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Status of the Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c) A former senior employee of the Securities and Exchange Commission communicating with the Commission on behalf of the Public Company Accounting Oversight Board during the year after his service as a senior employee at the Commission ends would not be communicating on behalf of the United States and therefore 18 U.S.C. § 207(c) would apply to bar such a communication. March 30, 2007 MEMORANDUM OPINION FOR THE GENERAL COUNSEL SECURITIES AND EXCHANGE COMMISSION Under 18 U.S.C. § 207(c) (2000), a former senior official of the Executive Branch, in the year after his departure, may not communicate with, or appear before, his former agency “on behalf of any other person (except the United States),” in connection with a matter on which he seeks official action. You have asked whether a former senior official of the Securities and Exchange Commission (“Commission”) communicating with the Commission on behalf of the Public Company Accounting Oversight Board (“Board”) during the year after his service at the Commission ends would be acting “on behalf of . . . the United States.” 1 We believe that former senior official would not be communicating on behalf of the United States and that the statute therefore would apply to bar such a communication. I. The Sarbanes-Oxley Act, 15 U.S.C. § 7211 (Supp. IV 2004), created the Board “to oversee the audit of public companies that are subject to the securities laws, and related matters,” id. § 7211(a). To carry out that responsibility, the Board, among other things, is “to register public accounting firms that prepare audit reports for issuers” under the Act, id. § 7211(c)(1); “establish or adopt . . . auditing, quality control, ethics, independence, and other standards relating to the preparation of audit reports,” id. § 7211(c)(2); “conduct inspections of registered public accounting firms,” id. § 7211(c)(3); “conduct investigations and disciplinary proceedings concerning, and impose appropriate sanctions where justified upon, registered public accounting firms and associated persons of such firms,” id. § 7211(c)(4); “perform such other duties or functions as the Board (or the 1 Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Brian G. Cartwright, General Counsel, Securities and Exchange Commission (Apr. 14, 2006) (“Commission Letter”). In accordance with the practice of our Office, the Commission has agreed to be bound by our opinion in this matter. Id. at 1. We do not address the status of the Board for any other purpose, including under any provision of the United States Constitution. See generally Status of National Veterans Business Development Corporation, 28 Op. O.L.C. 70, 72 (2004). 47 Opinions of the Office of Legal Counsel in Volume 31 Commission, by rule or order) determines are necessary or appropriate to promote high professional standards among, and improve the quality of audit services offered by, registered public accounting firms and associated persons thereof, or otherwise to carry out [the] Act,” id. § 7211(c)(5); and “enforce compliance with [the] Act, the rules of the Board, professional standards, and the securities laws relating to the preparation and issuance of audit reports and the obligations and liabilities of accountants with respect thereto, by registered public accounting firms and associated persons thereof,” id. § 7211(c)(6). The Commission exercises substantial “oversight and enforcement authority” over the Board. Id. § 7217(a). For example, after consultation with the Chairman of the Board of Governors of the Federal Reserve System and the Secretary of the Treasury, the Commission appoints all five members of the Board. Id. § 7211(e)(4). The Commission has the power to approve the Board’s rules of operation and administration, id. § 7211(g), and must approve (or modify) the Board’s rules for public accounting firms before they can take effect, id. § 7217(b). The Commission also may “enhance, modify, cancel, reduce, or require the remission of a sanction imposed by the Board upon a registered public accounting firm or associated person thereof.” Id. § 7217(c)(3). The statute nonetheless declares that the Board shall not be an agency or establishment of the United States Government . . . . No Member or person employed by, or agent for, the Board shall be deemed to be an officer or employee of or agent for the Federal Government by reason of such service. Id. § 7211(b). The present question concerns the status of the Board for purposes of 18 U.S.C. § 207(c). Under that provision, a former senior employee of an agency is criminally liable if within 1 year after the termination of his or her service or employment . . . [he or she] knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of the department or agency in which such person served within 1 year before such termination, on behalf of any other person (except the United States), in connection with any matter on which such person seeks official action by any officer or employee of such department or agency. (Emphasis added). 2 Because “[t]he nature of the close working relationship between the Commission and the [Board] necessitates frequent contact between 2 Section 207(c) identifies covered senior officials by reference to salary level or to the authority under which they have been appointed. 18 U.S.C. § 207(c)(2). Although the Commission Letter does 48 Status of the Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c) the Commission’s staff and [Board] members and staff,” Commission Letter at 4, if the Board is not considered “the United States” for purposes of section 207(c), a former senior Commission official “could not, as a practical matter, accept an appointment as a member of the [Board] or its senior staff,” id. II. Your question concerns former “Commissioners or staff members who leave the Commission to accept a position with the [Board]” and communicate with the Commission as part of their official functions. Commission Letter at 1, 3. We believe that such a former official would not communicate “on behalf of . . . the United States” under 18 U.S.C. § 207(c). A. We have previously concluded that communications “on behalf of” a person under section 207 “include only communications that are made by one who is acting as an agent or attorney, or in some other representational capacity for another.” Memorandum for Michael Boudin, Deputy Assistant Attorney General, Antitrust Division, from J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. § 207(a) to Pardon Recommendation Made by Former Prosecutor at 6 (Oct. 17, 1990) (“Pardon Recommendation”).A former senior official who works at the Board and communicates in his official capacity to the Commission would do so as the Board’s agent: “‘Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent of the other so to act.’” Id. (quoting Restatement of the Law (Second) of Agency § 1 (1958) (emphasis omitted)); accord Restatement of the Law (Third) of Agency § 1.01 (2006). The applicability of section 207(c) thus turns on whether, as an agent of the Board, a former employee of the Commission would act as an agent of “the United States.” The statute answers that question in the negative. The Sarbanes-Oxley Act provides that “[n]o member or person employed by, or agent for, the Board shall be deemed to be an officer or employee of or agent for the Federal Government by reason of such service.” 15 U.S.C. § 7211(b) (emphasis added). That provision, we believe, indicates that a person employed by or acting as agent for the Board is not acting “on behalf of . . . the United States” under section 207(c). Title 18 does not have a general definition of “the United States,” except “in a territorial sense,” 18 U.S.C. § 5 (2000), but section 207(c) itself suggests the meaning in the present context. Section 207(c) states that its not ask for us to address the lifetime ban under 18 U.S.C. § 207(a)(1) for specific-party matters in which a former officer or employee participated personally and substantially or the two-year ban for specific-party matters pending under the official responsibility of the former officer or employee, we note that both provisions also use the “on behalf of . . . the United States” language. 49 Opinions of the Office of Legal Counsel in Volume 31 restrictions apply to certain former “officer[s] or employee[s] of the executive branch of the United States.” The reference to the Executive Branch of “the United States” plainly is to the Executive Branch of the federal government. When the section later refers to a communication “on behalf of . . . the United States,” the “normal rule of statutory construction” would call for the conclusion that “identical words used in different parts of the same act are intended to have the same meaning,” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860 (1986), and this principle is especially compelling here because the identical words appear in the same sentence, see Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448 (2006). 3 See also 18 U.S.C. § 207(b) (provision restricting a former employee’s activities with respect to trade or treaty negotiations applies to a former employee “who personally and substantially participated in any ongoing trade or treaty negotiation on behalf of the United States within the 1-year period preceding the date on which his or her service or employment with the United States terminated”). Because a communication “on behalf of the United States” would thus have to be on behalf of the federal government, the statement that the Board’s personnel are not “agent[s] for the Federal Government” negates precisely that they act “on behalf of . . . the United States” within the meaning of the statute. The interests of the Board may well coincide with those of the United States. The Board is a creation of the United States government and is subject to the control of the Commission in significant respects. Nevertheless, section 207 can apply even when a former official is advocating the same position that is taken by his former agency. “‘[A] former employee does not act on behalf of the United States . . . merely because the United States may share the same objective as the person whom the former employee is representing.’” 18 U.S.C. § 207 and the Government of Guam, 20 Op. O.L.C. 326, 329 (1996) (quoting Office of Government Ethics, Summary of Post-Employment Restrictions of 18 U.S.C. Section 207, at 4 (Nov. 4, 1992)). Here, although the Board, the Commission, and more generally the United States may have the same interests, Congress has declared that the Board’s personnel are not “agent[s] for the Federal Government,” and, given this declaration, it does not matter if the Board’s personnel advance interests that match those of other entities of the federal government. The statute, in other words, distinguishes between the Board and the United States and treats Board personnel as speaking on behalf of the Board. 3 The covered persons are former officers and employees “of the executive branch of the United States,” 18 U.S.C. § 207(c), but communications by a former officer or employee are allowed if they are “on behalf of . . . the United States,” not just the Executive Branch, Office of Government Ethics, Summary of Post-Employment Restrictions of 18 U.S.C. § 207, Informal Advisory Mem. 04x11a, at 5 (July 29, 2004) (attachment to Office of Government Ethics, Summary of 18 U.S.C. § 207, Informal Advisory Mem. 04x11 (July 29, 2004)) (available at http://www.oge.gov/OGE-Advisories/LegalAdvisories/Legal-Advisories/, last visited Aug. 12, 2014) (“2004 Summary”) (communications on behalf of Congress are permitted). This difference does not affect the meaning of “the United States,” which in both cases refers to the federal government. 50 Status of the Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c) B. The conclusion that communications on behalf of the Board are not “on behalf of . . . the United States” is consistent with an earlier opinion of our Office, Applicability of 18 U.S.C. § 207(a) to the Union Station Development Corporation, 12 Op. O.L.C. 84 (1988) (“Union Station”). There, we stated that we have “looked to the definition of ‘agency of the United States’ in 18 U.S.C. § 6 to determine if an entity should be regarded as the United States for the purposes of the conflict of interest laws.” Id. at 84. We have some doubt that this characterization is entirely correct; the opinions cited in Union Station may be read to interpret the term “agency” or “agency of the United States,” not “United States” itself. Nevertheless, even if that line of opinions is applicable, it is consistent with the conclusion we reach here. Section 6 states that [t]he term ‘agency’ includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. 18 U.S.C. § 6. We have read section 6 as “establish[ing] a presumption that a governmental entity is an agency for purposes of a given offense, including the conflict of interest statutes.” Application of 18 U.S.C. § 205 to Union Organizing Activities of Department of Justice Employee, 5 Op. O.L.C. 194, 195 (1981) (“Organizing Activities”). Here, however, the statute conclusively rebuts that presumption. Section 7211 states explicitly that the Board “shall not be an agency or establishment of the United States Government.” 15 U.S.C. § 7211(b). In Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), the Supreme Court concluded that a statute providing that Amtrak “‘will not be an agency or instrumentality of the United States Government,’” id. at 391 (quoting 84 Stat. 1330 (1970)), was “assuredly dispositive of Amtrak’s status as a Government entity for purposes of matters that are within Congress’s control.” Id. at 392. Similarly, Congress’s declaration that the Board is not “an agency or establishment of the United States Government” is dispositive of its status as an agency under the conflict of interest laws. When a statute has not expressly addressed whether an entity is an agency or establishment of the United States, we sometimes have examined such factors as the entity’s “functions, financing, control, and management.” Union Station, 12 Op. O.L.C. at 86. 4 But the use of a multi-factor test is not appropriate where, as 4 A 1948 letter of the Attorney General concluded that the Panama Railroad Company was an agency of the United States for purposes of the conflict of interest laws, Letter for the Secretary of the Army, from Tom C. Clark, Attorney General (Dec. 2, 1948), but the statute in that case provided that the company was “an agency or instrumentality of the United States,” Pub. L. No. 80-807, 62 Stat. 51 Opinions of the Office of Legal Counsel in Volume 31 here, Congress has explicitly determined that an entity is not an agency of the United States for purposes within Congress’s control. The conclusion that the Board is not “the United States,” we believe, squares with the Sarbanes-Oxley Act’s own post-employment provision. Under 15 U.S.C. § 7211(g)(3), the Board is to establish ethics rules and standards of conduct for Board members and staff, including a bar on practice before the Board (and the Commission, with respect to Board-related matters) of 1 year for former members of the Board, and appropriate periods (not to exceed 1 year) for former staff of the Board. This provision does put the Board into a position similar to that of an agency of the federal government, but this treatment is entirely consistent with the view that the Board is not a federal agency for purposes of the general conflict of interest laws, including 18 U.S.C. § 207(c), and thus requires its own conflict of interest provision. And although the provision, by limiting the practice before the Commission by former Board members and staff, might be read to suggest that, for conflict of interest purposes, the Board should be equated with the Commission, the bar on practice before the Commission also could reflect a concern that confidential information involving regulated entities might give former Board members and staff an unfair advantage. Cf. Bayless Manning, Federal Conflict of 1075, 1076 (1948). In 1963, we found that the Federal National Mortgage Association (“Fannie Mae”) was an agency of the United States under 18 U.S.C. § 431 (1958). See Memorandum for Joseph F. Dolan, Assistant Deputy Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 18, 1963) (“Fannie Mae”). In that instance, the statute made Fannie Mae “a constituent agency of the Housing and Home Finance Agency,” 12 U.S.C. § 1717 (1958), and Fannie Mae’s obligations were not obligations of the United States or “of any agency or instrumentality thereof other than [Fannie Mae],” id. §§ 1719(b), 1721(b) (emphasis added); the “other than” language suggested that Fannie Mae itself was an agency or instrumentality of the government. Although we did not refer to these provisions, we noted that the Housing and Home Finance Administrator was the Chairman of Fannie Mae’s Board. Fannie Mae at 6, 8. In Organizing Activities, we determined that the Office of the Architect of the Capitol was an “agency.” Noting that the definition in 18 U.S.C. § 6 “in effect, establishes a presumption that a governmental entity is an agency for purposes of a given offense, including the conflict of interest statutes,” we did not then identify anything that might have rebutted that presumption. 5 Op. O.L.C. at 195. In Union Station, the corporation whose status was in question was “simply the vehicle created by that Department to accomplish [a] congressional mandate” imposed upon the Department of Transportation under 40 U.S.C. §§ 801–819 (1988), and the statute was silent on the status (indeed on the existence) of that corporation. 12 Op. O.L.C. at 86; see also Applicability of 18 U.S.C. § 207 to the General Accounting Office, 3 Op. O.L.C. 433 (1979) (concluding that section 207 applies to former employees of the General Accounting Office, which, under the then-applicable statute, was an “establishment of the Government”). Similarly, we concluded that the National Veterans Business Development Corporation was an “agency” under 31 U.S.C. § 9102. The statute creating that entity had “no . . . express disclaimer” of its status as an agency. National Veterans Business Development Corporation, 28 Op. O.L.C. at 72. 52 Status of the Public Company Accounting Oversight Board Under 18 U.S.C. § 207(c) Interest Law 179 (1964) (stating that concern about misuse of inside information is one reason for federal post-employment restrictions). 5 Concededly, as a matter of policy, it may make little sense to treat the Board as outside the government for purposes of the conflict of interest laws. As the Commission Letter points out, this understanding of section 207(c) has the effect of excluding from appointment to the Board a “uniquely qualified pool of candidates”—recently departed former high-level officials of the Commission. Commission Letter at 4. Given the “unique statutory relationship between the [Board] and the Commission,” there may be a strong policy argument that, for purposes of the conflict of interest laws, the Board should be treated as an agency of the government. On the other hand, the Board in several respects is similar to self-regulatory organizations like the National Association of Securities Dealers (“NASD”), “a private body empowered by the Commission to oversee the activities of broker-dealers.” United States v. Frith, 461 F.3d 914, 916 (7th Cir. 2006). Although the Commission’s authority to oversee the Board is even greater than its authority to oversee the NASD, the Sarbanes-Oxley Act declares that several provisions of the securities laws relating to the Commission’s oversight powers “shall apply to the Board as fully as if the Board were a ‘registered securities association.’” 15 U.S.C. § 7217(a), (b)(4), (b)(5), (c)(2). The statute, to this extent, treats the Board like the private NASD, which we understand is the only “registered securities association.” Congress may have wished to treat the Board as private for all statutory purposes, and section 7211(b) indicates that this is what Congress chose to do. The unequivocal declaration that “[n]o member or person employed by, or agent for, the Board shall be deemed to be an officer or employee of or agent for the Federal Government by reason of such service” and that the Board “shall not be an agency or establishment of the United States Government,” 15 U.S.C. § 7211(b), determines our answer. STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel 5 Moreover, if the Board were an agency of the United States, a highly paid official of the Board who left the government would be subject to the one-year cooling-off period under section 207(c), and practice before the Board by such a former official in the year after his or her departure would violate the criminal provision. The administrative rule, at least to this extent, would then seem superfluous. See 2004 Summary, supra note 3, at 8. 53

Write a legal research memo on the following topic.

