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Opinions of the Office of Legal Counsent - DOJ
U.S. Department of Justice
Office of Legal Counsel
1995 Memoranda & Opinions
Overview of Document
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.
LEGISLATION DENYING CITIZENSHIP AT BIRTH TO CERTAIN CHILDREN BORN
IN THE UNITED STATES A bill that would deny citizenship to children born in the United States
to certain classes of alien parents is unconstitutional on its face. 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 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
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
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 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 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 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
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 AUTHORITY TO EMPLOY THE SERVICES OF WHITE HOUSE OFFICE EMPLOYEES
DURING AN APPROPRIATIONS LAPSE 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 CONSTITUTIONALITY OF AWARDING HISTORIC PRESERVATION GRANTS TO
RELIGIOUS PROPERTIES 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
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 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 CONSTITUTIONAL LIMITATIONS ON FEDERAL GOVERNMENT PARTICIPATION
IN BINDING ARBITRATION 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. PEŅA This memorandum sets forth preliminary legal guidance on the implications
of the Supreme Court's decision in Adarand Constructors, Inc. v. Peņa, 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 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 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
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
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 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 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).
December 18, 1995
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A constitutional amendment to restrict birthright citizenship, although not
technically unlawful, would flatly contradict the Nation's constitutional history
and constitutional traditions.
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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
AUTHORITY OF FBI AGENTS, SERVING AS SPECIAL DEPUTY UNITED STATES
MARSHALS, TO PURSUE NON-FEDERAL FUGITIVES
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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