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

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

December 13, 1995

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

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

December 13, 1995

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

November 30, 1995

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

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

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

November 16, 1995

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

November 16, 1995

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

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

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

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

November 10, 1995

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

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

November 8, 1995

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

November 2,1995

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

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

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

September 13, 1995

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

October 31,, 1995

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

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

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

October 13, 1995

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

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

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

October 10, 1995

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

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

September 7, 1995

LEGAL GUIDANCE ON THE IMPLICATIONS OF THE SUPREME COURT'S DECISION IN ADARAND CONSTRUCTORS, INC. v. PEŅA
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This memorandum sets forth preliminary legal guidance on the implications of the Supreme Court's decision in Adarand Constructors, Inc. v. 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
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A full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien under 8 U.S.C. § 1251(a)(2)

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

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

June 19, 1995

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

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

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

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

June 7, 1995

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

May 22, 1995

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

May 16, 1995

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

May 12, 1995

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