Constitutionality of the Qui Tam Provisions of the False Claims Act Qui tam suits brought by private parties to enforce the claims of the United States violate the Appointments Clause of the Constitution because qui tam relators are “Officers of the United States” but are not appointed in accordance with the requirements of the Appointments Clause. Private qui tam actions violate the doctrine of Article III standing because the relator has suffered no personal “injury in fact.” The qui tam provisions of the False Claims Act violate the separation of powers doctrine because they impermissibly infringe on two aspects of the President’s authority to exe­ cute the laws: the discretion whether to prosecute a claim and the authority to control the conduct of litigation brought to enforce the Government’s interests. Given qui tam’s clear conflict with constitutional principles, any argument to sustain the qui tam provisions based upon historical practice must fail. July 18, 1989 M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l * I. OVERVIEW AND SUMMARY A. The Issue The issue presented here is whether the so-called “qui tam” provisions o f the False Claims Act, 31 U.S.C. §§ 3729-3733 ( “Act”), are constitution­ al. This may well be the most important separation o f powers question you will have to address as Attorney General. In these qui tam provisions, Congress purports to authorize any person to prosecute — on behalf o f the United States and in the name o f the United States — a civil fraud for treble damages and penalties against any person who allegedly makes a false claim to the U.S. government. Unlike normal citizen suits, the qui tam plaintiff — or so-called “relator” — is ^ E d ito r’s N o te : This memorandum was not intended to present the official position o f the Department o f Justice at the time o f its writing, but rather was intended to contribute to a discussion within the Department over what position should be adopted The views on the Appointments Clause expressed in the memorandum have been superseded by a subsequent O ffice o f Legal Counsel memorandum. See Memorandum fo r the General Counsels o f the Federal Government from Walter Dellinger, Assistant Attorney General, Office o f Legal Counsel, Re. The Constitutional Separation o f Poivers between the President and Congress 20-21 n 53 (May 7, 1996) (to be published) 1 207 empowered to sue, on the government’s behalf, even if he has not sus­ tained any personal injury as a result o f the wrongdoer’s alleged miscon­ duct. As a bounty for prosecuting the fraud, the relator receives up to thirty percent o f any damages and penalties recovered, with the balance paid into the U.S. Treasury. The relator is empowered to prosecute the government’s claim even when the Attorney General has determined that there is no valid claim or that pursuing the suit is not in the interests o f the United States. Through qui tam, Congress has attempted to create universal standing to prosecute purely public offenses. These qui tam suits pose a devastat­ ing threat to the Executive’s constitutional authority and to the doctrine o f separation o f powers. If qui tam suits are upheld, it would mean Congress will have carte blanche to divest the executive branch o f its constitutional authority to enforce the laws and vest that authority in its own corps o f private bounty hunters. Simply by attaching a penalty to the violation o f any law and by offering a bounty to any person who sues, Congress effectively could “privatize” all civil law enforcement. Indeed, through this device, Congress has authorized each o f its own members (as any “person”) to enforce the laws directly. In several qui tam suits currently pending in federal district court, defendant contractors have moved to dismiss, contending that the qui tam mechanism is unconstitutional. Several courts have asked the Department o f Justice to express a position. The Office o f Legal Counsel, the Civil Division, and the former Office o f Legal Policy all agree that the qui tam provisions in the False Claims Act are unconstitutional. We believe they violate the Appointments Clause, infringe on the President’s core Article II authority to execute the law, and violate Article III stand­ ing doctrine. The Civil Division would like to enter an appropriate case and, either as amicus or by intervention, present the executive branch’s arguments against the constitutionality o f qui tam. The Solicitor General argues that we should intervene in district court to support the constitu­ tionality o f qui tam. B. Background The use o f qui tam suits arose in fourteenth century England as an aid to government’s primitive law enforcement capabilities. These statutes authorized private “informers” to bring criminal prosecutions for viola­ tion o f certain penal laws. Upon conviction of the wrongdoer, the private prosecutor was given a share o f the penalty as a reward. While some statutes permitted prosecution only by a person who had suffered injury, other statutes authorized “any person,” regardless o f ir\jury, to prosecute a wrongdoer in the name o f the sovereign for violation o f a penal law. Initially, these informer actions were brought by criminal indictment or information, but eventually informers could opt to bring their suits as 208 either a criminal or civil action. This experiment with private law enforcement had an unhappy history o f abuse. Qui tam suits fell into dis­ favor and, from the sixteenth century forward, their use was progres­ sively curtailed. In the United States, during the emergency o f the Civil War, Congress resorted to this archaic device in response to widespread contractor fraud. The False Claims Act o f 1863, 12 Stat. 696, authorized any person to prosecute, in the name o f the United States, a civil action against a con­ tractor for alleged fraud against the United States. As a reward, the rela­ tor received a share o f any recovery. After the Civil War, this qui tam statute fell into relative desuetude. By 1986, except for a flurry o f activi­ ty during World War II, it had become an anachronism. In 1986, Congress, dissatisfied with the way the executive branch was enforcing government procurement laws, sought to breathe new life into this dormant device. To stimulate private enforcement suits, Congress amended the False Claims Act to provide for treble damages and penal­ ties o f up to $10,000 for each false claim, and to provide for a bounty to the relator o f up to thirty percent o f any recovery (the “ 1986 Amend­ ments”). The congressional proponents o f these amendments made no pretense about the fact that they distrusted the executive’s willingness or ability to enforce the law properly, and they stated that their purpose was to “deputize” private citizens to ensure effective law enforcement. In the two years since enactment o f the 1986 Amendments, there has been a massive upsurge in qui tam actions — over 150 suits have been filed. These actions have disrupted the civil and criminal enforcement activities o f the Department. See Memorandum for the Solicitor General, from Stuart E. Schiffer, Acting Assistant Attorney General, Civil Division (June 15, 1989). They have also undermined the executive’s ability to administer complex procurement contracts and, in some cases, have caused serious national security concerns. The 1986 Amendments have also spawned the formation o f full-time “bounty hunting” groups — ersatz departments o f justice — that go about prosecuting civil fraud actions in the name o f the United States. C. Qui Tam’s Unconstitutionality The Office o f Legal Counsel believes that the qui tam provisions o f the False Claims Act are patently unconstitutional. In our view, this is not even a close question. Our conclusion rests on three grounds. First, we believe that private qui tam actions violate the Appointments Clause o f the Constitution. Art. II, § 2, cl. 2. The Supreme Court has repeatedly held that conducting litigation on behalf o f the United States to enforce the rights o f the United States must be carried out by an exec­ utive branch official or other properly appointed government officer. The Constitution thus does not permit Congress to vest governmental law 209 enforcement authority in self-selected private parties, who have not been it\jured and who act from mercenary motives, without commitment to the United States’ interests and without accountability. Second, we believe qui tam suits violate Article III standing doctrine. The Supreme Court has repeatedly held that under Article III, a plaintiff is ineligible to invoke federal judicial power unless he can demonstrate that he has suffered “ir\jury in fact” as a result o f the defendant’s alleged­ ly illegal conduct. Qui tam relators suffer no ii\jury in fact and thus fail to meet this bedrock constitutional requirement. Because Congress may not abrogate this requirement, the False Claims Act’s grant o f universal standing to any person violates Article III. Third, we believe that qui tam actions violate the doctrine o f separation o f powers. The Supreme Court has consistently ruled that the authority to enforce the laws is a core power vested in the Executive. The False Claims Act effectively strips this power away from the Executive and vests it in private individuals, depriving the Executive o f sufficient super­ vision and control over the exercise o f these sovereign powers. The Act thus impermissibly infringes on the President’s authority to ensure faith­ ful execution o f the laws. Until now, no federal court has ever considered or addressed the con­ stitutionality o f qui tam actions. Nor, to our knowledge, has any Attorney General ever conceded the constitutionality o f the device. Indeed, in 1943, Attorney General Biddle called for its repeal. He contended that it was the duty o f the Department o f Justice to enforce the laws and that qui tam suits interfered with that responsibility. During these debates in 1943, a leading Senate proponent o f qui tam complained: [T]he Congress enacted that statute in 1863. I ask any Senator to name one case, from 1863 until 1942, in which the Attorney General o f the United States tried to enforce the statute. From the day the statute went on the statute books to the present, the Attorneys General, whether Democrats or Republicans, fought it. 89 Cong. Rec. 10,697 (1943) (emphasis added). D. Reasons fo r Opposing Q u i Tam In my view, the Department o f Justice has an obligation to the President and to the Constitution to .resist this encroachment on executive power. Consequently, I recommend that the Civil Division be permitted to present the executive branch’s arguments against the constitutionality o f the qui tam device. I submit that three considerations dictate this course. First, qui tam poses a potentially devastating threat to the President’s constitutional authority. If qui tam is upheld, there would be nothing to 210 prevent Congress from using the device to eviscerate all o f the executive branch’s civil law enforcement authority. We can expect to see the inex­ orable extension o f qui tam into such areas as securities fraud, savings and loan fraud, and civil rights. Once the facial constitutionality o f the device is conceded, there is no principled basis for limiting its future use. As Justice Scalia noted with regard to the independent counsel statute: Frequently an issue o f this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential o f the asserted principle to effect important change in the equilibrium o f power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). The rationale for the special prosecutor statute at least can be restricted to narrow circumstances. Qui tam is far more dangerous: there is simply no way to cage this beast. Not only would qui tam work a sea change in the balance o f power between the Congress and the Executive, but it would, in my view, under­ mine the liberties o f the American people — which is what the doctrine o f separation o f powers ultimately is designed to safeguard. One o f the central tenets o f the Framers was that the power to execute the law must be kept in hands that are both independent o f the legislature and politi­ cally accountable to the people. This enforcement structure was designed to protect the people from the improvident or tyrannical enforcement o f the laws. Qui tam allows Congress to circumvent the Executive’s check and to have its laws enforced directly by its own pri­ vate bounty hunters. This destroys the longstanding principle that all three branches must concur before the sovereign may exact public penal­ ties from an individual. The second consideration that dictates opposing the constitutionality o f qui tam is the very force o f the arguments against it. Taken together — or taken alone — the three constitutional objections against qui tam are formidable. Indeed, as a matter o f principle, they are irresistible. They are by no means extreme arguments. On the contrary, they are — as the Solicitor General would acknowledge — well within the mainstream and firmly rooted in the consistent rulings o f the Supreme Court. To date, the Supreme Court has been unyielding in its insistence both upon “injury in fact” as the essential requirement o f standing and upon strict compliance with the Appointments Clause whenever significant governmental authority is vested in an individual. But even if it were a close question — and I do not think that it is — it is not our job, when the President’s core constitutional powers are at stake, to “decide” these cases as if we were an Article III judge. We are 211 the Executive’s only advocates, and when the President’s core powers are at stake, the Executive’s case is so compelling, and the practical conse­ quences o f defeat so grave, w e have a duty to advance the President’s cause. Indeed, the Framers expected that a “great security” against the gradual erosion o f the separation o f powers was precisely the willingness and disposition o f each branch’s officers to resist the encroachments o f the others: “Ambition must be made to counteract ambition.” The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed. 1961). The third consideration that dictates opposing qui tam relates to the posture o f these cases. Because o f the unusual way these cases arise, we have nothing to lose by challenging the constitutionality o f qui tam. The Department o f Justice is not a formal party to these cases. Private defen­ dants, ably represented, have directly challenged the constitutionality o f the qui tam provisions. The U.S. Senate has filed amicus briefs in support o f qui tam. The fundamental powers o f the President are thus being decided in our absence. This is not a case in which we have the freedom to pick where or when to fight. This litigation will proceed with or with­ out us and will undoubtedly end up in the Supreme Court. As Madison noted, because o f the breadth o f the constitutional powers o f the legislative branch, that branch easily can “mask under complicat­ ed and indirect measures, the encroachments which it makes on the co­ ordinate departments.” The Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed. 1961). Madison therefore found it often to be a “ques­ tion o f real-nicety” whether a particular measure would extend beyond the legislature’s sphere. Id. Despite the difficulties perceived by the Solicitor General, no such “question o f real-nicety” is involved here. If we fail to object to qui tam, it almost certainly will be upheld. If we enter the case and vigorously contest qui tarn’s constitutionality, we stand a good chance o f winning or, at least, obtaining a decision that restricts qui tam. Thus, this is a case in which w e will be in no worse position if we go in and lose than we are in right now. In short, there is no “downside” here, and this is precisely the kind o f case where we should be aggressively resisting encroachment. E. The Solicitor General’s Position The Solicitor General admits that qui tam poses “grave dangers” to the Presidency. See Memorandum for the Solicitor General, from Richard G. Taranto, Assistant to the Solicitor General at 3, 10-11 (June 26, 1989) ( “Taranto Memo”). He appears to perceive the issue o f qui tarn’s constitu­ tionality as a “close” one. See id. at 3. Nevertheless, he is recommending that the Department intervene in district court to support the facial con­ stitutionality o f the qui tam statute. The Solicitor General’s position would require the surrender at the outset o f the two strongest arguments against qui tam — the Appointments Clause and Article III standing arguments. 212 The Solicitor General assures us, however, that he will reserve the right to use a separation o f powers balancing test to defend against encroachment if qui tam is unconstitutionally applied in the future. Id. at 12-14. To uphold qui tam, the Solicitor General is prepared to disregard decades o f clear Supreme Court jurisprudence and the application o f wellsettled constitutional principles. His sole reason for embracing qui tam is its historical usage. Id. at 4-5. This argument — that past usage alone is enough to establish a practice’s constitutionality — is untenable both as a matter o f history and o f law. Moreover, the Solicitor General’s proposed strategy o f preemptive concession makes no sense as a litigation tactic. The Solicitor General vastly overstates the historical acceptance o f qui tam. Prior to passage o f the False Claims Act, the only significant use o f qui tam occurred in the Federalist period, during which time it appears that perhaps six statutes were enacted that may have authorized penalty actions by private persons. These statutes involved relatively arcane areas; one set fines for illegally trading with the Indians, another set fines for misconduct by census-takers. The record, however, is most unclear as to whether these statutes reflected any appreciable acceptance o f qui tam actions by persons who had sustained no injury. It appears from actu­ al practice that with very few exceptions, suits under these statutes were brought either by government officials (for whom the moiety was com­ pensation) or by persons who had suffered injury in fact. There is little evidence that the long-accepted historical practice on which the Solicitor General relies ever existed. It is easy to understand why qui tam has been so marginal a practice in the history o f federal law. Adopted when the Executive was embryonic, the early qui tam statutes were essentially stop-gap measures, confined to narrow circumstances in which the government lacked the institutions to enforce the law. The intent o f those statutes was to assist a fledgling executive, not supplant it. As the Executive’s law enforcement capabili­ ties gathered strength, qui tam rapidly fell into disuse. A fair reading o f the history o f qui tam in the United States reveals it as a transitory and aberrational device that never gained a secure foothold within our con­ stitutional structure because o f its fundamental incompatibility with that stmcture. Moreover, even strong historical support for qui tam could not cure the practice’s constitutional -infirmities. No Supreme Court case has ever given history the kind o f dispositive weight that the Solicitor General would here. On the contrary, the Supreme Court has repeatedly stated that history alone can never validate a practice that is contrary to consti­ tutional principle, even when the practice “covers our entire national existence and indeed predates it.” Walz v. Taac Commission, 397 U.S. 664, 678 (1970). Accord Marsh v. Chambers, 463 U.S. 783, 790 (1983). There are numerous examples o f statutes passed by the early congresses that have been held unconstitutional or clearly would be held unconstitution­ 213 al today. See infra p. 233. Thus, if a past practice cannot be reconciled with constitutional principle, an appeal to history alone cannot sustain it. In the case o f qui tam, absent the invocation o f history there is no ques­ tion about the practice’s unconstitutionality. Although history alone cannot validate a plainly unconstitutional prac­ tice, the Supreme Court has indicated that close cases will be resolved in favor o f the constitutionality o f certain strong historical traditions. The Court weighs several factors in determining the authority o f a tradition, including (1) whether there is evidence that the Framers actually consid­ ered the constitutional implications o f their actions; (2) whether the prac­ tice is so longstanding and pervasive that it has become “part o f the fab­ ric o f our society;” and (3) whether the practice can be accommodated within the constitutional framework in a way that does not undermine settled principles. See, e.g., Young v. United States ex rel. Vuitton et Fils, 487 U.S. 787 (1987); Marsh v. Chambers-, Walz v. Tax Commission. Qui tam would deserve no deference under these criteria. There is no evidence that the Framers considered the constitutional status o f qui tam. On the contrary, the early statutes are the kind to which the Court gives no weight — “action ... taken thoughtlessly, by force o f long tradi­ tion and without regard to the problems posed.” Marsh v. Chambers, 463 U.S. at 791. Nor can it seriously be maintained that qui tam is “part o f the fabric o f our society.” Never more than a marginal device, it is today an anachronism that easily can be excised without disruption. Qui tarn’s principle o f private law enforcement, however, is so fundamentally incompatible with established doctrines o f standing and separation of powers that, if accepted, it would substantially undermine these doc­ trines. Thus, qui tam is not merely an innocuous historical oddity that can be narrowly accommodated, but is, by nature, an exception that will con­ sume the rule. Further, the Solicitor General’s use o f history is internally inconsistent. None o f the old qui tam statutes upon which the Solicitor General relies allowed the Attorney General to intervene once the relator brought the case. However, the Solicitor General concludes that the current statute will be unconstitutional if it is applied to limit the Attorney General’s par­ ticipation in the suit. It is difficult to understand how the Solicitor General can give dispositive historical weight to statutes that would be unconstitutional under his theory for arguing qui tarn’s validity. Finally, as a tactical matter, the Solicitor General’s strategy of preemp­ tive concession is extremely unwise. It voluntarily surrenders at the out­ set the two strongest objective arguments against qui tam. Once those are abandoned, all that will remain to protect the President’s interests will be a subjective balancing approach and the argument that at some unde­ fined point the degree of encroachment will become unbearable. This approach leaves executive powers entirely vulnerable to an adverse judi­ cial decision. 214 II. THE STATUTE AND ITS IMPACT A. The Statute The False Claims Act provides that anyone who presents a false money claim to the Federal Government shall be liable for double or treble dam­ ages and civil penalties o f up to $10,000 per false claim. 31 U.S.C. § 3729. Under the qui tam provisions of the Act, any person may bring a civil action “for the person and for the United States Government” to recover damages and penalties. Id. § 3730(b)(1). The qui tam action, although ini­ tiated by a private person called a relator, is “brought in the name o f the Government.” Id. The details o f the qui tam mechanism demonstrate that the real party in interest is the United States, with the relator functioning as attorney for the United States. When a private person brings a qui tam action, he must serve on the Government the complaint and a written disclosure o f the information he possesses. Id. § 3730(b)(2). The Attorney General is then forced to decide, within 60 days, whether to “intervene and proceed with the action.” Id. By the end o f that period, the Attorney General must inform the court whether the government shall proceed; if not, “the per­ son bringing the action shall have the right to conduct the action.” Id. § 3730(b)(4)(B). Where the Attorney General decides not to proceed with the case, the relator alone represents the government. He has full control over the lit­ igation, including discovery, admissions, and presentation o f evidence, subject only to a few specific limitations.1If the relator prevails, most o f the recovery is paid into the Treasury, with the relator keeping between twenty-five and thrity percent as his reward. Id. § 3730(d)(2). The relator is also entitled to attorneys’ fees. Id. If the Attorney General initially declines to proceed with the case, he may intervene later only upon a showing of “good cause,” but such inter­ vention does not limit “the status and rights o f the person initiating the action.” Id. § 3730(c)(3). Thus, the relator retains primary control over the case despite the government’s intervention. Moreover, the legislative history to the 1986 Amendments expressly states that any judgment or settlement in a case conducted exclusively by the relator binds the Government under principles o f preclusion. S. Rep. No. 345, 99th Cong., 1 A qui tam action may be dismissed only if the court and the Attorney General give written consent. 31 U.S.C. § 3730(b)(1) If ihe Government shows that discovery by the relator would interfere with ongo­ ing civil or criminal investigations or prosecutions, the court may stay discovery for a penod not to exceed 60 days The court may impose further stays if the Attorney General shows “that the Government has pursued the cnminal or civil investigation or proceedings with reasonable diligence and any pro­ posed discovery in the Iqui tamj action will interfere with the ongoing cnminal or civil investigation or proceedings ” Id § 3730(c)(4). The relator is under no general constraint to pursue Department o f Justice litigation policies or procedures. 