Office Of Legal Counsel : MEMORANDUM & OPINIONS

WHETHER CERTAIN DIRECT RECORDING ELECTRONIC VOTING SYSTEMS COMPLY WITH THE HELP AMERICA VOTE ACT AND THE AMERICANS WITH DISABILITIES ACT
drevotingsystems.htm (HTML)
drevotingsystems.wpd (WPD) Size 42K

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.

AUTHORITY OF CHIEF FINANCIAL OFFICER UNDER FY 2003 HUD APPROPRIATIONS
hudapprop.htm (HTML)
hudapprop.wpd (WPD)Size 18K

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.

The Department of Veterans Affairs is authorized to fill prescriptions written by non-VA physicians for veterans placed on VA waiting lists.

AUTHORITY OF THE DEPARTMENT OF THE INTERIOR TO PROVIDE HISTORIC PRESERVATION GRANTS TO HISTORIC RELIGIOUS PROPERTIES SUCH AS THE OLD NORTH CHURCH
OldNorthChurch.htm (HTML)
OldNorthChurch.wpd (WPD) Size 134K

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.

LIMITATIONS ON THE DETENTION AUTHORITY OF
THE IMMIGRATION AND NATURALIZATION SERVICE
INSDetention.htm (HTML)
INSDetention.wpd (WPD) Size 122K

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.

DEPARTMENT OF TRANSPORTATION AUTHORITY TO EXEMPT CANADIAN TRUCK DRIVERS FROM CRIMINAL LIABILITY FOR TRANSPORTING EXPLOSIVES
canadian_truckers.htm (HTML)
canadian_truckers.htm (WPD) Size 67.4K

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

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
bopimprisonment2.htm (HTML)
bopimprisonment2.wpd (WPD) Size 45.8K

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
canadian_truckers.htm (HTML)
canadian_truckers.wpd (WPD) (Size 67.4K)

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
bopimprisonment2.htm (HTML)
bopimprisonment2.wpd (WPD) Size 45.8K

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

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.

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
csb (HTML)
csb (WPD) Size 15.1K

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.

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.

AUTHORITY OF THE DEPUTY ATTORNEY GENERAL UNDER EXECUTIVE ORDER 12333
25 (HTML)
25 (WPD) Size 10.4K

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
section208trustee.htm (HTML)
section208trustee.wpd (WPD) Size 53K

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
cpscchairmanremoval.htm (HTML)
cpscchairmanremoval.wpd (WPD)

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.

INVESTMENT OF FEDERAL TRUST FUNDS FOR CHEYENNE RIVER AND LOWER BRULE SIOUX
siouxtrustop.htm (HTML)
siouxtrustop.wpd (WPD)

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.

NOAA CORPS ELIGIBILITY FOR PROFESSIONAL LIABILITY INSURANCE COSTS REIMBURSEMENT
noaaopfin3.htm (HTML)
noaaopfin3.wpd (WPD) Size 54.5K

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
207cfinal (HTML)
207cfinal (WPD) Size 36.6K

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
giftsolicitationoge (HTML)
giftsolicitationoge (WPD) Size 31.5K

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
femaopinion011901final (HTML)
femaopinion011901final (WPD) Size 52.9K

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
touhy7final (HTML)
touhy7final (WPD) Size 37.5K

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.

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
reimbursementoftransitioncostsfinall (HTML)
reimbursementoftransitioncostsfinall (WPD) Size 20.1K

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

AUTHORIZATION FOR CONTINUING HOSTILITIES IN KOSOVO
final (HTML)
final (WPD) Size 184.1K

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.

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.

DEFINITION OF CANDIDATE UNDER 18 U.S.C. § 207(j)
candidatecommunicationop2 (HTML)
candidatecommunicationop2 (WPD) Size 25K

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.

APPLICATION OF 18 U.S.C. § 207(d) TO CERTAIN EMPLOYEES IN THE TREASURY DEPARTMENT
207d.htm (HTML)
207d.wpd (WPD)

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).

