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Opinions of the Office of Legal Counsent - DOJ

U.S. Department of Justice

Office of Legal Counsel

1996 Memoranda & Opinions

Overview of Document

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

December 31, 1996

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

November 26, 1996

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

November 25, 1996

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

November 25, 1996

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

November 21, 1996

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

November 19, 1996

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

November 12, 1996

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

November 1, 1996

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

October 11, 1996

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

October 8, 1996

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

October 7, 1996

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

September 30, 1996

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

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

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

September 27, 1996

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

September 20, 1996

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

September 18, 1996

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

September 12, 1996

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

September 11, 1996

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

September 10, 1996

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

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

September 10, 1996

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

September 3, 1996

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

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

August 15, 1996

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

July 23, 1996

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

June 28, 1996

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

June 26, 1996

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

June 21, 1996

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

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

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

June 4, 1996

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

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

May 31, 1996

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

May 23, 1996

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

May 21, 1996

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

May 17, 1996

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

May 8, 1996

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

May 8, 1996

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

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

May 7, 1996

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

April 17, 1996

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

March 7, 1996

LEGAL AUTHORITY T

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

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

March 5, 1996

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

March 4, 1996

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

February 26, 1996

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

February 13, 1996

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

February 13, 1996

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

February 12, 1996

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

February 9, 1996

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

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

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

February 5, 1996

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

January 26, 1996

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

January 23, 1996

List of Years for Memoranda and Opinions