215 2d Sess. 27 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5292. This stands to reason: since the relator’s action is in the name of the United States, the relator seeks a share o f damages inflicted on the United States, and any recovery (minus the relator’s moiety) is paid into the Treasury. In cases in which the Attorney General does enter within the initial sixty-day period, the government has “primary responsibility for prose­ cuting the action.” 31 U.S.C. § 3730(c)(1). The relator nevertheless has “the right to continue as a party to the action.” Id. This participation right gives the relator a substantial role in the litigation. The relator has the right to a hearing if the Attorney General decides to dismiss the action. Id. § 3730(c)(2)(A). If the Attorney General proposes to settle the case but the relator objects, the settlement may go forward only if “the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” Id. § 3730(c)(2)(B). In addi­ tion, the relator participates fully at trial, calling witnesses, cross-examining witnesses, and testifying, except that on the government’s motion “the court may, in its discretion, impose limitations on the [relator’s] par­ ticipation.” Id. § 3730(c)(2)(C). In cases primarily conducted by the Attorney General, the relator receives between 15 and 25 percent o f the proceeds, plus reasonable expenses (including attorneys’ fees), as determined by the court. Id. § 3730(d)(1). Moreover, if the Government decides to pursue its claim in some forum other than a False Claims Act suit — such as an administra­ tive penalty action — the relator has the same rights in that proceeding that he would have in court. Id. § 3730(c)(5). In short, where the Government decides not to join, the relator con­ ducts the suit as if he were the Attorney General, except that unlike the Attorney General he takes no oath o f office, he bears no loyalty to the Government or continuing responsibility for implementing its policies, and he receives up to thirty percent o f the suit’s proceeds. If the Government enters the suit, the relator continues to represent the United States, subject to the court’s (not the Attorney General’s) control. This arrangement carries out the purpose that underlay the 1986 Amendments. Congress’s “overall intent in amending the qui tam section o f the False Claims Act is to encourage more private enforcement suits.” S. Rep. No. 345 at 23-24. In order to do that, Congress decided to “depu­ tize ready and able people ... to play an active and constructive role through their counsel to bring to justice those contractors who over­ charge the government.” 132 Cong. Rec. 29,322 (1986). B. The Statute’s Impact The heart o f the statute’s impact derives from the fact that the qui tam provisions interfere with the Attorney General’s discretion whether to ini­ tiate a suit under the False Claims Act. That interference adversely 216 affects both the Government’s law enforcement powers and its contract­ ing powers. 1. The Government’s Enforcement Role a. The decision to initiate litigation. First and most obviously, the qui tam mechanism removes from the Department’s hands the decision whether and when to commence an action. Once a relator files his com­ plaint, we have 60 days within which to decide whether to join. This is true even if we are pursuing an investigation that is far from ready for decision whether to prosecute.2 In several cases, district courts already have refused to grant us extensions in order to avoid interference with ongoing criminal investigations. See, e.g., United States ex rel. McCoy v. California Medical Review Inc., 723 F. Supp. 1363 (N.D. Cal. 1989).3 If a stay is unavailable, the civil case proceeds with or without us, sometimes alerting targets o f criminal investigations; sometimes resulting in disclo­ sure of key information in our possession, including our litigating posi­ tions; and sometimes complicating attempts to prepare a comprehensive plea arrangement and civil settlement. In addition, informal avenues o f redress and adjustment can be cut off. Instead, the Government may be forced to choose quickly between leaving the suit wholly to the relator or taking the very serious step o f charging fraud against a private person.4 Such a charge is a serious matter, whether brought by the Department or a relator. In many cases prosecutorial discre­ tion would counsel against our bringing a False Claims Act suit; for exam­ ple, we might find that although a contractor was technically liable, it has fired the employees responsible for the fraud. A relator, however, is inter­ ested only in money, not in the faithful execution o f the laws. He has taken no oath o f office, has no obligation of loyalty to the Government or its inter­ ests, and has no continuing responsibility for the governmental programs at issue. Rather, he holds a personal financial stake that in all other contexts would disqualify him from representing the Government’s interests. United States ex rel. Hyatt v. Northrop Corp., No. CV 87-6892 KN (Jrx), 1989 U.S. Dist. LEXIS 18940 (C.D. Cal. Dec. 27, 1989), provides an 2 Contrary to our experience, the Senate Committee believed that “with the vast majority o f cases, 60 days is an adequate amount o f time to allow Government coordination, review and decision" o f fraud actions running into millions or billions o f dollars. S Rep No. 345 at 24-25. 3 This accords with the legislative history, which states that “the Committee does not intend that crim­ inal investigations be considered an automatic bar to proceeding with a civil fraud suit." S. Rep N o 345 at 25. Instead, the Senate Committee stated that if the Government obtains an initial stay, “the court should carefully scrutinize any additional Government requests for extensions by evaluating the Government’s progress with its cnminal inquiry” Id 4 In some circumstances, w e may be considering enforcement action less draconian than a trebledamages-plus-penalties action under the False Claims Act. Once a relator has ensured that there will be a treble-damages action, however, we may be forced either to scrap a single-damage suit or attempt to handle it in coryunction with the other. 217 example o f a case in which the qui tam provisions have allowed a relator to force a suit that this Department would not have pursued. In that case, eight employees are suing Northrop for alleged fraud in the manufacture o f inertial measurement units ( “IMUs”) for the MX (Peacekeeper) Missile. They seek restitution o f $1 billion, $250 million in compensatory dam­ ages, and $5 million in punitive damages. Two o f the eight relators had filed an earlier qui tam action against Northrop that was dismissed because the information on which it was based was already in the Government’s possession. The pending suit makes numerous allegations o f fraud, including that Northrop knowingly delivered defective IMUs to the Air Force, that it failed to test or inspect all components properly, and that it misrepresented the performance o f operation audits and respon­ sive corrective action. In fact, the Civil Division’s memorandum review­ ing the relators’ suit notes that the complaint is so broad that it encom­ passes nearly every action undertaken by Northrop in the course o f the manufacture and delivery o f the IMUs.5 The Civil Division declined to enter the relators’ action because extensive investigations o f Northrop’s operations by the U.S. Attorney and the Air Force failed to produce evi­ dence o f fraud. See Civil Division Memo at 8-15. Moreover, the Air Force’s records show that the actual performance o f the allegedly defective IMUs has far exceeded expectations, thus rebutting the relators’ claims o f fraud. See id. at 12. Nevertheless, the relators are permitted by the qui tam provisions to continue to pursue their suit on behalf o f the Government to satisfy their personal purposes, whether for harassment or in hopes o f forcing Northrop to pay them a settlement award. b. The conduct of litigation. When we do enter a case, the relator retains his rights to participate, which often are exercised in ways adverse to the government’s interests. The Civil Division has already encountered claims by relators that they, as representatives o f the United States, are entitled access to our investigative files and personnel. Moreover, all disputes between us and the relator over the conduct of the case — from discovery to witness selection to cross-examination — are decided by the court. This leaves open the question whether the Act has transferred the executive power to the relator or the district judge, but it is clear that that power has been transferred away from the Attorney General.6 When we do not intervene, the Department nevertheless must spend resources monitoring cases that it had for good reason decided not to bring. Because it is never possible to tell what prejudice we might suffer 6 See Memorandum fo r John R. Bolton, Assistant Attorney General, Civil Division, from Michael F Hertz, Director, Com m ercial Litigation Branch, at 7 (the “Civil Division Mem o”), recommending that the Department decline to enter the relators’ suit. GThis arrangement, by which the relator looks over our shoulder at trial, is precisely what Congress intended. A t trial, the relator is to act as “a check that the Government does not neglect evidence, cause undue delay, o r drop the false claims case without legitimate reason " S Rep No 345 at 26 218 from a relator’s conduct, we must keep close track of these cases. Other difficulties will also arise; for example, the Civil Division has informed us that in one case a qui tam relator sought to depose a government investi­ gator who had worked on a grand jury probe o f a contractor other than the qui tam defendant. c. Judgment and settlement. Perhaps the most important interference comes if we seek to settle a case. If we negotiate a settlement but the rela­ tor objects, the court must determine whether the arrangement is “fair, adequate and just” under the circumstances — a judicial role that to our knowledge is unique.7 The perverse results this provision can have are reflected in the court’s action in Gravitt v. General Electric Co., 680 F. Supp. 1162 (S.D. Ohio), cert, denied, 488 U.S. 901 (1988). In that case, a relator claimed that General Electric had presented false statements to the Defense Department. Many o f General Electric’s records were indeed incorrect, but the inaccurate accounting system involved had resulted in net undercharges to the Government. We negotiated a settlement under which Genera] Electric would pay a substantial penalty and waive its counterclaims growing out o f the undercharges. The relator objected, and the district court refused to accept the settlement, lecturing us on the inadequacy o f our investigation into the matter, even though the Defense Department was already quite familiar with the situation.8 A few years later, we succeeded in settling for the original figure. Where we do not enter a qui tam action, the relator either litigates the case to judgment, which binds the United States, S. Rep. No. 345 at 27, or settles it, likewise binding the Government. This may be quite significant. For one thing, a qui tam relator, who has no enforcement interest, may allege far more corruption than he can prove. Even if that corruption were real, if the relator could not prove it, a judgment against him on those issues would bar us from acting later. In addition, relators such as discharged employees may bring a qui tam count in conjunction with pri­ vate causes o f action. To settle the private claims, the relator may have an incentive to trade the qui tam elements, since he receives only a frac­ 7 Even the Tunney Act, 15 U.S.C. § 16(e), which subjects antitrust consent decrees to judicial review as to the public interest, does not apply to settlements, which heretofore w ere entirely outside the court’s jurisdiction There are very senous doubts as to the constitutionality even o f the Tunney Act it intrudes into the executive power and requires the courts to decide upon the public interest — that is, to exercise a policy discretion normally reserved to the political branches Three Justices o f the Supreme Court questioned the constitutionality o f the TXmney A ct in M ainland o. United States, 460 U.S 1001 (1983) (Rehnquist, J , join ed by Burger, C.J., and White, J , dissenting). 8 In United States ex rel StillweU v Hughes Helicopters, In c , 714 F. Supp. 1084 (C D Cal 1989), the defendant argued that the qui tam mechanism was unconstitutional on its face and pointed to the distnct court’s conduct in Gravitt as an example o f an illicit transfer o f authority to the courts. The ju dge in StillweU, in upholding the qui tam provisions (which he presumed to be constitutional, since they had not been challenged by the executive branch), replied that the G ravitt court’s views o f our conduct w ere entirely reasonable Id. at 1092-93 n.8. This may indicate that in some qui tam cases the courts w ill not need to second-guess our decision to settle, because they will be able to dispose o f the issue by secondguessing our investigative zeal 219 tion o f any payment attributed to them. We must therefore carefully review every qui tam settlement and, if it is defective, try to persuade the judge to reject it. Moreover, the collateral effects may go beyond barring further False Claims Act litigation. In United States v. Halper, 490 U.S. 435 (1989), the Supreme Court held that civil penalties under the False Claims Act can represent punishment for purposes o f the Double Jeopardy Clause. The Court specifically left open the question whether a qui tam suit qualifies as a suit by the Government for these purposes. Id. at 451 n .ll. If it does, we may be foreclosed by the relator from bringing subsequent criminal prosecutions.9 2. The Government as Contractor Transfer o f control over the Government’s litigation to private persons affects not only our litigation function, but every aspect o f the Government’s work that can be implicated in a suit under the False Claims Act. Any Government contract can give rise to a False Claims Act action. For that reason, every routine decision that an agency makes as a contracting party is now subject to the relator’s influence. Any complex contract naturally will produce issues o f construction between the parties. In the case o f Government contracts, the agency concerned must decide whether contract deviations constitute a breach, and sometimes whether a breach amounts to fraud. In making these deci­ sions, it is frequently in the Government’s interest, as it would be in the interest o f any contracting party, to avoid excessive concern over minor failings that might threaten a useful course o f dealing with the other party. In the Government’s case, especially, the agency must carefully consider such matters where the contract involves important military or national security matters, particularly if there are a limited number o f qualified contractors, or the contractor’s performance otherwise has been adequate or even excellent. Under the 1986 Amendments, however, all such policy decisions poten­ tially are thrown into the public forum. Relators who have no interest in the smooth execution of the Government’s work have a strong dollar stake in alleging fraud whether or not it exists. The possibility o f a qui tam suit will therefore lead to a hardening o f positions by the Govern­ ment and the contractor: the contractor must be certain not to be too can­ did, while the Government must be scrupulous about even its least sig­ nificant rights, in order to avoid later second-guessing by a relator and a court. The ripple effects of qui tam in the Government’s contracting flex­ ibility thus could be enormous. 9 Th ere will also be the nice question o f when jeopardy attaches in a False Claims A ct suit 220 III. QUI TAM SUITS ARE UNCONSTITUTIONAL A. Appointments Clause Violation We believe that qui tam suits brought by private parties to enforce the claims o f the United States plainly violate the Appointments Clause o f the Constitution. Art. II, § 2, cl. 2. The Supreme Court has made clear that exercises o f significant governmental power must be carried out by “Officers o f the United States,” duly appointed under the Appointments Clause. E.g., Morrison v. Olson, 487 U.S. 654, 670-77 (1988); Buckley v. Valeo, 424 U.S. 1 (1976). It is well established that “conducting civil liti­ gation in the courts o f the United States for vindicating public rights” is at the core o f executive power and “may be discharged only by persons who are ‘Officers o f the United States.’” Id. at 140 (emphasis added). See also United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888) (the Attorney General “is undoubtedly the officer who has charge o f the insti­ tution and conduct o f the pleas o f the United States, and o f the litigation which is necessary to establish the rights o f the government”); Confiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1868) ( “ [S]o far as the interests o f the United States are concerned, [all suits] are subject to the direction, and within the control of, the Attorney-General.”). The Supreme Court has, to date, steadfastly adhered to the require­ ments of the Appointments Clause. See Public Citizen v. Department of Justice, 491 U.S. 440, 482-89 (1989) (Kennedy, J., concurring) (Appointments Clause must be strictly applied; no “balancing” where a power has been committed to a particular Branch o f the Government in the text o f the Constitution). Even in Morrison v. Olson, the Court insist­ ed on strict compliance with the Clause’s terms, upholding the use o f spe­ cial prosecutors only after concluding that (i) the prosecutors were “infe­ rior” officers, (ii) they were duly appointed by a “Court o f Law” in accordance with the Appointments Clause, and (iii) they remained subject to sufficient executive control in the initiation and prosecution o f cases. In Buckley, the Court held that Congress violated the Constitution when it attempted to vest civil litigation authority in a commission whose members had not been duly appointed under the Appointments Clause. The Court said that “ [a] lawsuit is the ultimate remedy for a breach o f the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. at 138. The qui tam provisions in the False Claims Act are equally unconstitutional. Qui tam relators are not appoint­ ed in any o f the ways prescribed by the Appointments Clause and hold no commission under the United States. Yet these relators exercise signifi­ cant governmental authority by suing to enforce the rights o f the United States in the name o f the United States. Just as Congress cannot vest lit­ igation authority in commission members who have not been duly 221 appointed, it cannot vest such litigation authority in self- selected private bounty hunters who operate without accountability and without commit­ ment to the United States’ interests. There can be no doubt that qui tam relators are exercising significant governmental power. Private relators are empowered to level fraud charges against other private citizens and hail them into court to answer for these alleged public offenses, with the possibility o f collecting not only damages but substantial civil penalties. In so doing, the relators are empowered to overrule the judgment o f executive officials as to whether the contractor has, in fact, committed fraud and whether it is appropriate under the circumstances to prosecute the Government’s claim. Where the Attorney General determines not to proceed with a suit, the relator is empowered to prosecute the suit in the Government’s name, controlling all aspects o f the litigation and binding the United States by the judgment. I f the Attorney General later decides to intervene, the relator remains in control. Even if the Attorney General enters the suit at the outset, the relator remains a party and is empowered to challenge not only the liti­ gation judgments o f the Government but also any attempt to dismiss or settle the case. It is also beyond dispute that the claim the relator litigates is that o f the United States. Qui tam relators historically were understood to be suing in a representative capacity. They were viewed as standing in the shoes o f the Government and suing on behalf o f the Government to enforce the rights o f the Government. Note, The History and Development o f Qui Tam, 1972 Wash. U.L.Q. 81,83-84 ( “Washington University Note”). The qui tam provisions in the False Claims Act are based precisely on that premise. The Act provides that one who files a false claim “is liable to the United States Government for a civil penalty ..., plus 3 times the amount o f damages which the Government sustains.” 31 U.S.C. § 3729(a) (empha­ sis added). In authorizing qui tam suits, the Act provides that the suit shall be brought “fo r the United States Government" and “in the name of the Government." Id. § 3730(b)(1) (emphasis added). The history o f the False Claims Act demonstrates that the Act has always been understood to be what it seems to be: an authorization for private persons to bring suits on behalf o f the Government. Speaking in support o f the Act when it was adopted, Senator Howard explained that it was necessary to deal “speedy and exemplary justice” to “the knave and the rogue” who committed war fraud against “the Government, who is the real sufferer in all cases.” S. Rep. No. 291, 78th Cong., 1st Sess. (1943) (quoting 1863 debates). Similarly, the discussions in 1943, when Congress considered eliminating the qui tam action altogether, leave no doubt as to the nature o f a qui tam action. Speaking in defense o f the mechanism, Senator Murray, after com­ plaining about the Department o f Justice’s failure to prosecute antitrust cases, said that “if a fraud has been perpetrated ... and the Attorney 222 General is failing to take advantage o f [evidence of it], any private citizen in the United States should be entitled to bring up the case in court." 89 Cong. Rec. 7575 (1943) (emphasis added). In a like vein, Senator Revercomb asked, “[w]hat harm can be done by saying to the Department o f Justice, ‘If you do not perform your duty some citizen o f this country is going to rise and perform it for you?’ ” 89 Cong. Rec. 7598 (1943). The 1986 debates reflect the same understanding. Speaking in the House, Representative Brooks gave a straightforward explanation o f qui tam: “The False Claims Act contains provisions which allow citizens to bring suits for false claims on behalf o f the Government.” 132 Cong. Rec. 22,336 (1986). Representative Bedell described the statute as giving informers “standing to bring suit ... on behalf o f the Government.” 132 Cong. Rec. 22,340 (1986). Senator Grassley, the main force in the Senate behind the 1986 Amendments, explained that the “False Claims Act allows an individual knowing o f fraud[] ... to bring suit on behalf o f the government....” 131 Cong. Rec. 22,322 (1985). In perhaps the most telling description, Representative Berman, one o f the bill’s principal drafters, offered the following statement: “ [T]his is precisely what this law is intended to do: deputize ready and [willing] people ... to bring to justice those contractors who overcharge the government.” 132 Cong. Rec. 29,322 (1986). Indeed, the Solicitor General appears to concede that the qui tam device violates the Appointments Clause to the extent a qui tam relator is suing in a representative capacity. Taranto Memo at 8. To surmount this constitutional barrier, the Solicitor General argues that a qui tam action is not a suit based on the government’s claim but is really a private suit based on the relator’s private cause o f action for the contingent monetary award Congress offered for successfully litigating the suit. The Solicitor General thus would argue that, when the relator prosecutes a case, he is not exercising governmental authority, but merely litigating his own pri­ vate claim. The Solicitor General suggests an analogy to private antitrust actions or private title VII actions where both the private party and the government can bring substantially identical suits. Id. This argument is untenable because it flatly contradicts the history o f qui tam actions, the language and structure o f the False Claims Act, and the Act’s legislative history. All o f these sources make abundantly clear that the relator is suing in a representative capacity to enforce the claim o f the United States and that his statutory award is not relief for ir\jury suffered, but a reward for his services. See supra pp. 215, 222-23. In antitrust and title VII actions, the private plaintiff alleges that the defendant’s conduct has invaded his personal legal rights, causing him direct injury. The title VII plaintiff claims that he has been personally harmed by discriminatory practices. The antitrust plaintiff claims that he has been economically harmed by a price-fixer’s illegal conduct. Such pri­ vate plaintiffs have their own independent causes o f action to redress 223 these invasions o f their rights, which incidentally vindicate the public interest. Under the False Claims Act, however, the government is the only party who has suffered iryury as a result o f the contractor’s alleged fraud. Thus, the relator’s suit under the False Claims Act vindicates the ir\jury to the government and that iiyury alone. It is clear that the real party in interest represented by the relator is the government, because the relator’s suit binds the United States by res judi­ cata.10 Even when the Attorney General does not participate in the suit, any judgment or settlement obtained by the relator has preclusive effect on the United States. In this respect, qui tam actions differ fundamental­ ly from the private lawsuits cited by the Solicitor General, and indeed from all “private attorneys general” suits. These private actions do not bind the United States because the real plaintiff is the individual suing on his own independent claim. See, e.g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 690 (1961) ( “the Government is not bound by private antitrust litigation to which it is a stranger”). In a qui tam action, howev­ er, the relator is not really acting in a private capacity, but rather is stand­ ing in the government’s shoes and is prosecuting the United States’ claim. The Solicitor General’s argument that the relator is merely prosecuting his own private claim ultimately fails because it runs headlong into an Article III standing problem. As discussed below, the relator, especially when suing only in his personal capacity, has no “case or controversy” to present to the court because he can show no “iryury in fact” as a result of the contractor’s alleged fraud. B. Article I I I Standing Private qui tam actions violate the well-settled doctrine o f Article III standing. The keystone of this modem standing doctrine, which has been carefully refined by the Supreme Court over the past 20 years, is the con­ stitutional requirement of “iryury in fact.” The Supreme Court has repeat­ edly held that, at an “irreducible minimum,” Article III requires a plaintiff in federal court to demonstrate that: (1 ) (2) dant; (3) he personally has suffered some actual or threatened iryury; the iryury was caused by the putatively illegal conduct o f the defen­ and the relief sought likely w ill redress the iryury. E.g., Valley Forge Christian Colleqe v. Americans United fo r Separation o f Church & State, Inc., 454 U.S. 464, 482-83 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41 (1976). 