SECTION 235A OF THE IMMIGRATION AND NATIONALITY ACT
ina235Anew (HTML)
ina235Anew (WPD) Size 39K

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.

SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY
titleIIIfinal (HTML)
titleIIIfinal (WPD) Size 74K

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.

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
18usc1302 (HTML)
18usc1302 (WPD) Size 33K

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.

APPLICABILITY OF THE PRIVACY ACT TO THE WHITE HOUSE
privacyact2 (HTML)
privacyact2 (WPD) Size 29.3K

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
209revised3 (HTML)
209revised3 (WPD) Size: 38.7K

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.

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

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
chemsafetyboardopinionfinal (HTML)
chemsafetyboardopinionfinal (WPD) Size 38.7K

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.

EPA ASSESSMENT OF PENALTIES AGAINST FEDERAL AGENCIES FOR VIOLATION OF THE UNDERGROUND STORAGE TANK REQUIREMENTS OF THE RESOURCE CONSERVATION AND RECOVERY ACT
ustop2 (HTML)
ustop2 (WPD) Size 43K

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.

APPLICABILITY OF THE FEDERAL VACANCIES REFORM ACT TO VACANCIES AT THE INTERNATIONAL MONETARY FUND AND THE WORLD BANK
imfrevised (HTML)
imfrevised (WPD) Size 39K

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.

CONTINUATION OF FEDERAL PRISONER DETENTION EFFORTS IN THE FACE OF A USMS APPROPRIATION DEFICIENCY
usmsfinal (HTML)
usmsfinal (WPD) Size 43.6K

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.

DATE OF APPOINTMENT FOR PURPOSES OF CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
appointdate (HTML)
appointdate (WPD) Size 13.1K

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.

STARTING DATE FOR CALCULATING THE TERM OF AN INTERIM UNITED STATES ATTORNEY
termstart (HTML)
termstart (WPD) Size 18.6K

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.

LEGAL EFFECTIVENESS OF A PRESIDENTIAL DIRECTIVE, AS COMPARED TO AN EXECUTIVE ORDER
predirective (HTML)
predirective (WPD) Size 12.2K

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.

AUTHORITY OF THE ADVISORY BOARD FOR CUBA BROADCASTING TO ACT IN THE ABSENCE OF A PRESIDENTIALLY DESIGNATED CHAIRPERSON
abcbopin (HTML)
abcbopin (WPD) Size 27.7K

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.

APPLICABILITY OF 18 U.S.C. § 205(A)(2) TO REPRESENTATION BEFORE NON-FEDERAL AGENCY
agencyfinal (HTML)
agencyfinal (WPD) Size 57K

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.

PARTICIPATION BY PROCESSOR-OWNED CATCHER VESSELS IN INSHORE COOPERATIVES UNDER THE AMERICAN FISHERIES ACT OF 1998
pollockopinionfinal (HTML)
pollockopinionfinal (WPD) Size 70K

Section 210(b) of the American Fisheries Act of 1998 permits catcher vessels owned by shoreside processors to participate in AFA-authorized fishery cooperatives.

TRIBAL RESTRICTIONS ON SHARING OF INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
biodiv14 (HTML)
biodiv14 (WPD) Size 55.8K

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
marbury_ltr (HTML)
marbury_ltr (WPD) Size 23K

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.

PROPOSED CHANGE IN EEOC REGULATIONS CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
eeocop (HTML)
eeocop (WPD) Size 37K

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.

APPLICABILITY OF EEOC PROPOSED FINAL RULE TO THE DEPARTMENT OF VETERANS AFFAIRS
eeova (HTML)
eeova (WPD) Size 27.9K

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.

ASSERTION OF EXECUTIVE PRIVILEGE WITH RESPECT TO CLEMENCY DECISION
falnpotus (HTML)
falnpotus (WPD) Size 26K

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.

APPLICABILITY OF 18 U.S.C. § 219 TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
219new (HTML)
219new (WPD) Size 10.5K

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.

