the United States and accepts the government's payment of amounts tied to the resulting royalties, as provided in the Federal Technology Transfer Act of 1986, 15 U.S.C. §§ 15012534, may continue to work on the invention without violating the statute against taking part in matters in which he has a financial interest, 18 U.S.C. § 208, or the statute forbidding supplementation of federal salaries, 18 U.S.C. § 209.

Under 18 U.S.C. § 208, a government employee-inventor may not take official action with respect to an agreement for development of his invention entered into by the United States and a company with which the employee has contracted to exploit the invention abroad.

September 13, 1993


APPLICABILITY OF 18 U.S.C. § 207(c) TO THE BRIEFING AND ARGUING OF CASES IN WHICH THE DEPARTMENT OF JUSTICE REPRESENTS A PARTY
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Section 207(c) of title 18 forbids a former senior employee of the Department of Justice, for one year after his or her service ends, from signing a brief or making an oral argument in a case where the Department represents one of the parties.

August 27, 1993


CONSTRUCTION OF § 406 OF THE FEDERAL EMPLOYEES PAY COMPARABILITY ACT OF 1990
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Section 406 of the Federal Employees Pay Comparability Act of 1990 does not extend the authority to make bonus payments to employees at the New York Field Division of the Federal Bureau of Investigation pursuant to section 601 of the Intelligence Authorization Act for fiscal years 1989 and 1990 beyond the expiration date of the demonstration project established by section 601.

August 23, 1993


APPLICABILITY OF THE CIVIL SERVICE PROVISIONS OF TITLE 5 OF THE UNITED STATES CODE TO THE UNITED STATES ENRICHMENT CORPORATION
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The United States Enrichment Corporation is exempt from the civil service provisions of title 5 of the United States Code.

June 22, 1993


AUTHORITY OF THE SECRETARY OF THE TREASURY REGARDING POSTAL SERVICE BOND OFFERING
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If the Secretary of the Treasury, within the fifteen-day period following notice by the United States Postal Service of a proposed bond issue, declares his election to purchase the bonds under 39 U.S.C. § 2006(a), the Postal Service may not sell the bonds on the open market, but must instead negotiate in good faith with the Secretary to reach agreement on the terms and conditions of a sale to the Secretary.

Transfer of the proceeds of any bond offering by the Postal Service to a trustee for the purpose of having the trustee make payments on outstanding Postal Service debt would be a deposit of Postal Service monies within the meaning of 39 U.S.C. § 2003(d) and, accordingly, could only be done with the approval of the Secretary of Treasury.

January 19, 1993


AUTHORITY TO GRANT CONSERVATION EASEMENTS UNDER 40 U.S.C. § 319
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Federal agencies do not have authority to grant conservation easements in federal property under 40 U.S.C. § 319.

January 19, 1993


AUTHORITY OF THE ATTORNEY GENERAL TO MAKE SUCCESSIVE DESIGNATIONS OF INTERIM UNITED STATES MARSHALS
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Under 28 U.S.C. § 562, the Attorney General may make two or more successive designations of a person to serve as interim United States marshal in a judicial district where the marshal's office is vacant.

After the expiration of an initial designation of a United States marshal under 28 U.S.C. § 562, the Attorney General may authorize a person to act as marshal under 28 U.S.C. §§ 509, 510.

January 19, 1993


AUTHORITY TO USE UNITED STATES MILITARY FORCES IN SOMALIApresiden.8 (HTML)

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The President, in his constitutional role as Commander in Chief and Chief Executive, might reasonably and lawfully determine that it was justified to use United States Armed Forces personnel to protect those engaged in relief work in Somalia. His authority extended to using U.S. military personnel to protect Somalians and other foreign nationals in Somalia.

December 4, 1992


IMMIGRATION AND NATURALIZATION SERVICE PARTICIPATION IN COMPUTER MATCHING PROGRAM WITH THE DEPARTMENT OF EDUCATION
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The Immigration and Naturalization Service has legal authority to participate in a computer matching program with the Department in order to verify the immigration status of alien applicants for federal student aid under Title IV of the Higher Education Act of 1965

September 21, 1992


LEGAL AUTHORITY OF THE DEPARTMENT OF THE TREASURY TO ISSUE REGULATIONS INDEXING CAPITAL GAINS FOR INFLATION
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The Department of the Treasury does not have legal authority to index capital gains for inflation by means of regulation.

September 1, 1992


WHETHER A STATE MAY ELECT ITS UNITED STATES SENATORS FROM SINGLE-MEMBER DISTRICTS RATHER THAN AT-LARGE
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Under the Seventeenh Amendment to the Constitution, a State may not constitutionally elect its United States Senators from two single-member districts rather than at large.

August 20, 1992


ENFORCEMENT JURISDICTION OF THE SPECIAL COUNSEL FOR IMMIGRATION RELATED UNFAIR EMPLOYMENT PRACTICES
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Federal agencies are not included in the phrase "person or other entity" in the antidiscrimination provision of the Immigration Reform and Contol Act, 8 U.S.C. § 1324b(a)(1). Accordingly, the Special Counsel for Immigration Related Unfair Employment Practices is without authority to bring discrimination charges against federal agencies.

August 17, 1992


PROPOSED FEDERAL ABORTION LEGISLATION
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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.

July 1, 1992


MARKETING LOANS FOR GRAINS AND WHEAT
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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.

June 3, 1992


CONGRESSIONAL PAY AMENDMENT
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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.

May 13, 1992


FUNDING FOR THE CRITICAL TECHNOLOGIES INSTITUTE
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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.

May 12, 1992


STATUTORY AUTHORITY TO CONTRACT WITH PRIVATE SECTOR FOR SECURE FACILITIES
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The Federal Bureau of Prisons has statutory authority to contract with the private sector for secure facilities.

March 25, 1992


APPLICATION FOR 18 U.S.C. § 205 TO PROPOSED "MASTER AMICI"
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18 U.S.C. § 205 precludes attorneys in the executive branch from serving as "master amici" in the Court of Veterans Appeals.

March 12, 1992


FOURTH AMENDMENT IMPLICATIONS OF MILITARY USE OF FORWARD
LOOKING INFRARED RADARS TECHNOLOGY FOR CIVILIAN LAW ENFORCEMENT
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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.

March 4, 1992


TRANSFERS OF FORFEITED PROPERTY TO STATE AND LOCAL LAW ENFORCEMENT AGENCIES
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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 enforcementagencies."

January 23, 1992


ISSUES RAISED BY PROVISIONS DIRECTING ISSUANCE OF OFFICIAL OR DIPLOMATIC PASSPORTS
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Section 129(e) of Pub.L. No.102238 and section 503 of Pub.L.No. 102240 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

January 17, 1992


RECESS APPOINTMENTS DURING AN INTRASESSION RECESS
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The President may make interim recess appointments during an intrasession recess of eighteen days.

January 14, 1992



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