10 See su p ra p. 215-16. 224 A plaintiff cannot rely solely on abstract iryury or generalized griev­ ances shared by all citizens and taxpayers to establish standing. Allen v. Wright, 468 U.S. 737, 754 (1984); Valley Forge, 454 U.S. at 482-83. If the plaintiff himself has not suffered particularized harm that is “distinct and palpable,” Schlesinger v. Reservists Comm, to Stop the War, 418 U.S. 208, 221 (1974), there is no case or controversy under Article III. See, e.g., Worth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972). Under these well-established principles, qui tam suits are plainly unconstitutional to the extent they purport to be private actions because the relator has suffered no personal “injury in fact” as a result o f the con­ tractor’s alleged fraud. The Solicitor General argues that the relator’s prospect o f receiving a bounty is enough to satisfy Article III standing requirements. It is clear, however, that the mere expectation o f a reward cannot be characterized under established Supreme Court precedent as an “ir\jury” o f any kind.11 The only party who suffers iryury as a result o f the contractor’s false claims is the government. The relator simply seeks to stand in the gov­ ernment’s shoes to sue for an invasion o f the government’s rights. The monetary payment he seeks is not judicial relief to redress his iryury, but a reward for bringing the case. Mere financial incentive to bring the suit does not satisfy the constitutional standard. The Supreme Court has expressly rejected this argument in Diamond v. Charles, 476 U.S. 54 (1986). There, a physician argued that he had standing to continue defending an abortion statute because the trial court had already awarded attorneys’ fees against him. Only he was left to defend the statute, and only by vindicating the statute could he avoid pay­ ing the fees. Although the Court recognized that the physician had a financial stake in the outcome o f the litigation, it held that financial inter­ est alone is not sufficient to confer standing. Id. at 69-70. Citing Valley Forge to stress that the plaintiff’s iryury must be a “result o f the putatively illegal conduct,” the Court stated that “Art. Ill standing requires an iryury with a nexus to the substantive character” o f the underlying claim; an interest that is merely “a byproduct o f the suit” is not sufficient. Id. at 70-71. Just as an attorney with a contingency fee arrangement does not 11 This view is supported by tw o Supreme Court cases holding that an informer’s prospective interest in his reward does not give him a judicially cognizable interest sufficient to allow him to intervene m a case being prosecuted by the government In both cases, the statute at issue gave the informer a share o f the proceeds o f the governm ent’s recovery, but did not authorize direct suit by the informer In Un ited States v. M o m s , 23 U S (10 W h eat) 246 (1825), the Court ruled that customs officers who had a nght to a share o f forfeited property as a reward had no right to intervene in the forfeiture proceeding to prevent the United States from remitting the property to the ow ner The Court ruled that lt]he forfeiture is to the United States, and must be sued for in the name o f the United States. In all this, [the collector] acts as [an] agent o f the government, and subject to the authori­ ty o f the secretary o f the treasury, who may direct the prosecution to cease . [T]he nght [o f the customs officer] does not become fixed, until the receipt o f the money by the collector Id. at 290 Accord C onfiscation Cases, 74 U S. (7 Wall ) 454 (1868) (follow in g M o rris ). 225 have standing on his own to pursue his client’s claim, the relator does not have standing to pursue his claim for a share o f the False Claims Act dam­ ages. The monetary recovery must be directed at redressing an injury suf­ fered by the plaintiff as the result o f the invasion o f a substantive legal right. As the Assistant to the Solicitor General observes, Diamond v. Charles is consistent with: case or controversy law generally [which] requires that there be a legal dispute — and that the plaintiff have a claim o f legal right and the defendant an alleged legal duty to the plaintiff — that precedes and is independent o f the lawsuit itself. Taranto Memo at 4. Nor does the fact that Congress has specifically authorized uniryured persons to bring qui tam actions in any way cure the Article III deficien­ cy. Congress is bound by Article Ill’s “case or controversy” restriction on judicial power and cannot abolish the constitutional requirement o f “injury in fact.” Congress cannot confer standing on persons who fail to meet that test. Congress can, o f course, enact statutes creating new substantive legal rights, the invasion o f which can give rise to the kind o f particularized injury necessary to create standing. See Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973). In no event, however, “may Congress abrogate the Art. Ill minima: plaintiff must always have suffered ‘a distinct and pal­ pable iryury to himself... that is likely to be redressed if the requested relief is granted.” Gladstone, Realtors v. Village o f Bellwood, 441 U.S. at 100. In enacting the qui tam provisions o f the False Claims Act, however, Congress has not created any substantive legal right for qui tam plaintiffs the invasion o f which creates Article III iryury. Those qui tam provisions simply permit the relator to sue on behalf o f the United States, whose substantive rights have been genuinely invaded. As the words o f the statute make clear, a qui tam suit is an action brought to recover “dam­ ages which the Government sustains because o f the [contractor’s fraud­ ulent] act.” 31 U.S.C. § 3729(a) (emphasis added). Qui tam suits thus differ fundamentally from “private attorneys gener­ al” suits or citizens’ suit provisions in other statutes. The Supreme Court has strictly adhered to the “injury in fact” requirement in interpreting those statutes, holding that only those who can demonstrate their own personal iryury from the claimed illegal conduct are allowed standing to sue to protect the public interest in coryunction with their own. See. e.g., Middlesex County Sewerage Auth. v. National Sea Clammers A ss’n, 453 U.S. 1, 16 (1981); Sierra Club v. Morton, 405 U.S. at 737 ( “ [I]r\jury is what gives a person standing to seek judicial review ..., but once review is properly invoked, that person may argue the public interest in support o f 226 his claim.... It is in [this] sense that we have used the phrase ‘private attorney general.’”). Qui tam suits also differ from those cases in which the Supreme Court has permitted litigants to raise the rights o f others under so-called jus tertii or “third party” standing. In those cases, the Court has strictly adhered to the “iryury in fact” requirement, allowing a plaintiff to assert the rights o f third parties only if the plaintiff showed that the challenged action also iryured him. See Craig v. Boren, 429 U.S. 190, 192-97 (1976); Charles A. Wright, TheLaiv of Federal Courts 72 (4th ed. 1983). Significantly, the Solicitor General’s own office cannot agree on whether the mere prospect o f a bounty is sufficient to create standing. The Deputy Solicitor “counsel [s] against” making such an argument because: (1) “it cannot be reconciled with recent Supreme Court deci­ sions”; (2) it cannot “account for the requirement o f redressability which the Court has stressed in recent decisions”; and (3) it “would be in some tension with our usual posture [in standing cases], which has generally been to insist on a formalistic, corrective-justice type model o f standing.” Memorandum for the Acting Solicitor General, from Thomas Merrill, Deputy Solicitor General at 3 (Apr. 5, 1989). The Assistant to the Solicitor General admits that the standing issue is “close” and “the hardest ques­ tion” and that the bounty theory “stands in uneasy relation to prevailing principles o f standing.” Taranto Memo at 3 n.l. To surmount qui tarn’s obvious conflict with established standing doc­ trine, the Solicitor General proposes to argue that qui tam actions must be recognized as “cases or controversies” within the meaning of Article III because they were known in England prior to the Revolution and seem to have been used to a limited degree in the early years o f the Republic. This historical argument is fundamentally flawed in several respects.12 First, the status o f historical qui tam actions as cases or controver­ sies is irrelevant to the validity o f the Solicitor General’s proposed reformulation o f qui tam as a truly private suit by the Telator. Qui tam as it existed at the time o f the framing involved actions in which the relator sued in a representative capacity to enforce a public penalty on behalf o f the government. See, e.g., Act o f Mar. 1, 1790, ch. 2, § 3, 1 Stat. at 102 (authorizing informers to collect penalties for official miscon­ duct under Census Act). Although it may have violated separation o f powers, such an action at least presented a case or controversy because the real party in interest — the government — had suffered an injury and thus had a cognizable claim. But it is mere sleight-of-hand to suggest that if qui tam in this sense was necessarily a case or contro­ versy, so is qui tam in the very different sense proposed by the Solicitor 12 This histoneal argument concerns the status o f qui tam actions as cases or controversies We discuss below, see infra, at pp. 232-38, the broader claim that history validates qui tam whether or not it can be accommodated to any particular constitutional principle, such as the requirements o f Article III 227 General, in which a relator w ho has not been injured sues for himself, not the government. Next, it is far from clear that the Framers, had they examined the mat­ ter, would have concluded that qui tam as they knew it satisfied the case or controversy requirement. There is certainly no direct evidence that they thought so. Indeed, qui tam statutes that permitted an uninjured informer to sue, and actions brought by such informers, apparently were both fairly rare. Many statutes seem to have contemplated — and almost all suits actually brought seem to have been — actions either by public officials or injured parties.13 Qui tam actions brought by pure informers thus probably would not have seemed a commonplace thing for the Framers, and we cannot assume that they would have thought that Article III had to bend to such actions. Finally, the argument that anything that could go into court in 1787 must be a case or controversy has unacceptable consequences. At com­ mon law, the writs o f prohibition, certiorari, quo warranto, and man­ damus all were available to “strangers” who had no personal interest or iryury in fact. See, e.g., Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement? 78 Yale L.J. 816, 819-25 (1969); Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1269-71 (1961). But both mandamus and quo warranto are actions brought to challenge the conduct o f government officials. Under the Solicitor General’s regime, any person could use these writs to chal­ lenge or compel government action wholly unrelated to the person using the writ. The implications o f this position are staggering. In any event, the Solicitor General’s historical argument proves too much. If this view were accepted, it would mean that Congress could cre­ ate universal standing simply by attaching a penalty to the violation o f any law and offering any person who sues a right to share in the pro­ ceeds. This would privatize the Executive power, allowing any private person to enforce the law against any other, while opening up the deci­ sions by the Executive to unprecedented interference. For example, Congress could enforce its restrictions on the President’s conduct o f for­ eign policy (such as the Boland Amendment) through qui tam actions. All executive actions would be subject to judicial review at the instance o f any intermeddler, and the limits on the federal judicial power would be set by Congress, not the Constitution. C. Encroachment on Executive Powers The President’s power to execute the laws includes two aspects o f 13 We are aware o f only one statistical survey o f qui tam actions in America. That survey reflects that on the eve o f the Revolution, o f 70 inform er suits brought under the navigation laws, 67 w ere brought by governm ent officials, and only 1 was brought by an informer who appeared to have no u\jury o f his own to redress. Lawrence A. Harper, The E n g lish N a vig a tio n L a w s 170 (1939). 228 authority that are important here: the discretion to decide whether to prosecute a claim, and the control o f litigation brought to enforce the government’s interests. The qui tam provisions infringe on both. First, the provisions permit a private citizen to sue on behalf o f the government, even though the Attorney General may have decided for legitimate rea­ sons not to prosecute the claim. This power removes from the executive branch the prosecutorial discretion that is at the heart o f the President’s power to execute the laws. Second, the qui tam provisions vest in the relator a voice in crucial litigation decisions, even if the Attorney General decides to enter the suit. The Attorney General may not move to dismiss the suit, settle the action, or restrict the relator’s participation except by permission o f the court. See 31 U.S.C. § 3730(c). The court also decides whether discovery may be stayed to prevent interference with ongoing civil or criminal investigations. Id. These provisions vest core executive power in the judicial branch. Moreover, in suits in which the Attorney General declines to participate, the relator exercises full sway over the course of the government’s litigation interests. The Attorney General can neither remove the relator from his “office” nor instruct him how to rep­ resent the government’s interests. This transfer by Congress o f executive power away from the President to the relator and the court is impermissible even under the Supreme Court’s most lenient standard forjudging threats to separation o f powers. In Morrison v. Olson, the Court held that restrictions on the Executive’s power to supervise and remove an independent counsel did not violate separation o f powers principles, but only because the Attorney General retained “sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.” 487 U.S. at 696. In upholding the independent counsel statute, the Court stressed four aspects o f executive control. First, the Attorney General has control over initiation o f prosecutions because he retains the “unreviewable discretion” to decline to request the appointment o f an inde­ pendent counsel. See id. at 695-96. Second, the Attorney General controls the breadth o f the independent counsel’s investigation because it is he who provides the statement o f facts upon which the special court sets the counsel’s jurisdiction. Third, the Attorney General retains the power to remove the independent counsel for “good cause” and thus has “ample authority” to ensure that the counsel is properly fulfilling his duties. Id. at 696. Fourth, the Act expressly requires that, once appointed, the inde­ pendent counsel must comply with Justice Department policy unless it would be impossible to do so. See id. The Court’s analysis in Morrison highlights the unconstitutionality o f the qui tam provisions. In contrast to the independent counsel statute, under the qui tam provisions the Attorney General loses all control over the decision whether to initiate a suit. Even where the Attorney General determines that initiating a suit is not warranted, the qui tam relator is 229 empowered to override his judgment and initiate the fraud action. When the Attorney General concludes that proceeding with a suit is not merited or otherwise not in the United States’ interests, the fraud action neverthe­ less goes forward in the government’s name, under the complete control o f the self-interested relator. The Attorney General has no control over the breadth o f the suit. He has no pow er to remove the relator no matter how irresponsible his suit becomes. He has no power to require the relator to adhere to the rules and policies o f the Department o f Justice, despite the fact that the relator is suing in the name o f the United States.14 Further, if the Attorney General does not enter the suit within the first sixty days, his ability later to assert the interests o f the United States are sharply curtailed. He cannot intervene unless he persuades the court that “good cause” exists. Even then, the private relator still has “the right to conduct the action,” and the court may not “limit[] [his] status and rights.” 31 U.S.C. § 3730(c)(3). Moreover, even where the Attorney General does enter the case during the first sixty days, he does not have the right to take over the litigation. The relator remains a full party enti­ tled to participate in the case. Through his own conduct o f the case, the relator effectively can overrule litigation decisions made by the Attorney General, and he is specifically empowered to challenge any effort by the government to settle or dismiss the suit. When a dispute arises between the Attorney General and the relator, the ultimate decision is left to the discretion o f the court. There is another fundamental difference between the qui tam provisions and the independent counsel statute. The independent counsel device was intended to address a narrow“structural problem — the perceived conflict o f interest when the Attorney General is called upon to investigate crimi­ nal wrongdoing by his close colleagues within the executive branch. The Court accepted the independent counsel device as an appropriate means o f dealing with this intrabranch conflict. The device arguably does not undu­ ly encroach on executive power because its very purpose is to investigate impermissible executive activity. Moreover, the device is narrowly tailored to achieve its purpose; it encroaches on the Executive only to the limited extent necessary to protect against a conflict o f interest, while retaining executive control consistent with that objective. Both the premise o f the qui tam provisions and the means Congress has used to advance its goals are far more threatening to the executive branch. The legislative history o f the 1986 Amendments shows that Congress was acting out o f generalized distrust of, and dissatisfaction with, the way the executive branch was carrying out its law enforcement responsibilities. Senator Grassley felt that “the Government bureaucracy [was] ... unwilling to guard against or aggressively punish fraud.” 131 Cong. Rec. 22,322 (1985). Representative Berman was equally candid: 14 See the general discussion o f the statute’s provisions, supra pp. 215-17. 230 he supported qui tam because he thought that “the Department o f Justice has not done an acceptable job o f prosecuting defense contractor fraud.” 132 Cong. Rec. 22,339 (1986). Later in the debate, he explained that the relator was being given full party status at trial “to keep pressure on the Government to pursue the case in a diligent fashion.” 132 Cong. Rec. 29,322 (1986).15 The history o f qui tam thus confirms that it is not a narrowly focused measure designed to cure a structural defect within the executive branch. Rather, Congress is simply attempting to substitute its judgment on how to execute the laws for that o f the President. More narrowly tailored means are available to fulfill the legitimate purpose o f enhancing enforce­ ment o f procurement fraud cases. Congress could provide greater resources and, to the extent it wanted to encourage informers, could pro­ vide for simple bounties for their information without giving them the authority to conduct the litigation. In contrast, permitting Congress to choose its own private law enforcers violates separation o f powers and establishes a basis for gov­ ernance by tyranny. As Madison recognized, the legislative branch is the most powerful, and hence, potentially the most dangerous to the separa­ tion o f powers, because it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a ques­ tion o f real-nicety in legislative bodies, whether the opera­ tion o f a particular measure, will, or will not extend beyond the legislative sphere. The Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed. 1961). No question o f “real-nicety” is involved here — in the qui tam provisions, Congress has extended its power far beyond the legislative sphere. Where, as here, Congress has provided for its law to be enforced by its own deputies, the essence o f separation o f powers has been violated, for “‘[w]hen the legislative and executive powers are united in the same per­ son or body,’ ... ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.’” The Federalist No. 47, at 326 (James Madison) (Jacob E. Cooke ed. 1961) (quoting Montesquieu). Contrary to the Solicitor General’s view, the Attorney General’s right to 15 The legislators who supported the 1986 Amendments w ere echoing those who, in 1943, defeated repeal o f the False Claims Act's qui tam provisions An opponent o f qui tam, Senator Van Nuys, asked one o f its friends, Senator Murray, whether he had “sufficient confidence in the man who is a member o f the President’s Cabinet, the Attorney General, to believe that he w ill conserve the best interests o f the pub­ lic9” Senator Murray replied that “ [w ]e have found that that cannot always be relied upon.” 89 Cong. Rec 7575 (1943) 231 intervene and take over the case does not save the statute from violating separation o f powers principles. The statute enables a private party with only a mercenary interest in a case to force a suit to be brought, even though the Attorney General already may have decided for legitimate pol­ icy reasons not to prosecute. The Supreme Court has recognized that the Executive has the exclusive authority to decide whether to prosecute a case, United States v. Nixon, 418 U.S. 683, 693 (1974), because only a uni­ tary executive properly can balance the competing interests at stake, including law enforcement, foreign affairs, national security, and the overriding interest in just administration o f the laws. IV. HISTORY DOES NOT VALIDATE QUI TAM In the face o f qui tarn’s admittedly “grave dangers” to the President, the Solicitor General is prepared to disregard settled constitutional doctrine and decades o f clear Supreme Court decisions in order to uphold the facial valid­ ity o f qui tam. He claims this fateful step is compelled by qui tarn’s historical usage.16In fact, the historical argument is subject to decisive objections. To begin with, the entire historical inquiry is essentially pointless, since the version o f qui tam that the Solicitor General proposes to defend dif­ fers essentially from qui tam as it existed in history. Whatever else may have been true o f it, historical qui tam was a proceeding in which the rela­ tor sued on behalf o f the government, and once the suit was brought, there was no provision for government intervention. The Solicitor General recognizes that this violates the Appointments Clause and would substitute for it a new regime under which the relator sues on his own behalf and the government is entitled to enter the case. History does not contain that regime, and therefore cannot be invoked to support it. Moreover, the historical argument fails on its own terms. We agree with the Solicitor General that certain kinds o f constitutional questions will be influenced by certain kinds o f historical practices. But an examination o f the Supreme Court’s use of history demonstrates, not that history invari­ ably prevails, but that close questions where the application o f principle is unclear can be resolved by thoroughly considered, lonq-standing his­ torical practices that can be reconciled with doctrine. The constitution­ ality o f qui tam, however, is not a close question, and the use o f qui tam, far from being ingrained in our legal institutions, has been marginal at most. History cannot save qui tam. First, usage alone — regardless how longstanding and venerable — cannot validate a practice that clearly violates constitutional principles.17 IG That usage, which w e discuss more fu lly below, consists o f the existence o f qui tam in England and the enactm ent by early Congresses o f a fe w qui tam provisions 17 See, e.g., Walz v Tax C o m m ’n , 397 U.S. 664,678 (1970) ( “It is obviously correct that no one acquires a vested o r protected right in violation o f the Constitution by long use, even when that span o f time cov­ ers our entire national existence and indeed predates it."). 