OFFICE OF PERSONNEL MANAGEMENT PETITIONS FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT SYSTEMS PROTECTION BOARD DECISIONS
frtibfinlast (HTML)
frtibfinlast (WPD) Size 50.4K

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.

RESTRICTIONS ON TRAVEL BY VOICE OF AMERICA CORRESPONDENTS
voabal.htm (HTML)
voabal.wpd (WPD) Size 46.4K

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.

INTERNAL REVENUE SERVICE REQUEST FOR DOCUMENTS IN DEFENSE DEPARTMENT POSSESSION
irs_opinion (HTML)
irs_opinion (WPD) Size 24K

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.

ELIGIBILITY OF A DUAL UNITED STATES CITIZEN FOR A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
dualcitizen (HTML)
dualcitizen (WPD) Size 30.9K

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.

THE INAPPLICABILITY OF FEDERAL VACANCIES REFORM ACT'S REPORTING OBLIGATIONS FOR PAS OFFICERS SERVING UNDER STATUTORY HOLDOVER PROVISIONS
damusholdover (HTML)
damusholdover (WPD) Size 19.8K

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.

TESTIMONY CONCERNING THE FEDERALISM ACCOUNTABILITY ACT
test714a (HTML)
test714a (WPD) Size 28.5K

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.

AUTHORITY OF THE UNITED STATES TO ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION
consent_decrees2 (HTML)
consent.decrees2 (WPD) Size 176K

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.

TERM OF A MEMBER OF THE MISSISSIPPI RIVER COMMISSION
mrc2 (HTML)
mrc2 (WPD) Size 13.5K

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.

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.

USMS OBLIGATION TO TAKE STEPS TO AVOID ANTICIPATED APPROPRIATIONS DEFICIENCY
draftop5 (HTML)
draftop5 (WPD) Size 21.5K

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.

WHETHER AND UNDER WHAT CIRCUMSTANCES GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS IS A NONINFRINGING "FAIR USE" UNDER SECTION 107 OF THE COPYRIGHT ACT OF 1976
pincusfinal430 (HTML)
pincusfinal430 (WPD) Size 150K

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.

APPLICABILITY OF TRADE SECRETS ACT TO INTRAGOVERNMENTAL EXCHANGE OF REGULATORY INFORMATION
ofheoopfinsent (HTML)
ofheoopfinsent (WPD) Size 58.9K

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.

GUIDANCE ON APPLICATION OF FEDERAL VACANCIES REFORM ACT OF 1998
finalqa (HTML)
finalqa (WPD) Size 15K

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.

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.

ATTORNEY'S FEES FOR LEGAL SERVICE PERFORMED PRIOR TO FEDERAL EMPLOYMENT
attyfee (HTML)
attyfee (WPD) Size 28.6K

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.

APPLICABILITY OF 18 U.S.C. § 208 TO NATIONAL GAMBLING IMPACT STUDY COMMISSION
hewitt4 (HTML)
hewitt4 (WPD) Size 58.9K

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.

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

APPLICABILITY OF 18 U.S.C. § 1721 TO COLLECTION OF FEE FOR STAMPED CARDS
stampedcardsfin (HTML)
stampedcardsfin (WPD) Size 53.6K

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.

PROPOSED SETTLEMENT OF DIAMOND v. DEPARTMENT OF HEALTH & HUMAN SERVICES
hhsopmop2 (HTML)
hhsopmop2 (WPD) Size 62K

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.

MISCELLANEOUS RECEIPTS ACT EXCEPTION FOR VETERANS' HEALTH CARE RECOVERIES
blood (HTML)
blood (WPD) Size 27.5K

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.

PRESIDENTIAL DETERMINATION ALLOWING FINANCIAL ASSISTANCE TO TIBET
tibet (HTML)
tibet (WPD) Size 34.7K

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.

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
ustr2ltr (HTML)
ustr2ltr (WPD)
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
rule122a10 (HTML)
rule122a10 (WPD) Size 12.2K

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.