232 The Constitution, not history, is the supreme law. The Court repeatedly has stated that “ [standing alone, historical [practice] cannot justify con­ temporary [constitutional] violations,” Marsh v. Chambers, 463 U.S. at 790, even when the practice “covers our entire national existence and indeed predates it.” Walz v. Tax Com m ’n, 397 U.S. at 678. Qui tam is fundamentally irreconcilable with the doctrine o f standing under Article III and the President’s appointment powers and law enforcement functions under Article II. This is a case where, absent the invocation o f history, there would be no question about the practice’s unconstitutionality. The mere fact that the earliest congresses adopted a practice has never been enough to establish conclusively the practice’s constitutionality. Indeed, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), struck down part o f the Judiciary Act o f 1789, a statute adopted by the First Congress. There are other examples o f actions taken by the First Congress that later became viewed as unconstitutional. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 100 (1985) (Rehnquist, J., dissenting) (fed­ eral aid to sectarian schools viewed as unconstitutional despite grants o f such aid by First Congress); IN S v. Chadha, 462 U.S. 919, 982-84 n.18 (1983) White, J., dissenting) (use by First Congress o f precursors to leg­ islative veto held unconstitutional); H a ybu m ’s Case, 2 U.S. (2 Dali.) 409 (1792) (declining to enforce First Congress statute giving courts non-judi­ cial duties). Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) ( “broad consensus” that Sedition Act o f 1798 was unconstitutional); Paul M. Bator, et. al., Hart & Wechsler’s The Federal Courts and the Federal System 65-67 (3d ed. 1988) (describing request by Thomas Jefferson for Supreme Court advisory opinions that was .rejected as unconstitutional). Likewise, the same Congress that proposed the Fourteenth Amendment adopted a statute one week later reaffirming racial segregation o f public schools in Washington, D.C. See Marsh v. Chambers, 463 U.S. at 814 n.30 (Brennan, J., dissenting). Given qui tarn’s basic conflict with the Constitution, we believe any argument to sustain qui tam based solely on prior practice must fail. We are unaware o f a single Supreme Court case that has upheld a past prac­ tice that could not be reconciled with principle. On the contrary, the Supreme Court has recognized that long-standing practice does not insu­ late even its own errors from correction.18 Historical practice can influence close cases where the implications of principle are not clear. In such close cases, the authority o f a practice depends mainly on three factors: (1) whether there is evidence the Framers actually considered the constitutional implications o f their 18 See, eg ., Shaffer v. H eitn er, 433 U.S. 186 (1977) (overruling Pen n o y er v. N e ff 95 U.S 714 (1878)); Brow n v Board o f Ed u c , 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)); Graves v. N ew York ex r e f O'Keefe, 306 U.S 466 (1939) (overruling D obbin s v E rie C ounty, 41 U.S. (16 P e t ) 435 (1842)), E rie R R v Tompkins, 304 U S 64 (1938) (overruling Sivift v . Tyson, 41 U S (16 Pet.) 1 (1842)). 233 actions; (2) whether the practice is so longstanding and pervasive that it has become “part o f the fabric o f society;” and (3) whether the practice can be reconciled with constitutional principles in a way that does not undermine settled doctrine. See, e.g., Young v. United States ex ref. Vuitton et Fils S.A.; Marsh v. Chambers; Walz v. Tax Com m ’n. Even if the constitutionality o f qui tam were a close question, however, the statute could not satisfy these three factors. As to the first factor, the Court noted in Marsh v. Chambers that the weight to be accorded the actions o f the First Congress depends on the extent to which the members actually reflected upon how the provisions o f the new Constitution applied to the actions they were taking. “[E]vidence o f opposition to a measure ... infuses [the historical argu­ ment] with power by demonstrating that the subject was considered care­ fully and the action not taken thoughtlessly, by force o f long tradition and without regard to the problems posed” by principles embodied in the new Constitution. 463 U.S. at 791. Early qui tam statutes have all the hallmarks o f action “thoughtlessly” taken. As far as we are aware, the historical record shows no evidence that qui tarn’s constitutional implications were discussed or considered. On the contrary, because o f the unique historical contexts in which qui tam statutes were adopted, the device’s incompatibility with executive law enforcement functions would not have been immediately apparent. Qui tam simply did not bite hard enough for the Executive to recognize or resist it as a usurpation o f its authority. Moreover, we know that mem­ bers o f the First Congress held erroneous assumptions about the extent to which, under the Constitution, English common law and its institu­ tions had been carried over to the federal level of the United States.19The First Congress’s early use o f qui tam appears to have been nothing more than a manifestation of this initial confusion. As to the second factor, the Court has relied on history to resolve bor­ derline cases when the practice has been so pervasive as to become “part o f the fabric o f our society.” Id. at 792. A brief survey o f the history o f qui tam demonstrates that it is a marginal practice that could be eliminated without leaving a trace. 19 For the first six years after the Constitution was adopted, virtually all persons who considered the issue believed that the Constitution permitted a federal comm on law o f crimes. See Stewart Jay, O i'igin s o f Federal C o m m o n L a w P a ri One , 133 U Pa L Rev 1003 (1985). The Framers presumably believed this because it was a practice with which they w ere familiar at common law in Britain and in the states. Th e federal com m on law o f cnmes w as challenged only after a political dispute arose between the Federalist and Republican parties, which led the Republicans to begin to appreciate that the federal com ­ mon law o f crimes was inconsistent w ith the new Constitution’s vesting o f the legislative power solely in Congress Thom as Jefferson, who had approved a comm on law prosecution, became a vigorous advo­ cate o f the view that such prosecutions w ere unconstitutional Today, this is the conventional view o f the matter. Indeed, it is worth noting that com m on law cnm es and qui tam involve complementary errors: cnm inal comm on law is inconsistent w ith Congress’s legislative power, while qui tam is inconsistent with the President’s executive power. Both o f those exclusive vestings o f pow er w ere innovations introduced by the Constitution, the full implications o f which were only slowly perceived 234 In name, qui tam originated at common law, but common law qui tam — which disappeared as early as the 14th century — required injury in fact. See Washington University Note, at 83-86. An aggrieved party sought to gain access to royal courts by arguing that the private ii\jury he had sustained also was an affront to the king. By the end o f the 14th century, the royal courts were hearing suits without the fiction of qui tam, and the device faded. See id. at 85. Common law qui tam thus supports the Solicitor General’s position only if turned on its head: at common law, the actual iryury was to the plaintiff, and it was a legal fiction that iryury was also done the king; under the False Claims Act, the real iryury is to the government, and the Solicitor General urges upon us the fiction that it is the private plaintiff who has a viable cause o f action. After the 14th century, qui tam became a creature o f statute, under which injury in fact was often required. See Washington University Note, at 86. Some statutes, however, permitted private informers, regardless o f iryury, to prosecute a wrongdoer for violation o f a penal law. Although the statutes o f Parliament have only tangential bearing on the validity o f a practice under our new Constitution, it nevertheless is noteworthy that even in England, qui tam proved a vexatious device that ultimately could not be reconciled with the institutions o f free and responsible government. As in the early days o f our Republic, statutory qui tam served a necessary expedient for a medieval English Gov­ ernment that did not yet have the machinery for effective local law enforcement. Part o f the decline o f qui tam may be attributed to its history o f abuse. One commentator noted that the device was used “as means to gratify ill will. Litigation was stirred up simply in order that the informer might compound for a sum o f money. Threats to sue were an easy means o f levying blackmail.” 4 Holdsworth, A History of English Law 356 (1924). Lord Coke classed informers as “viperous vermin.” He contended that “the king cannot commit the sword o f his justice or the oil o f his mercy concerning any penal statute to any subject.” See Gerald Hurst, “ Common Informers ,” 147 Contemp. Rev. 189-90 (1935). From the 16th century for­ ward, the history o f qui tam is one o f retreat, as Parliament progressive­ ly restricted and curtailed its use. It ultimately was abolished there in 1951. See Washington University Note, at 83-88. On this side o f the Atlantic, qui tam never really gained a secure foothold, particularly at the federal level. It appears that six qui tam statutes, restricted to narrow enforcement areas, were enacted during the first four congresses. Adopted when the Executive was embryonic, these statutes were essentially stop-gap measures, confined to narrow circumstances where the Executive lacked the resources to enforce the law. Their intent was to assist a fledgling Executive, not supplant it. As the Executive’s law enforcement capabilities gathered strength, qui tam rapidly fell into disfavor. Within a decade, “the tide had ... tum[ed] 235 against” qui tam, and Congress started curtailing its use. Leonard D. White, The Federalists 417 (1956). The only other appreciable use o f qui tam came during the Nation’s greatest emergency, the Civil War. The unprecedented explosion in fed­ eral procurement, coupled with the extreme demands o f war, prompted enactment o f the False Claims Act. Following the war, qui tam again became dormant. By 1986, except for a flurry o f activity during World War II, qui tam had become an anachronism.20 We think a fair survey o f the history o f qui tam in the United States reveals it as, at best, a mar­ ginal and transitory device that never achieved prominence within our constitutional system because it was so fundamentally incompatible with that system. Nor does the practice of qui tam meet the third criterion, under which the Court may uphold a practice that can be accommodated as a narrow and self-contained exception that does not threaten to undermine impor­ tant constitutional principles. See e.g., Young v. ref. Vuitton et Fils S. A.. But qui tam is not capable o f being contained as a narrow exception, restricted in a principled manner to its limited historic scope.21 Qui tarn’s principle o f private law enforcement is so fundamentally incompatible with the established doctrines o f standing and separation o f powers that if qui tam were accepted, these doctrines would be drained o f any mean­ ing. Qui tam is, by its nature, an exception that will consume the rule. Qui tam thus does not have any o f the characteristics that have led the Supreme Court to give an historical practice the benefit o f the doubt in a close case. Moreover, there are two considerations specific to qui tam that reduce the authority of its historical pedigree. First, where separation of powers issues are at stake, w e do not think it is appropriate to give prior congressional action dispositive weight in determining the constitutional­ 20 For example, w e are aware o f only on e case in this century under the qui tam provisions that apply to the Indian trade, and that was brought by a relator who had been personally injured. See U nited States e x ref. Chase v. Wald, 557 F2d 157 (8th Cir.), cert denied, 434 U.S. 1002 (1977). Similarly, w e are aware o f only one 20th century action brought under the qui tam provision o f the postal laws, which nominal­ ly remained in fo rce until the creation o f the Postal Service in 1970. In that case, the Eighth Circuit held that the statute did not provide a private right o f action fo r the informer. Williams v. WeUs Fargo & Co Express, 177 F 352 (8th Cir. 1910). However, passage o f the 1986 Amendments significantly increased awards and subsequently has resulted in a substantial increase in the number o f qui tam suits. 21 I f w e find that the historical practice o f qui tam is per se constitutional because o f its pedigree, then w e must accept the entire practice as it actually existed, not merely those aspects o f it that seem least objectionable to m odem sensibilities. Th is would raise the possibility o f cnminal prosecutions by private persons, especially given that in England cnminal qui tam was w ell known. See Washington University N ote, at 87-89 In the United States, the penalty provision o f the first Census Act, which authorized qui tam enforcem ent, allowed the penalty to b e collected through an action in debt or by indictment or infor­ mation — the latter tw o implying a cnminal proceeding. A ct o f Mar. 1, 1790, ch. 2, § 3, 1 Stat. 101, 102. Moreover, some o f the early qui tam statutes, including the first Census Act, authonzed private persons w h o had not been ii\jured to sue public officials in qui tam to collect penalties for the officials’ failure to perform their duty. Id We could tolerate neither pnvate criminal prosecution nor the general pnvatization o f execu tive branch employee discipline. But if w e conclude that w e cannot accept some part o f the histoncal practice, there is no reason to defend the remainder under the theory that history is necessar­ ily correct 236 ity o f a later statute. Congress’s aggrandizing enactments should not serve as conclusive precedent on the scope o f Congress’s own authority. The Framers recognized that, in a mixed government, it is the legislative body — the “impetuous vortex” — that is the branch most disposed to usurp the powers o f the others. They also warned that “ [the legislative department] can with the greater facility, mask under complicated and indirect mea­ sures, the encroachments which it makes on the coordinate departments.” The Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed. 1961). It is true that many o f the members o f the early congresses had been involved in framing the Constitution. We cannot assume for that reason, however, that as congressmen they were above attempted encroachments on the other branches. Their actions are not sacrosanct and should be sub­ ject to careful examination for “masked” encroachments on co-ordinate branches. Our obligation to the Constitution requires that we adhere to the principles the Framers wrote into that document, not to the Framers’ misapplications o f those principles.22 Longstanding congressional practice gains somewhat more preceden­ tial value where accompanied by equally longstanding ratification by one or both o f the other branches. But ratification requires more than unthinking acquiescence — it requires an informed and deliberate judg­ ment that a particular practice is constitutional. Early Executive acquies­ cence to qui tam is easily explained. As suggested above, because o f the unique historical context in which qui tam was adopted, its incompatibil­ ity with our constitutional framework was not immediately evident. An expedient measure — even one undergirded by a noxious principle — may, in a particular historical setting, appear benign and at first be w el­ comed without question because of its apparent functionality. It is only through experience, as the measure is applied through a range o f cir­ cumstances, that the pernicious principle reveals itself and becomes fully understood. There is no doubt that the First Congress resorted, sparing­ ly, to the expedient measure o f qui tam. But we doubt the Framers or the First President would have embraced the underlying principle had they considered and fully understood its implications. 22 Genuine separation o f powers, with three truly distinct and independent branches o f government under a written constitution, was very new in 1789. It is therefore not surprising that early congresses enacted a number o f measures that would today stnke us as plainly unconstitutional. For example, the courts w ere given a number o f non-judicial powers and duties, including the removaJ o f U.S Marshals, who then as now w ere appointed by the President. A ct o f Sept. 24, 1789, ch 20, § 27, 1 Stat 72, 87 The First Congress also directed federal judges to substitute fo r French consuls in investigating shipwrecks o f French vessels, A ct o f A pr 14,1792, ch. 24, § 1,1 Stat. 254, and to make reports to the Secretary o f the Treasury on customs forfeitures, Act o f May 26, 1790, ch 12, 1 Stat. at 122-23. See generally Russell Wheeler, E x tm ju d ic ia l A ctivities o f the Early Suprem e Court, 1973 Sup. Ct. Rev 123. Moreover, early congresses follow ed the colonial practice o f treating the Secretary o f the Treasury as if he w ere as much their officer as the President’s, requiring that he prepare reports at the request o f either House. A c t o f Sept 2, 1789, ch. 12, § 2, 1 Stat 65-66. This provision survives as 31 U S.C. § 331(d), which appears to be a clear violation o f IN S v. Chadha, 462 U.S. 919 (1983) 237 Second, we think a strong case can be made that Morrison v. Olson sharply undercuts any historical argument for qui tam. Morrison judges a practice’s constitutionality by the degree to which the practice actually interferes with the Executive’s functions. See 487 U.S. at 685-97. Under this balancing test, the early qui tam statutes arguably may have passed constitutional muster, while Congress’s 1986 use o f qui tam clearly does not. Early qui tam statutes involved little or no actual interference with the Executive. For practical purposes, they were confined to circum­ stances where the Executive’s capacity to enforce the law was virtually non-existent — either because, as in the case o f the 18th century statutes, the Executive was embryonic, or, as in the case o f the Civil War statute, the Executive was overwhelmed and otherwise occupied. Those statutes were designed to aid, not supplant, the Executive. They reflect no ambi­ tion to control or override the Executive’s official law enforcement activ­ ities. Prompted by necessity, they fell into disuse once necessity abated. In contrast, the 1986 Amendments substantially interfere with the Executive’s functions. The executive branch today is fully capable o f policing claims against the government.23 Indeed, procurement is now one o f the most heavily regulated and policed sectors o f public activity. In resuscitating the dormant qui tam device, Congress’s express purpose was to interfere with the Executive’s law enforcement activities, to displace official prosecutorial discretion with the mercenary motives o f private bounty hunters. The narrow use o f qui tam in the 18th century cannot validate the kind of encroachment qui tam causes today. V. THE SOLICITOR GENERAL’S UNWISE STRATEGY The Solicitor General's approach declines to face squarely the consti­ tutional questions raised by the qui tam statute. Rather, it adopts the tac­ tic o f arguing that the statute is facially constitutional and constitutional as it has been applied so far, but reserving the right to argue a violation o f separation o f powers based on a balancing o f interests if additional encroachment on the Executive’s powers subsequently occurs. This approach employs both bad tactics and bad law. First, the approach is tactically unwise because it forces us to forfeit the strongest objective arguments in favor o f protecting executive branch interests. The Solicitor General advocates total relinquishment o f the standing and Appointments Clause arguments; yet, as discussed above, under existing case law these arguments point clearly toward a conclu­ sion that the statute is unconstitutional. Once those are abandoned, all that will remain to protect the President’s interests will be the argument 23 Even assuming the Executive lacks sufficient resources to investigate and prosecute such claims, there are other ways Congress can address the problem that would be constitutional, such as funding more Department o f Justice resources targeted at those claims. 238 that at some undefined point, the subjective degree o f encroachment on executive powers will have become unbearable. That sort o f unprincipled balancing approach leaves the Executive entirely vulnerable to an adverse judicial decision. Moreover, conceding standing itself weakens the separation of powers argument. To satisfy the standing requirements, we must accept the fic­ tion that the relator and the Executive are coplaintiffs pursuing two sep­ arate claims. With that fiction in place, the encroachment on executive powers is difficult to resist, since the issue becomes framed in terms of the competing interests o f two litigants rather than an infringement on separation o f powers. Second, the approach represents a completely disingenuous way of determining a statute’s constitutionality. Although it is generally true that a statute should be construed when possible to avoid constitutional prob­ lems, portions o f the statute cannot be twisted or ignored to reach that result. The Court recently reaffirmed the longstanding principle that in assessing the facial validity o f a statute, it will not ‘“press statutory con­ struction “to the point o f disingenuous evasion” even to avoid a constitu­ tional question.’” Public Citizen v. United States Department of Justice, 491 U.S. at 467 (quoting United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933))). Accord Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) (reprimand­ ing the plurality for “distorting the statute” to avoid invalidating it) (Blackmun, J., dissenting). Even the Solicitor General concedes that some provisions of the qui tam statute are facially unconstitutional, such as the grant to the court o f the ultimate power to decide whether the gov­ ernment may settle or dismiss a qui tam suit when the relator objects. See Taranto Memo at 12. To argue, then, that these provisions must be ignored for now and later applied other than as written to avoid an asapplied challenge engages in the very sort o f “disingenuous evasion” against which the Court has cautioned. Moreover, by conceding that the statute is constitutional as applied to date, the Solicitor General concedes the legality o f the prime example o f encroachment on executive powers — the Executive’s ability to initiate suit and the discretion to decide which cases not to pursue. Third, the Solicitor General’s proposed balancing approach does not properly apply Morrison v. Olson. The Solicitor General advocates exam­ ining each case brought under the qui tam statute to ascertain the degree of that case’s encroachment on executive powers. This method o f analy­ sis is completely inconsistent with the balancing approach used in Morrison, which looked instead at the potential impact o f applying the statute according to its terms. The Solicitor General also advocates a more global approach to ana­ lyzing the potential encroachment on executive powers. Under this approach, the Solicitor General recommends waiting to see if Congress 239 employs the qui tam method o f enforcement in other statutory contexts. If so, the Solicitor General postulates that the cumulative burden on executive powers might be so great that the amendments to the False Claims Act then would be unconstitutional. This method o f analysis has no basis in law. The Court has never determined the constitutionality o f a statute based on the effect o f other statutes. Moreover, there is no prin­ cipled way to determine how many such statutes must be enacted before the encroachment achieves constitutional proportions. Finally, the Solicitor General’s piecemeal approach fundamentally con­ flicts with his historical argument. The Solicitor General contends in part that qui tam must be upheld because its historical acceptance by courts and Congress since this country’s inception has been “ancient, regular, and unbroken.” Taranto Memo at 4. In particular, the Solicitor General has pointed to the favorable treatment given an earlier version o f the False Claims Act qui tam provisions in United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943). That version o f the Act, however, did not con­ tain the provisions introduced by the 1986 Amendments granting the court the ultimate authority to dismiss or settle a qui tam action in which the government has intervened. The Solicitor General acknowledges that his view o f the statute’s constitutionality ultimately depends upon a prop­ er application o f those provisions. See Taranto Memo at 12. The Solicitor General cannot consistently claim both that qui tam has historical con­ stitutionality and that the current statute’s validity rests on the proper application o f provisions introduced in 1986. The two arguments cannot and do not coexist. VI. CONCLUSION For these reasons we recommend that you authorize the Civil Division to enter an appropriate case and present the executive branch’s argu­ ments against the constitutionality o f qui tam. WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 240

Write a legal research memo on the following topic.