OFFICIAL SERVICE BY STATE DEPARTMENT EMPLOYEES ON THE BOARDS OF AMERICAN-SPONSORED SCHOOLS OVERSEAS
schoolsdos (HTML)
schoolsdos (WPD)

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.

AUTHORITY OF THE D.C. COUNCIL UNDER THE HOME RULE ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS
homerule3opn (HTML)
homerule3opn (WPD) Size 34.4K

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.

APPLICATION OF 18 U.S.C. § 208 TO SERVICE BY EXECUTIVE BRANCH EMPLOYEES ON BOARDS OF STANDARD-SETTING ORGANIZATIONS
standardsorg (HTML)
standardsorg (WPD) Size 14.4K

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.

CONSTRUCTION OF STATE REPORTING REQUIREMENTS IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT
section404 (HTML)
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.

INTERPRETATION OF PHRASE "RECOMMENDATION THAT FUNDS BE PUT TO BETTER USE" IN INSPECTOR GENERAL ACT
fbuop2 (HTML)
fbuop2 (WPD) Size 58.7K

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.

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
gsa208fn (HTML)
gsa208fn (WPD) Size 24K

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.

INELIGIBILITY OF NEW JERSEY TRANSIT CORPORATION BOARD MEMBER FOR APPOINTMENT TO AMTRAK BOARD OF DIRECTORS
amtrakrev1 (HTML)
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.

ADMINISTRATIVE SETTLEMENT OF DISPUTES CONCERNING DETERMINATIONS OF MINERAL ROYALTIES DUE THE GOVERNMENT
mmsopd2 (HTML)
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.

CONSTITUTIONAL CONCERNS RAISED BY THE COLLECTIONS OF INFORMATION ANTIPIRACY ACT
righto (HTML)
righto (WPD) Size 143K

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.

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

WAIVER OF STATUTES OF LIMITATIONS IN CONNECTION WITH CLAIMS AGAINST THE DEPARTMENT OF AGRICULTURE
solmem_612 (HTML)
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.

ACCESS TO CRIMINAL HISTORY RECORDS BY NON-GOVERNMENTAL ENTITIES PERFORMING AUTHORIZED CRIMINAL JUSTICE FUNCTIONS
chriltr004 (HTML)
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.

APPOINTMENT OF VICE CHAIR OF FEDERAL RESERVE BOARD TO SERVE CONCURRENTLY AS CHAIR OF THE DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY
reserve (HTML)
reserve (WPD) Size 47K

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.

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

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.

CONSTITUTIONALITY OF PROPOSED LIMITATIONS ON TOBACCO INDUSTRY
tobacco_lr. (HTML)
tobacco.lr (WPD) Size 50K

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.

LEGAL AUTHORITY OF EXECUTIVE OFFICE OF THE PRESIDENT TO REQUIRE INDEPENDENT AGENCIES TO CONDUCT BACKBROUND CHECKS OF NONCAREER SES PERSONNEL CANDIDATES
ses004 (HTML)
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.

COVERAGE ISSUES UNDER THE INDIAN SELF-DETERMINATION ACT
isdafin (HTML)
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.

POSSIBLE BASES OF JURISDICTION FOR THE DEPARTMENT OF JUSTICE TO INVESTIGATE MATTERS RELATING TO THE ASSASSINATION OF MARTIN LUTHER KING, JR.
mlkjurfnl (HTML)
mlkjurfnl (WPD) Size 15.2K

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.

APPLICATION OF THE DOUBLE JEOPARDY CLAUSE TO DISGORGEMENT ORDERS UNDER THE FEDERAL TRADE COMMISSION ACT
disgorgement (HTML)
disgorgement (WPD) Size 20.5K

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.

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.

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

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)
Recess.htm (HTML)
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
usdafinl (HTML)
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.

18 U.S.C. § 203 AND CONTINGENT INTERESTS IN EXPENSES RECOVERABLE IN LITIGATION AGAINST THE UNITED STATES
govservice98 (HTML)
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
fcra_dk (HTML)
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.

REAPPOINTMENT OF A RETIRED JUDGE TO THE COURT OF FEDERAL CLAIMS
wilson (HTML)
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.