April 27, 1977 78-78 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT The White House—The Vice President— Gifts (3 U.S.C. §§ 110, 111; 16 U.S.C. § 6a) You have asked for our views regarding the acceptance of gifts to be used in the White House, the official residence of the Vice President, or the offices of the President and Vice President. We separately answer the questions raised by the proposed gifts. I. Gifts of Art and Furnishings for the White House, the Vice President’s Residence or the Offices of the President and Vice President There is- express statutory authorization for the acceptance of such gifts. Section 6 of Pub. L. No. 93-346, 88 Stat. 340 (1974), as amended, 3 U.S.C. § 111 note (1976), authorizes the acceptance of donations of art and furnishings for the official residence of the Vice President: The Secretary of the Navy is authorized and directed, with the approval of the Vice President, to accept donations of money or property for the furnishing of or making improvements in or about the temporary official residence of the Vice President, all such donations to become the property of the United States and to be accounted for as such. Gifts for use in the White House are authorized by 3 U.S.C. § 110 (1976), which provides in pertinent part: With a view to conserving in the White House the best specimens of the early American furniture and furnishings, and for the purpose of maintaining the interior of the White House in keeping with its original design, the Director of the National Park Service is author­ ized and directed, with the approval of the President, to accept donations of furniture and furnishings for use in the White House, all such articles thus donated to become the property of the United States and to be accounted for as such. 349 This statute authorizes gifts of “ furniture and furnishings” for the official residence and the offices of the President and Vice President and other offices that are located in the East or West Wing of the White House.1 We construe the term “ furnishings” to include gifts of art and other decorations that cannot be readily characterized as “ furniture.” It should be noted, however, that the statute appears to contemplate the acceptance of early American items, and only where this would be consistent with maintaining the interior of the White House in keeping with its original design. Aside from this specific provision applicable to the White House, the Secretary of the Interior is authorized to accept, in the name of the United States, “ gifts or bequests of money for immediate disbursement or other property in the interest of the National Park Service, its activities, or its service, as heretofore authorized by law.” 16 U.S.C. § 6a (1976). In our view, this statute constitutes authority for the acceptance of gifts in connection with the Department of the Interior’s general statutory responsibility under Pub. L. No. 87-286 for maintenance of the White House and its grounds.2 This Office advised the White House in 1974 that 16 U.S.C. § 6a authorized the Secretary of the Interior to accept the donation of a swimming pool at the White House for the President’s use. The mentioned statutes are silent on the question of the acceptance of conditional gifts. As a general rule, such gifts may not be accepted by the Government without the express approval of Congress. Story v. Snyder, 184 F. (2d) 454, 456 (D.C. Cir. 1950). The policy of the Curator of the White House has been to refuse gifts offered on the condition that they be displayed in a certain manner or location in the White House, on the ground that this would interfere with the continuing responsibility of the Committee for the Preserva­ tion of the White House to maintain the interior of the White House in the manner deemed suitable at a particular time. Executive Order No. 11145, 3 CFR 184 (1964-1965 compilation), reprinted in 3 U.S.C. § 110 note (1976). The type of condition that would be acceptable to the Curator would be, for example, attaching a small plaque to the gift to identify the donor. The current White House policy appears to be consistent with the general rule on conditional gifts outlined above. We recommend that a similar policy on acceptance of conditional gifts be adopted for the Vice President’s residence. It is our understanding that, by arrangement with the National Park Service, maintenance and furnishing of the East and West Wings of the White House are the responsibility of the General Services Administration (GSA). According to 'Section 1 of Pub. L. No. 87-286, 75 Stat. 586 (1961), describes the “ While H ouse" as “ all of that portion of reservation numbered 1 in the city of W ashington, District of Columbia, which is within the President’s park enclosure, comprising eighteen and seven one-hundredths acres . . . ” 2The Department of the Interior’s responsibility derives from the language in § I o f Pub. L. No. 87-286 that the White House and its grounds “ shall be administered pursuant to the Act of August 25, 1916, 39 Stat. 535; 16 U.S.C. 1-3, and Acts supplementary thereto and amendatory thereof.” The Act of August 25, 1916, established the National Park Service in the Department of the Interior. 350 the Curator’s Office, few of the furnishings donated to the White House are used in the East and West Wings; when they are, the items are apparently regarded as being on loan from the.collection intended for the residence. We see no reason why gifts donated to the White House, especially those of an historical nature, cannot be used in the East and West Wings in this fashion. The General Services Administration has jurisdiction over the Old Executive Office Building and would therefore be the proper recipient of any gifts for use in that building. The Administrator of GSA is authorized to accept on behalf of the United States “ unconditional gifts of real, personal, or other property in aid of any project or function” within his jurisdiction. 40 U.S.C. § 298a (1976). Because GSA has assumed responsibility for maintenance and furnishing of the East and West Wings, we believe it may accept gifts for use there as well. It should be noted, however, that 40 U.S.C. § 298a (1976) refers only to unconditional gifts.3 II. Gifts of Services Attendant to the Loan of Art dr Furnish­ ings to the Residences or Offices, such as Collection, Crating, Transportation, and Insurance While there is no express statutory authority for the White House or the official residence of the Vice President to receive works of art or other objects on loan, we see no reason to object to this practice.4 Nor do we see any basis for objecting to the acceptance of services related to the loan, such as collection, crating, transportation, and insurance. In 1974 this Office advised the White House that a painting that had been given to the White House on the condition that it be exhibited to the public could be viewed as a loan and be returned to the donor if it was no longer to be displayed. That earlier advice necessarily proceeded on the assumption that such a loan could be accepted. Moreover, the Comptroller General has ruled that agencies may accept a loan of equipment to be used in performing an agency function, although he noted that this practice should not be encouraged because of the possibility of claims against the Government or the appearance of favoritism in later agency dealings with the lender. 22 Comp. Gen. 153 (1942). In most cases there is little likelihood of an appearance of favoritism toward one who lends items to the White House or the Vice President’s residence. With respect to the possibility of claims against the Government, the Committee for the Preservation of the 3This Office advised the White House in 1964 that 40 U.S.C. § 298a (1976) permitted GSA to accept a donation of television lights to be installed in one of the Wings by several networks. It was emphasized that the fixtures, once installed, were to be regarded as property of the United States for all purposes. 4See Secretary of the Navy Instruction 4001.2E (Oct. 18, 1978) governing acceptance of gifts for the Vice President's residence under Pub. L. No. 93-346, supra. Paragraph 3.e. defines the term "gift” to include loans, except loans of money. See H 4.b. Arguably. 3 U.S.C. § 110 (1976) and 16 U.S.C. § 6a (1976) could also be construed to permit acceptance of loans, which are in a sense only temporary gifts. 351 White House has in the past purchased an insurance policy covering all items on loan to the White House. If, as it appears, loans of furnishings may be accepted for use in the White House or Vice President’s residence, we see no reason why the lender may not pay the costs incident to the loan. We do not mean to suggest, however, that funds appropriated for the Executive Residence or the Official Residence of the Vice President under the Executive Office Appropriations Act of 1977, Pub. L. No. 94-363, 90 Stat. 966 (1976), may not be used to pay these costs. The appropriations are available for the “ refurnishing” and “ furnishing” of the two residences, respectively. Presumably they may be spent for the outright acquisition of suitable art and furnishings. Obtaining such items on loan is merely another form of acquisition, albeit of a temporary nature, and we see no reason why appropriated funds cannot be expended to meet the costs of their use by the Government. Cf. 22 Comp. Gen. 153, 154 (1942). In this connection, the Curator’s Office informed us that it has in the past spent appropriated funds to pay the costs incidental to loans of art and furnishings to the White House. One final point with respect to loans may be of interest. The Committee for the Preservation of the White House has apparently required lenders of property to state in writing that they will not sell the property in question for a certain period of time after it has been returned by the White House and to promise that the fact that the property was once displayed in the White House will not be mentioned in advertising in connection with its later sale. This obviously is intended to prevent trading on the White House name. It may be appropriate to adopt a similar policy for the Vice President’s residence. III. Gifts for the Purpose of Acquiring Art, Furnishings, or Attendant Services The special statute authorizing the acceptance of furniture and furnishings for the White House does not appear to permit acceptance of cash donations. 3 U.S.C. § 110 (1976). However, the general statutory authority of the Secretary of the Interior to accept gifts in connection with National Park Service activities specifically mentions money, 16 U.S.C. § 6a (1976), as does the special statute applicable to the Vice President’s residence, Pub. L. No. 93-346, supra. The statute applicable to GSA does not expressly mention gifts of money, but such gifts would appear to be.included in the general phrase in 40 U.S.C. § 298a (1976), “ gifts of real, personal, or other property.” IV. The Proper Recipient of Gifts Under paragraph 12 of Secretary of the Navy Instruction (SECNAV) 4001,2E, the Chief of Naval Operations is designated as the “ cognizant official” responsible for processing gifts to the Vice President’s residence; but it is the Secretary of the Navy who ultimately accepts such gifts.5 5If any questions arise regarding the acceptance of gifts for the Vice President’s residence, the Administrative Law Section of the Navy’s Office of the Judge Advocate General is familiar with (Continued) By tradition, the Committee for the Preservation of the White House, established by Executive Order No. 11145, has been designated as the recipient of gifts made to the White House, although it, of course, accepts such gifts on behalf of the United States. As we understand it, donations of funds to be used for furnishing the White House are accepted by the Committee and deposited in a special account maintained by the National Park Service for use by the Committee. All gifts are acknowledged by a certificate issued by the Commit­ tee.6 The Curator’s Office assists the Committee in these matters. Finally, the regional office of the General Services Administration should be consulted regarding donations of art or furnishings to be used in the Old Executive Office Building or gifts of furniture of no particular historical significance to be used in the East or West Wings of the White House. V. Solicitation of Gifts We are not aware of any statute that either authorizes or prohibits members of the President’s or Vice President’s staff from soliciting gifts of art, furnishings, and attendant services.7 To the degree that the President and Vice President become involved in the gift process, we see no reason why their staffs may not assist them. However, the applicable statutes appear to assign primary responsibility for the White House and Vice President’s residence to other entities, subject to the general supervision of the President and Vice President. As mentioned above, the Committee for the Preservation of the White House has traditionally assumed responsibility for acceptance of gifts to the White House. In addition, the restrictions contained in Executive Order No. 11222, 3 CFR 306 (1964-1965 compilation), reprinted in 18 U.S.C. § 201, note (1976), and the implementing regulations for the Executive Office of the President should be considered.8 Section 201(a) of the Executive order prohibits any employee covered by the order from soliciting any gift, loan, or other thing of monetary value from any person, organization, or group that: (1) has, or is seeking to obtain, contractual or other business or financial relationships with his agency; (Continued) internal procedures for gifts to the Navy in general, including those to the Vice President’s residence. 6We are not aware that a comparable committee has been established for the Vice President’s residence, but one could presumably be created by the Secretary of the Navy, with the Vice President’s approval. Such a committee could relieve the Vice President’s staff and family of any administrative burden in accepting gifts and dispel any potential awkwardness in having them directly involved in the process. 740 U.S.C. § 193p. (1976) makes it unlawful for "anyone other than an authorized employee or concessionaire . . . to solicit alms, subscriptions, or contributions” (emphasis added) within the buildings or grounds of the Institution. Although this statute is obviously inapplicable to the present situation, it is the only statute pertaining to solicitation of gifts by Federal employees. “The Office of the Vice President is not included among the agencies to which the Executive Office’s Standards of Conduct apply. See 3 CFR IOO,735-2(a) (1977). However, we understand that Vice President Rockefeller issued Standards of Conduct regulations for the Vice President’s staff which are still in effect and are sim ilar‘in most respects to those of the Executive Office. 353 (2) conducts operations or activities which are regulated by his agency; or (3) has interests which may be substantially affected by the performance or nonperformance of his official duty. See also 3 CFR 100.735-14(a) (1977). This section was directed primarily at the solicitation of gifts for the employee’s personal benefits. Nevertheless, as a matter of policy, solicitations should be avoided where the persons or organizations involved have a significant interest in matters that are likely to be reviewed in the White House or the Vice President’s Office. See also Executive Order No. 11222, §§ 201(c)(2), (4), and (6); 3 CFR 100.735-4(c)(2), (4) and (6) (1977). Even where the potential donor has no particular interest in matters pending before the President or Vice President, we believe it would be advisable for members of the President’s and Vice President’s regular staffs to avoid extensive involvement in the solicitation of gifts or loans. Time spent by these individuals on solicitation of gifts would of necessity be diverted from their ordinary governmental duties, thereby, perhaps, giving the appearance of “ [i]mpeding Government efficiency and economy.” Executive Order No. 11222, § 201(c)(3); 3 CFR 100.735-4(c)(3) (1977). Finally, although loans of art and furnishings to the White House and the Vice President’s residence are official in nature, they result in at least some personal benefit in terms of use and enjoyment by the President and Vice President, their families, and staff members. To this extent, excessive involvement of staff members in solicitation might create an appearance of ” [u]sing public office for private gain,” which is prohibited by section 201(c)(1) of Executive Order No. 11222 and 3 CFR 100.735-4(c)(l) (1977). VI. Forms of Agreement The Office of the Curator has stated that most donors do not use any particular form or deed for gifts to the White House. The usual procedure is for the donor to address a letter to the Committee for the Preservation of the White House stating that an unconditional gift is being made to the Committee on behalf of the United States.9 The Curator’s Office also informed us that this arrangement has proved to be satisfactory in the past and that no problems have arisen. We see no reason why the same procedure cannot be used for gifts to the Vice President’s residence, especially if a policy is adopted of not accepting conditional gifts. Vice President Rockefeller executed a deed of gift for certain property he donated to the Vice President’s residence, but a copy of this deed was not ’The Curator’s Office also stated that it makes clear that it is the donor’s responsibility to have the properly assessed for tax purposes. 354 retained in the files o f the Office of the N avy’s Judge Advocate General because it was an unrestricted gift. Generally, deeds should be filed with the Secretary of the Navy through the Chief of Naval Operations, the cognizant official for gifts to the Vice President’s residence, as a permanent record of the gift. A letter o f acknowledgement from the Secretary of the Navy to the donor would be adequate evidence o f acceptance. Jo h n M . H armon A cting A ssistant A ttorney G eneral Office o f L egal Counsel 355

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Recess Appointments During an Intrasession Recess T he President may make interim recess appointments during an intrasession recess o f eighteen days. January 14, 1992 M e m o r a n d u m O p i n io n f o r t h e D e p u t y C o u n s e l t o t h e P r e s id e n t This memorandum responds to your request that this Office determine whether the President may make appointments under the Recess Appoint­ ments Clause to the Federal Housing Finance Board (“FHFB”), the Legal Services Corporation (“LSC”), and the office of the Chief Executive Officer o f the Resolution Trust Corporation (“RTC”) during the current recess of the Senate, which began on January 3, 1992 and will end on January 21, 1992. We conclude that he may. Common to all of these appointments is the issue whether the President may make recess appointments during an intrasession recess of eighteen days.1 Article II, Section 2, Clause 3 of the Constitution provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End o f their next Session.” The longstanding view of the Attorneys General has been that the term “recess” includes intrasession recesses if they are of substantial length. Attorney General Daugherty held in 1921 that the Presi­ dent had the power to make a recess appointment during a twenty-eight day intrasession recess. He explained that recess appointments could be made during any recess of such duration that the Senate could “not receive com ­ munications from the President or participate as a body in making appointments.” 33 Op. Att’y Gen. 20, 24 (1921) (quoting S. Rep. No. 4389, 58th Cong., 3d Sess. 1905; 39 Cong. Rec. 3823). According to Attorney General Daugherty, while “the line of demarcation cannot be accurately drawn,” id. at 25, ' For practical purposes with respect to nominations, this recess closely resembles one of substantially greater length. House Concurrent Resolution 260, enacted on November 27, 1991, provides that the first session of the 102nd Congress stood adjourned until 11:55 a.m. on January 3, 1992, or until M em ­ bers were otherwise notified to reassemble. H. Con. Res. 260, I02d Cong., 1st Sess. (1991). It also provides that "when the Congress convenes on January 3, 1992 . . . , the Senate shall not conduct any organizational or legislative business and when it recesses or adjourns on that day, it stand in recess or adjournm ent until 11:30 a.m. on Tuesday, January 21,1992 [or until otherwise notified to reassem ble].” Id. Except for its brief formal session on January 3, then, the Senate will have been absent from N ovem ber 27, 1991 until January 21, 1992, a period of fifty-four days. 15 the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor of the validity of whatever action he may take. Attorney General Daugherty’s opinion has been cited with approval in subsequent opinions of the Attorneys General, and has been relied on by the Com ptroller General as well. See e.g., 41 Op. Att’y Gen. 463, 468 (1960); 28 Comp. Gen. 30, 34-36 (1948). Past practice is consistent with exercise o f the recess appointment power during an intrasession recess of eighteen days. President Coolidge made a recess appointment during a fifteen day recess. Memorandum for the Coun­ sel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel at 3 (Dec. 3, 1971). In 1985 President Reagan made recess appointments during an eighteen day intrasession recess. Memo­ randum to Files, from Herman Marcuse, Office of Legal Counsel (Jan. 28, 1985). Accordingly, we believe that the President may constitutionally make recess appointments during the current intrasession recess.2 We next address the specific offices you have identified. All of the mem­ bers o f the Boards of Directors of the LSC and the FHFB had been serving pursuant to recess appointments that expired when the First Session of the 102nd Congress ended on January 3, 1992. Those offices are thus now vacant and the President may make recess appointments to them during the current recess. See Permissibility o f Recess Appointments o f Directors o f the Federal Housing Finance Board, 15 Op. O.L.C. 91 (1991); Memorandum for John P. Schmitz, Deputy Counsel to the President, from Timothy E. Flanigan, Special Assistant, Office of Legal Counsel (Oct. 17, 1990). Finally, we believe that the President may recess appoint the Chief Ex­ ecutive Officer of the RTC. That office was created by section 201 of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991, Pub. L. No. 102-233, 105 Stat. 1761 (“Act”), which the Presi­ dent signed on December 12, 1991. Although certain of the substantive provisions of the Act do not take effect until February 1, 1992, see title III of the Act, the provision creating the position of Chief Executive Officer is not subject to any special effective date provision, and hence went into effect upon enactment. The Attorneys General have long believed that the President has the power to make an original recess appointment to a newly created position. See 12 Op. A tt’y Gen. 455 (1868); 14 Op. Att’y Gen. 562 (1875); 18 Op. A tt’y Gen. 28 (1880), a position upheld in United States v. A llocco, 305 F.2d 704, 713-14 (2d Cir. 1962), cert, denied, 371 U.S. 964 Id. 2 Attorney General Daugherty, however, suggested in 1921 that “an adjournment for 5 or even 10 days” would not be sufficient “to constitute the recess intended by the Constitution.” 33 Op. Att’y Gen. at 25. 16 (1963). The Office therefore now exists and is vacant for purposes o f the Recess Appointments Clause. In conclusion, we believe that the current recess constitutes a sufficient period for the President to make the aforementioned recess appointments as a matter of law. As a matter of policy, we suggest that the President make the appointments as soon in the recess as possible. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 17

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Proposed Legislation to Restrict the Sales of Alcoholic Beverages in Interstate Commerce Proposed legislation to prohibit the sale in interstate commerce of alcohol to persons under the age o f 21 is a valid exercise o f Congress’ power under the Commerce Clause and consistent with the Twenty-First Amendment. The Twenty-First Amendment permits states to enact legislation more restrictive than would otherw ise be permissible under the Com merce Clause; however, it does not deprive the federal government o f any authority over alcohol under the Commerce Clause. The proposed legislation would not be “in violation” of more permissive state law s. Even if it were read to be “in violation” o f such law s, a court would likely find that the federal interest in preventing damage to national commerce outweighed any particular state’s interest in permitting access to liquor for persons under age 21. April 16, 1984 M em orandum O p in io n O f f ic e for th e of A s s is t a n t A t t o r n e y G e n e r a l , L e g is l a t iv e A f f a ir s This responds to your request of January 20, 1984 for our views on H.R. 3870, a bill to restrict the sales of alcoholic beverages in interstate commerce. Although Congress has not yet asked for the Department’s views on this bill, you have requested our opinion in view of the questions raised by opponents of the bill and the public debate over it.1We have reviewed H.R. 3870 and believe that it is constitutional. Section 1 of the bill contains congressional findings on the economic dam­ age done by drunk drivers, the disproportionate number of accidents caused by drunk drivers who are under the age of 21, and the benefits to the public welfare that will result from restricting sales of alcohol to those over 21. Section 2 prohibits the sale in interstate commerce of alcohol to those under 21: No person may sell or offer to sell any alcoholic beverage to any individual who is under the age of twenty-one if the beverage is or has traveled in interstate commerce or if the sale or offer to sell is made in an establishment which is in or affects interstate commerce. 1 See W ash. Post, Feb. 9, 1984, at A 12, col. 6; 70 A.B.A. J.18 (Apr. 1984). The O ffice of M anagem ent and Budget has recently asked for our view s on this bill. 53 Section 3 provides definitions; § 4, penalties; and § 5 authorizes civil actions by citizens against those who violate § 2 ? Section 6 permits the Secretary of Commerce to waive the application of § 2 in any state that has a law “effective in prohibiting the sale of liquor” to those under 21, and to cancel the waiver if the law is ineffective. Section 7 makes § 2 effective two years after passage of H .R .3870. The constitutional question raised by H.R. 3870 is whether § 2 of the Twenty-First Amendment to the Constitution prohibits the federal government from exercising authority under the Commerce Clause, U.S. Const, art. I, § 8, cl. 3, that would otherwise clearly furnish a constitutional basis for enacting this legislation.3 Although the issue is not, because of its novelty, entirely free from doubt, we believe that the proposed legislation is constitutionally permissible. The Twenty-First Amendment to the Constitution repealed the Eighteenth Amendment and the imposition of nationwide prohibition. U.S. Const, amend. XXI. Section 2 of the Amendment provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The effect of § 2 is to permit states to enact legislation more restrictive than would otherwise be permissible under the Commerce Clause. See U nited States v. Frankfort D istilleries, Inc., 324 U.S. 293, 300 (1945) (Frankfurter, J., concurring); 76 Cong. Rec. 4141, 4143 (1933) (statement of Sen. Blaine). That is to say, the Twenty-First Amendment permits states to go beyond non-discriminatory regulation based on their police powers4 and enact discriminatory regulation.5 However, early arguments that § 2 entirely de­ 2 A s reported o u t by the Committee on Energy and C om m erce o f the H ouse o f R epresentatives, § 5 o f H.R. 3870 w ould perm it any one to file civil su its to enjoin violations of § 2. The suits could be brought only in state court. 3 G iven the phraseology o f § 2 of H.R. 3870, w e have analyzed this b ill under the Com m erce Clause. We do not ad d ress th e federal governm ent’s p o w e r over alcohol arising under other portions of the C onstitution, such as the Export-Im port Clause, see Department o f Revenue v. James Beam Corp., 377 U.S. 341 (1964), or the Fourteenth A m en d m en t's requirem ent o f equal protection, see Craig v. Boren, 429 U S. 190 (1976). 4 F o r exam ple, p rio r to passage o f th e Eighteenth A m endm ent, the Suprem e C ourt rebuffed Commerce C lause challenges to several state statutes prohibiting en tirely the sale o r manufacture o f alcohol. The Court held th at the law s w ere valid exercises o f the states’ p olice power o v e r local com m erce even though their effects “may reach beyond the State b y lessening the am ount of intoxicating liquors exported." Kidd v. Pearson, 128 U .S. 1, 22 (1888). Seealso F oster v. Kansas, 112 U.S. 201, 206 (1884); Bartemeyer v. Iowa, 85 U .S. 129, 133 (1873); The License Cases, 4 6 U.S. (5 H ow .) 504, 57 6 -7 7 (1847) (Taney, C.J.). 5 T hus, state statutes th at regulate the entry o f alcohol in order to p rotect a state liquor monopoly. State Board v. Young's Market Co., 299 U.S. 59 (1936), o r to retaliate against other states’ discrim inatory laws, Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391 (1939), have been upheld even though such legislation “w ould obviously have b e en unconstitutional” in the absence of the Tw enty-First A mend­ m ent. State Board v. Young’s Market Co., 299 U.S. at 62. Prior to passage o f the Eighteenth A mendment, sim ilar discrim inatory statu tes barring th e entry o f alcohol into a state except under the auspices o f the state liqu o r m onopoly w ere struck down as an im perm issible burden on interstate com m erce. See, e.g., Vance v. W.A. Vandercook Co. (N o. 1), 170 U .S. 438 (1898); Scott v. Donald. 165 U.S. 58 (1897). The legislative histo ry o f § 2 indicates that it was passed, at least in part, to assure the “ dry” states that they would be able to defend th em selves against shipments o f alcohol into their states. 76 C ong. Rec. 4141 (1933). 54 prived the federal government of any authority under the Commerce Clause over alcohol were quickly rejected. United States v. Frankfort Distilleries, Inc., 324 U.S. 293,299 (1945); Jameson & Co. v. Morgenthau, 307 U.S. 171, 172-73 (1939).6 We believe that H.R. 3870 is constitutional for three reasons. First, we do not believe that H.R. 3870 violates the literal language of § 2 of the Twenty-First Amendment. Forbidding the sale of alcohol to those under 21 in a state that permits sales to those over, for example, the age of 18 is not “in violation of the laws” of the state. Id. It may replace a permissive state policy with a more restrictive federal statute, but it does so without literally violating a state statute.7 Thus, the ban on sale of alcohol to those under 21 raises questions under the Twenty-First Amendment only because some have assumed that broad federal deference to state action in this area is a matter of constitutional law rather than policy. Second, even assuming that H.R. 3870 were read to be “in violation” of a more permissive state law because the bill conflicts with the policy expressed by the state law, we believe that it would, under the balancing test articulated in the Supreme Court’s most recently decided case in this area, California Retail Liquor Dealers Ass 'n v. M idcal Aluminum, Inc., 445 U.S. 97, 108 (1980) (M idcal), pass constitutional muster because the federal interests would outweigh any particular state’s interest. M idcal involved a Sherman Act challenge to a California law governing wine pricing. In resolving whether the Sherman Act applied, the Supreme Court addressed the issue whether § 2 of the Twenty-First Amendment permit­ ted California to countermand the congressional policy in favor of competition. The Court emphasized that § 2 and the Commerce Clause must be viewed as part of a whole. ‘“ Like other provisions of the Constitution, each must be considered in light of the other, and in the context of the issues and interests at stake in any concrete case.’” Id. at 109 (quoting H ostetter v. Idlewild Liquor Corp., 377 U.S. 324, 331-32 (1964)). The focus of the analysis should be a “pragmatic effort to harmonize state and federal powers” that gives proper respect to both Clauses: 6 Id Jameson & Co. v. Morgenthau, the C ourt said: [T]he Federal Alcohol A dm inistration Act was attacked upon the ground that the Tw enty-First ■ Amendm ent to the Federal C onstitution gives to the States com plete and exclusive control over commerce in intoxicating liquors, unlim ited by the commerce clause, and hence that Congress has no longer authority to control the im portation o f these com m odities into the United States. W e see no substance in this contention. 307 U.S. at 172-73; see also H anfv. United States. 235 F.2d 710 (8th Cir.), cert . denied, 352 U.S. 880 (1956); Old Monastery Co. v. United States, 147 F 2 d 905 (4th C ir.), cert, denied, 326 U.S. 734 (1945); Jatros v. Bowles. 143 F.2d 453 (6th Cir. 1944); Arrow Distilleries, Inc. v. Alexander, 109 F.2d 397 (7th Cir), cert, denied, 310 U .S. 646 (1940) 7 T herefore, in states that do not forbid drinking under the age o f 18, H R. 3870’s passage w ill not oust a more perm issive state statute. The Fifth Circuit has read the T w enty-First Amendment as providing authority for perm issive state alcohol laws to override more restrictive federal regulations, notw ithstanding the Suprem acy C lause. Cf. Castlewood Int'l Corp. v. Simon, 596 F.2d 638 (5th Cir. 1979), vacated, 446 U.S. 949 (1980), opinion reinstated on remand, 626 F.2d 1200 (5th Cir. 1980) (Florida law perm itting sales at unlim ited discount to retailers prevailed over D epartm ent o f the Treasury regulation forbidding same; F lorida's interest in regulating intrastate retailers greater than federal interest in uniform national regula­ tions). See also Wine Indus, v. Miller. 609 F.2d 1167 (5th Cir. 1980); Washington Brewers Inst. v. United States. 137 F.2d 964 (9th Cir.), cert, denied, 320 U.S. 776 (1943). 55 [T]here is no bright line between federal and state powers over liquor. The Twenty-First Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Al­ though States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scru­ tiny of those concerns in a “concrete case.” M idcal, 445 U.S. at 110.8 The analysis of H.R. 3870 must begin, therefore, with an identification of the state and federal interests involved. States that already prohibit drinking by those under 21 have interests that coincide, at least presently, with the federal interests detailed in § 1 of H.R. 3870. The practical effect of the proposed bill would be to assist those states in enforcing their own laws by reducing the availability of alcohol in neighboring states that have more permissive laws. On the other hand, states that have drinking ages lower than 21 have presumably made a legislative determination that drinking by those over, for example, the age of 18 is permissible. The interests of these states may be described as protecting their separate decisions to permit access to liquor to those over 18.9 The federal government’s interest is, we assume, the economic injuries and resultant allocation of resources flowing in interstate commerce caused by 8 In Midcal, the C ourt identified the federal interest as the “fam iliar and substantial” one o f a national policy favoring com petition. 445 U.S. at 110. The state's interest in the resale price m aintenance statute had been identified by the C alifo rn ia Supreme C ourt as tw ofold: prom otion o f tem perance and orderly market conditions. Id. at 112. T hat same c o u rt had then found, how ever, that there was in fact little correlation betw een the statute and eith er tem perance or orderly m arket conditions. The U nited States Suprem e Court stated, in co n clu d in g that the federal in terests outw eighed state concerns. “ [w]e have no basis fo r disagreeing w ith the view o f the C alifornia courts th at the asserted state interests are less substantial than the national policy in fav o r o f com petition.” Id. at 113. 9 T here may also be states, particularly those w ith a m onopoly on liquor sales, that have an econom ic interest in prom oting sales to those o v er 18. T o the extent that states advance an econom ic interest, however, it seem s reasonable to assum e that the federal governm ent can dem onstrate that its econom ic interest in property and people probably outweighs w hatever the particular sta te 's individual interest is in revenue from potential sales. W e do not believe that th e exercise o f C ongress’ authority in this fashion under the Commerce C lause w ould be h eld to violate any state interest protected by the Tenth A mendment. The sale o f alcohol by a state m onopoly is not one o f the “integral governm ent functions,” National League o f Cities v. (Jsery, 426 U.S. 833, 855 (1976), protected by that Amendm ent from federal interference. See Ohio v. Helvering, 292 U.S. 360, 3 6 8 -6 9 (1934); South Carolina v. United States, 199 U.S. 437, 463 (1905). Both Ohio and South Carolina involved state challenges to federal taxes on the state liquor monopoly. The South Carolina Court held th at the sale o f liquor by a state m onopoly “ is o f a private nature” and not a governm ental function w hose taxation w ould “ im pede o r embarrass a State in the discharge o f its functions.” 199 U.S. at 463. This ruling was reaffirm ed in the Ohio case notw ithstanding passage o f the Tw enty-First Amendment: A d istinction is sought in the fact th a t after that case was decided the Eighteenth A mendment was passed, and thereby, it is contended, the traffic in intoxicating liquors ceased to be pnvate business, and then w ith the repeal o f the am endm ent assum ed a status which enables a state to carry it on under the police pow er. The point seem s to us altogether fanciful. The Eighteenth A m endm ent outlaw ed the traffic; but, certainly, it did not have the effect o f converting w hat had alw ays been a private activity in to a governm ental function. Ohio v. Helvering, 292 U .S. at 369. 56 drunk drivers under the age of 21. H.R. 3870, § 1. The loss of life, the crippling of individuals, the loss to production because of time lost from work, and the property damage caused by accidents involving such drunk drivers will, we assume, be detailed in H.R. 3870’s legislative history.10 Using M idcal 's bal­ ancing test, we believe that a court could find, assuming a sufficient legislative history, that the federal government’s interest in preventing damage to national commerce outweighed any particular state’s interest in permitting access to liquor for those under 21. Finally and, we believe, importantly, given that § 2 of the Twenty-First Amendment was intended to assure that states would be able to enact restrictive legislation retaining prohibition on a local level, 76 Cong. Rec. 4140-41 (1933), it would be anomalous if states could use § 2 to insist on permissive state laws that could frustrate federal efforts directed towards a limited form of temperance. Conclusion H.R. 3870 will not mandate importation of alcohol into any state in violation of its laws. Under the M idcal test, Congress could, we believe, articulate a federal interest that would outweigh a state’s interest in providing its citizens under the age of 21 access to alcohol. We therefore believe that H.R. 3870 will survive constitutional attack. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 10 W e assum e that the statistical evidence will be more persuasive than that presented to the Suprem e C ourt in Craig v. Boren, 429 U .S. 190 (1976), and rejected there as too tenuous. See id. at 200-04 (striking dow n state ban on sale o f 3.2 percent beer to males between the ages o f 18 and 21).