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

FUNDS AVAILABLE FOR PAYMENT OF NATURAL RESOURCE DAMAGES UNDER THE OIL POLLUTION ACT OF 1990
opaop (HTML)
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.

AUTHORITY TO INVESTIGATE COMPLAINTS BY EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION ALLEGING REPRISAL FOR WHISTLEBLOWING
whistop (HTML)
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.

APPLICATION OF EMOLUMENTS CLAUSE TO REPRESENTATIVE MEMBERS OF ADVISORY COMMITTEES
emols.ac (HTML)
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.

DISCLOSURE OF GRAND JURY MATERIAL TO THE INTELLIGENCE COMMUNITY
gjicfinop1 (HTML)
gjicfinop1 (WPD) Size 103K

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
gsabc (HTML)
gsabc (WPD) Size 64K

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.

APPLICABILITY OF SECTION 514 OF THE 1997 EDUCATION APPROPRIATIONS ACT TO POST-SECONDARY STUDENT AID PROGRAMS
antirotcmem (HTML)
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.

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

AUTHORITY OF MILITARY EXCHANGES TO LEASE GENERAL PURPOSE OFFICE SPACE
naf1 (HTML)
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.

REMOVAL OF HOLDOVER OFFICIALS SERVING ON THE FEDERAL HOUSING BOARD AND THE RAILROAD RETIREMENT BOARD
removal (HTML)
removal (WPD) Size 68.9K

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.

ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AGAINST FEDERAL AGENCIES UNDER THE CLEAN AIR ACT
cleanair.op (HTML)
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.

FUNDING OF STATE DEPARTMENT SETTLEMENTS OF FOREIGN TORT CLAIMS
state3 (HTML)
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.

APPLICABILITY OF 18 U.S.C. § 208 TO THE FEDERAL COMMUNICATIONS COMMISSION'S REPRESENTATIVE ON THE BOARD OF
DIRECTORS OF THE TELECOMMUNICATIONS DEVELOPMENT FUND
18usc208 (HTML)
18usc208 (WPD) Size 63K

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.

NATIONAL ARCHIVES ACCESS TO TAXPAYER INFORMATION
coll (HTML)
coll (WPD) Size 14.1K

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.

SERVICE BY FEDERAL OFFICIALS ON THE BOARD OF DIRECTORS OF THE BANK FOR INTERNATIONAL SETTLEMENTS
fed208 (HTML)
fed208 (WPD) Size 20K

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..

IMMUNITY OF SMITHSONIAN INSTITUTION FROM STATE INSURANCE LAWS
smithsonop2 (HTML)
smithsonop2 (WPD) Size 12.4K

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.

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.

PERSONAL SATISFACTION OF IMMIGRATION AND NATIONALITY ACT OATH REQUIREMENT
oathrnd22 (HTML)
oathrnd22 (WPD) Size 53.7K

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.

CALCULATING RATE OF PAY OF DEPARTMENT OF JUSTICE EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION UNDER INDEPENDENT COUNSEL ACT
icpay (HTML)
icpay (WPD) Size 12.4K

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.

QUALIFICATION REQUIREMENT FOR ALIENS UNDER THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996
40Q9(Schultz) (HTML)
40Q9(Schultz) (WPD) Size 27.4K

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.

PREEMPTIVE EFFECT OF THE BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT
bressman(HTML)
bressman (WPD) Size 20K

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.

REVOCATION OF CITIZENSHIP
ina340 (HTML)
ina340 (WPD) Size 9.05K

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.

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
deportation_212c (HTML)
deportation_212c (WPD) Size 73K

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.

WAIVER OF OATH OF ALLEGIANCE FOR CANDIDATES FOR NATURALIZATION
oathlltr3 (HTML)
oathlltr3 (WPD) Size 9.05K

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.

DELEGATION OF THE PRESIDENT'S POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH LEADERSHIP COUNCIL
nolc.htm (HTML)
nolc.wpd (WPD) Size 58K

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
meanstst10 (HTML)
meanstst10 (WPD) Size 62.4K

BUREAU OF PRISONS DISCLOSURE OF RECORDED INMATE TELEPHONE CONVERSATIONS
prisons (HTML)
prisons (WPD) Size 59.6K

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.

APPLICATION OF THE INELIGIBILITY CLAUSE
inelbr2 (HTML)
inelbr2 (WPD) Size 6.51K

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
nuccio.op (HTML)
nuccio.op (WPD) Size 70K
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
treaty (HTML)
treaty (WPD) Size 96K

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
caprenat.ag (HTML)
caprenat.ag (WPD) Size 51K

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
pft90 (HTML)
pft90 (WPD) Size 59K

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
fbimem (HTML)
fbimem (WPD) Size 43K

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
sine (HTML)
sine (WPD) Size 67K

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
undec.let (HTML)
undec.let (WPD) Size 40K

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
dual.bd (HTML)
dual.bd (WPD) Size 17K

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
undercovop (HTML)
undercovop (WPD) Size 89.4K

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.

THE CONSTITUTIONALITY OF COOPERATIVE INTERNATIONAL LAW ENFORCEMENT ACTIVITIES UNDER THE EMOLUMENTS CLAUSE
retype5_13 (HTML)
retype5_13 (WPD) Size 35K

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
drugs.pot (HTML)
drugs.pot (WPD)Size 9K

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
arbitrls_faa (HTML)
arbitrls_faa (WPD) Size 59K

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
haitipot (HTML)
haitipot (WPD) Size 41.6K

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
sacredsites (HTML)
sacredsites (WPD) Size 61K

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
guam (HTML)
guam (WPD) Size 56K

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
hatchep2 (HTML)
hatchep2 (WPD) Size 5.3K

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.

FOURTH AMENDMENT ISSUES RAISED BY CHEMICAL WEAPONS INSPECTION REGIME
cwc_tes (HTML)
cwc_tes (WPD) Size 23K

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
crimfcc (HTML)
crimfcc (WPD) Size 88K

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
execpric (HTML)
execpric (WPD) Size 19.1K

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.

CONTRACTOR ACCESS TO INFORMATION FROM INTERSTATE IDENTIFICATION INDEX
IIIop_d2 (HTML)
IIIop_d2 (WPD) Size 75K

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
peterfinal (HTML)
peterfinal (WPD) Size 69.4K

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.

GOVERNMENT PRINTING OFFICE INVOLVEMENT IN EXECUTIVE BRANCH PRINTING
gporecn (HTML)
gporecn (WPD) Size 43K

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
barsh2 (HTML)
barsh2 (WPD) Size 46.9K

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.

PRESIDENTIAL CERTIFICATION REGARDING THE PROVISION OF DOCUMENTS TO THE HOUSE OF REPRESENTATIVES UNDER THE MEXICAN DEBT DISCLOSURE ACT OF 1995
cdraftfin (HTML)
cdraftfin (WPD) Size 149.1K

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.

CONSTITUTIONALITY OF LEGISLATIVE PROVISION REGARDING ABM TREATY
abmjq (HTML)
abmjq (WPD) Size 23.1K

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
fbijur_002 (HTML)
fbijur_002 (WPD) Size 58K

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
chadusda (HTML)
chadusda (WPD) Size 72K

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
printer (HTML)
printer (WPD) Size 108K

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
whto.pot.htm (HTML)
whto.pot.wpd (WPD) Size 13K

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
broadcub (HTML)
broadcub (WPD) Size 56K

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
olympics_op2 (HTML)
olympics_op2 (WPD) Size 72K

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
viet (HTML)
viet (WPD) Size 89K

LSU Law Center's

Medical and Public Health Law Site

ALL OPINIONS
MEMORANDA AND OPINIONS BY YEAR

LSU Law Center's

Medical and Public Health Law Site

ALL OPINIONS MEMORANDA AND OPINIONS BY YEAR

ALL OPINIONS
MEMORANDA AND OPINIONS BY YEAR