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(Slip Opinion) Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs Under the Controlled Substances Act, the Drug Enforcement Administration may register an applicant to cultivate marijuana only if the registration scheme is consist ent with the Single Convention on Narcotic Drugs. To comply with the Single Convention, DEA’s licensing framework must provide for a system in which DEA or its legal agent has physical possession and ownership over the cultivated marijuana and assumes control of the distribution of marijuana no later than four months after harvesting. June 6, 2018 MEMORANDUM OPINION FOR THE ACTING CHIEF COUNSEL DRUG ENFORCEMENT ADMINISTRATION Under the Controlled Substances Act, the Attorney General is authorized to license marijuana cultivation if he determines that it would be “consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.” 21 U.S.C. § 823(a). Such obligations include those under the Single Convention on Narcotic Drugs (“Single Convention”), Mar. 30, 1961, 18 U.S.T. 1407. As relevant here, the Single Convention requires parties either to prohibit marijuana cultivation altogether or, if they permit cultivation, to establish “a single government agency” to oversee marijuana growers and generally to monopolize the wholesale trade in the marijuana crop. Id. arts. 22, 23(3), 28(1). That single agency must strictly regulate any lawful cultivation of marijuana by, among other things, “purchas[ing] and tak[ing] physical possession of [the] crops as soon as possible, but not later than four months after the end of the harvest.” Id. art. 23(2)(d). This opinion considers whether the Drug Enforcement Administration (“DEA”), which exercises the Attorney General’s licensing authority, must alter existing licensing practices to comply with the Single Convention. At present, DEA does not purchase or take physical possession of lawfully grown marijuana at any point in the distribution process. Instead, the only currently licensed marijuana cultivator grows and distributes the marijuana itself pursuant to a contract with, and under the supervision of, the National Institute on Drug Abuse (“NIDA”), a component of the Department of Health and Human Services’ National Institutes of Health. In 2016, DEA revised this process and announced that it would increase the number of licensees and supervise the additional growers itself. 1 Opinions of the Office of Legal Counsel in Volume 42 See Applications To Become Registered Under the Controlled Substances Act To Manufacture Marijuana To Supply Researchers in the United States, 81 Fed. Reg. 53,846, 53,848 (Aug. 12, 2016) (“Applications To Manufacture Marijuana”). Under the new policy, DEA would not purchase or possess the marijuana before licensees distributed it to government-approved researchers. Several entities have applied for licenses under the new policy, but no applications have been approved. We conclude that DEA must change its current practices and the policy it announced in 2016 to comply with the Single Convention. DEA must adopt a framework in which it purchases and takes possession of the entire marijuana crop of each licensee after the crop is harvested. In addition, DEA must generally monopolize the import, export, wholesale trade, and stock maintenance of lawfully grown marijuana.1 There may well be more than one way to satisfy those obligations under the Single Convention, but the federal government may not license the cultivation of marijuana without complying with the minimum requirements of that agreement. I. The Single Convention entered into force for the United States on June 24, 1967, after the Senate had given its advice and consent to the United States’ accession. See Single Convention, 18 U.S.T. 1407. The Convention requires parties to impose stringent controls on the cultivation, manufacture, and distribution of narcotic drugs, including “cannabis,” which it defines as “the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the 1 In preparing this opinion, we considered the views of DEA, the Office of the General Counsel of the Department of Health and Human Services, and the Department of State’s Office of the Legal Adviser. See Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,846–48 (discussing requirements of the Single Convention applicable to licensing marijuana cultivation); Lyle E. Craker, PhD, 76 Fed. Reg. 51,403, 51,409–11 (DEA Aug. 18, 2011) (same); Lyle E. Craker, 74 Fed. Reg. 2101, 2114–18 (DEA Jan. 14, 2009) (same); Memorandum for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Matthew S. Bowman, Deputy General Counsel, Department of Health and Human Services (Apr. 13, 2018) (“HHS Mem.”); Office of Law Enforcement and Intelligence and Office of Treaty Affairs, Single Convention Analysis (Jan. 29, 2018) (“State Mem.”); Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Jennifer G. Newstead, Legal Adviser, Department of State (Apr. 17, 2018) (“State Supp. Mem.”). 2 Licensing Marijuana Cultivation resin has not been extracted, by whatever name they may be designated.” Single Convention art. 1(1)(b). Parties must, among other things, establish quotas on the import and manufacture of cannabis, generally prohibit the possession of cannabis, and adopt penal provisions making violations of those controls punishable offenses. Id. arts. 21, 33, 36. Article 28 of the Single Convention requires that any lawful cultivation of the cannabis plant be subject to the same system of strict controls “as provided in article 23 respecting the control of the opium poppy.” Id. art. 28. The cross-referenced provisions in Article 23 provide as follows: 1. A Party that permits the cultivation of the opium poppy for the production of opium shall establish, if it has not already done so, and maintain, one or more government agencies (hereafter in this article referred to as the Agency) to carry out the functions required under this article. 2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to opium: a. The Agency shall designate the area in which, and the plots of land on which, cultivation of the opium poppy for the purpose of producing opium shall be permitted. b. Only cultivators licensed by the Agency shall be authorized to engage in such cultivation. c. Each license shall specify the extent of the land on which the cultivation is permitted. d. All cultivators of the opium poppy shall be required to deliver their total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest. e. The agency shall, in respect of opium, have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers of opium alkaloids, medicinal opium, or opium preparations. Parties need not extend this exclusive right to medicinal opium and opium preparations. 3 Opinions of the Office of Legal Counsel in Volume 42 3. The governmental functions referred to in paragraph 2 shall be discharged by a single government agency if the constitution of the Party concerned permits it. The agency’s “exclusive right[s]” over the harvested marijuana need not extend to “medicinal” marijuana or marijuana “preparations,” but the national cannabis agency must still purchase and take physical possession of all marijuana grown for such purposes. Id. art. 23(2)(d)(e); see Report of the International Narcotics Control Board for 2014, at 35 (Mar. 3, 2015) (“2014 INCB Report”); Secretary-General of the United Nations, Commentary on the Single Convention on Narcotic Drugs, 1961, at 284, 314 (1973) (“Commentary”).2 Three years after the United States acceded to the Single Convention, Congress in 1970 enacted the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq., “a comprehensive statute designed to rationalize federal control of dangerous drugs.” Nat’l Org. for Reform of Marijuana Laws (NORML) v. DEA, 559 F.2d 735, 737 (D.C. Cir. 1977). “[A] number of the provisions of [the CSA] reflect Congress’ intent to comply with the obligations imposed by the Single Convention.” Control of Papaver Bracteatum, 1 Op. O.L.C. 93, 95 (1977); see, e.g., 21 U.S.C. §§ 801(7), 811(d)(1), 958(a); see also S. Rep. No. 91-613, at 4 (1969) (“The United States has international commitments to help control the worldwide drug traffic. To honor those commitments, principally those established by the Single Convention on Narcotic Drugs of 1961, is clearly a Federal responsibility.”). The CSA imposes strict controls on marijuana, which is defined to include “all parts of the plant Cannabis sativa L.” and all compounds and derivatives thereof, with certain exceptions not relevant here. 21 U.S.C. § 802(16). The statute classifies marijuana as a schedule I substance, the most stringent classification available, reflecting a determination that marijuana “has a high potential for abuse” and “no currently accepted medical use.” 21 U.S.C. § 812(b); see Craker v. DEA, 714 F.3d 17, 19 (1st Cir. 2013); 21 C.F.R. § 1308.11. The CSA makes the unauthorized The United Nations’ Economic and Social Council requested that the SecretaryGeneral prepare the Commentary “in the light of the relevant conference proceedings and other material” in order to aid governments in applying the Single Convention. Economic and Social Council Resolution 1962/914(XXXIV)D (Aug. 3, 1962). 2 4 Licensing Marijuana Cultivation possession, manufacture, and distribution of marijuana a crime punishable by severe penalties. 21 U.S.C. §§ 841, 844. Although federal law recognizes no currently accepted medical use for marijuana, see United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 491 (2001), it does permit the cannabis plant to be cultivated lawfully for research purposes pursuant to a DEA license. See 21 U.S.C. §§ 822(a)(1), 823(a); 21 C.F.R. pt. 1301.3 Since its founding in 1973, DEA has licensed only one such grower to supply researchers with marijuana—the National Center for Natural Products Research (“National Center”), a division of the University of Mississippi. See Lyle E. Craker, 74 Fed. Reg. at 2104; Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,846. The National Center cultivates marijuana pursuant to a contract administered by NIDA. Besides overseeing the cultivation of marijuana, NIDA also plays a role in determining which researchers may obtain marijuana for medical or scientific use. See 21 U.S.C. § 823(f ); Announcement of Revision to the Department of Health and Human Services Guidance on Procedures for the Provision of Marijuana for Medical Research as Published on May 21, 1999, 80 Fed. Reg. 35,960 (June 23, 2015). The current contract between NIDA and the National Center, which became effective on March 23, 2015, provides that the National Center will, among other things, “cultivate and harvest, process, analyze, store, and distribute cannabis . . . for research.” Award/Contract Issued by Nat’l Inst. on Drug Abuse, to the University of Mississippi, Contract No. HHSN271201500023C, at 4 (effective Mar. 23, 2015) (“2015 NIDA Contract”). The National Center must also “[p]rovide an adequate DEA approved storage facility” for the harvested cannabis and may ship it to researchers only “as required by NIDA.” Id. at 17. All work under the contract is to be “monitored” by the Government Contracting Officer’s Representative, an employee at NIDA’s headquarters in Bethesda, Maryland. Id. at 16, 34. The contract requires the NIDA representative to monitor technical progress based on the National Center’s monthly progress reports, to evaluate the National Center’s work, to perform technical evaluations and inspections of a sample of the marijuana shipped to NIDA, and to assist in resolving technical problems. Id. at 17, 26, 34. 3 Sections 822(a) and 823(a) vest authority over registration for such licenses in the Attorney General. Pursuant to 21 U.S.C. § 871(a), the Attorney General delegated this function to DEA. 28 C.F.R. § 0.100(b). 5 Opinions of the Office of Legal Counsel in Volume 42 In 2016, in response to increasing public interest in marijuana research, DEA announced a new policy reflecting its intention to increase the number of federally authorized growers. See Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,846–48. Under the new policy, a grower, if approved for a license, would “be permitted to operate independently, provided the grower agrees (through a written memorandum of agreement with DEA) that it will only distribute marijuana with prior, written approval from DEA.” Id. at 53,848. NIDA would not be involved in monitoring the additional licensees. We understand that DEA has several currently pending requests from entities that seek to register as marijuana growers under that policy. II. Under the CSA, DEA may register an applicant to cultivate marijuana only if the registration scheme is consistent with the Single Convention. We address whether DEA’s practices and policy for licensing marijuana cultivation comply with the Single Convention and, if not, what changes DEA must make to conform to the treaty. A. An international agreement has the force of domestic U.S. law if it is self-executing or if Congress has implemented it by legislation. See Medellín v. Texas, 552 U.S. 491, 504–05 (2008). Here, Congress has executed the Single Convention in the CSA. In that Act, Congress provided that the Attorney General “shall” license the cultivation of marijuana “if he determines that such registration is consistent with . . . United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.” 21 U.S.C. § 823(a).4 The Attorney General is thus required to determine that the licensing scheme is consistent with the Single Convention before exercising his authority to register an applicant to cultivate marijuana. See Control of Papaver Bracteatum, 1 Op. O.L.C. at 99; Memorandum for John E. Ingersoll, Director, Bureau of Narcotics and Dangerous Drugs, from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, Petition to Decontrol Marihuana— 4 The Single Convention was amended by a 1972 protocol, but the amendments are not material to the obligations discussed in this opinion. See Protocol Amending the Single Convention on Narcotic Drugs, Mar. 25, 1972, 26 U.S.T. 1439. 6 Licensing Marijuana Cultivation Interpretation of Section 201 of the Controlled Substances Act of 1970, at 4 (Aug. 21, 1972) (“[I]n making determinations as to the fitness of registrants to receive licenses for manufacture or export and import of controlled substances, the Attorney General is instructed to ensure consistency ‘with United States obligations under international treaties.’”). Article 23(2) of the Single Convention, made applicable to marijuana cultivation by Article 28, contains five requirements for the supervision, licensing, and distribution of marijuana. See Single Convention art. 23(2)(a)–(e). Under current regulations and practice, DEA satisfies the first three requirements. The Convention specifies that the agency must designate the land on which cannabis cultivation is permitted, limit cultivators to those licensed by the agency, and specify the extent of the land on which cultivation is permitted. Id. art. 23(2)(a), (b), (c). Federal regulations implement those requirements by mandating that a marijuana manufacturer obtain a DEA license annually for each physical location at which marijuana is grown. 21 U.S.C. § 822(a)(1); 21 C.F.R §§ 1301.11(a), 1301.12(a). DEA establishes annual production quotas for lawful marijuana cultivation, and it has exercised that authority by setting the annual quotas for the National Center, the only entity ever registered by DEA to grow marijuana to supply researchers in the United States. 21 U.S.C. § 826; 21 C.F.R. § 1303.11. DEA has ample authority under this framework to specify the areas and circumstances under which a licensee may cultivate marijuana and in fact satisfies the first three requirements of Article 23(2) of the Single Convention in registering applicants under the CSA pursuant to those requirements. Article 23 of the Single Convention also imposes control requirements beyond those currently carried out by DEA. Under Article 23(2)(d), “all cultivators shall be required to deliver their total crops” to the agency, and the agency “shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.” Article 23(2)(e) requires the agency to “have the exclusive right of importing, exporting, wholesale trading and maintaining stocks.” The United States currently attempts to comply with those requirements through NIDA’s contract with the National Center, under which NIDA’s contracting officials supervise the National Center’s cultivation of marijuana and distribution of marijuana to researchers. Article 23’s final requirement, however, provides that the “governmental functions” in Article 23(2) must be “discharged by a single government agency if the constitution of the Party concerned permits it.” Single Convention art. 23(3). 7 Opinions of the Office of Legal Counsel in Volume 42 We conclude that the existing licensing framework departs from Article 23 in three respects. First, the division of responsibilities between DEA and NIDA, a component of the Department of Health and Human Services (“HHS”), contravenes Article 23(2)’s requirement that all Article 23 functions be carried out by a single government agency. Second, neither of the two government agencies “take[s] physical possession” of the marijuana grown by the National Center, as required by Article 23(2)(d). Third, no federal agency exercises a monopoly over the wholesale trade in marijuana, as required by Article 23(2)(e). We discuss each departure in turn. 1. Current practice diverges from the Single Convention’s requirement that a single agency undertake each of the listed control functions unless the constitution of the treaty party forbids it. As explained, DEA is responsible for the controls required by Article 23(2)(a), (b), and (c) because it effectively designates the area where marijuana cultivation is permitted, limits cultivators to those licensed by the agency, and speci fies the extent of the land on which cultivation is permitted. NIDA, for its part, attempts to satisfy the physical-possession and governmentmonopoly-control requirements of Article 23(2)(d) and (e) by supervising cultivation under its contract with the National Center. That division of authority is contrary to Article 23(3), because nothing in the Constitution would preclude the United States from discharging all of those controls through one government agency. DEA agrees that “the United States fails to adhere strictly” to the single government agency provision because “both DEA and HHS carry out certain functions set forth in article 23, paragraph 2.” Lyle E. Craker, PhD, 76 Fed. Reg. at 51,409.5 For the current framework to be in compli- 5 Members of Congress and the American Bar Association have also recognized that the division of regulatory responsibilities among federal agencies fails to comply with the Single Convention. See 129 Cong. Rec. 7434 (Mar. 24, 1983) (Rep. McKinney) (recognizing that the current division of responsibilities is in “violation of the [S]ingle [C]onvention” and introducing a bill that would create an “Office for the Supply of Internationally Controlled Drugs” within the Department of Health and Human Services to “comply[] with the [S]ingle [C]onvention on [N]arcotic [D]rugs”); Report No. 1 of the Section of Administrative Law, 109 Ann. Rep A.B.A. 447, 482 (1984) (noting that the Single Convention “requires that a single government agency license all domestic pro- 8 Licensing Marijuana Cultivation ance with the single-agency requirement of the treaty, we would have to view NIDA as performing the physical-possession and governmentmonopoly functions on behalf of DEA. See State Mem. at 5. But we do not believe that NIDA acts for DEA, and it is unlikely that DEA could lawfully supervise NIDA in the performance of its functions. We are aware of no statute that gives DEA that authority. And the President may not delegate to DEA his constitutional authority to supervise NIDA in the exercise of its statutory responsibilities. See Centralizing Border Control Policy Under the Attorney General, 26 Op. O.L.C. 22, 24–25 (2002). 2. We turn next to the requirement that the single government agency “purchase and take physical possession” of the marijuana. Single Convention art. 23(2)(d). As noted above, NIDA contracts with, and partially oversees, the cultivation of marijuana by the National Center, which is licensed by DEA. But under that contractual arrangement, neither NIDA nor DEA takes physical possession of the marijuana. Rather, the National Center itself stores the marijuana on the premises of the University of Mississippi and ships it to researchers approved by DEA. Neither NIDA nor DEA accepts delivery of the harvested crops. That contractual arrangement does not satisfy the United States’ obligations under Article 23(d). The contract at most results in a federal government agency’s having constructive, rather than physical, possession of the marijuana crop. a. The Single Convention does not define “physical possession.” In construing that term we should “begin with the text of the treaty and the context in which the written words are used.” Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508–09 (2017) (internal quotation marks omitted); see also Restatement (Third) of the Foreign Relations Law of the United States § 325(1) (Am. Law Inst. 1987) (“Restatement of Foreign Relations”) (“An international agreement is to be interpreted in good faith according to the ordinary meaning to be given to its terms in their context and in light of its object and purpose.”); Vienna Convention on the Law of duce[r]s of marijuana, specify the particular plots of land on which it is to be grown, and collect the crops of all domestic producers of marijuana” and that “at present the authority to control marijuana production is split between” government agencies). 9 Opinions of the Office of Legal Counsel in Volume 42 Treaties art. 31(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331(“Vienna Convention”) (similar).6 We think it evident from the treaty’s text and context that “physical possession” requires growers licensed under the CSA to transfer the crops to the physical, and not merely legal, control of the federal government. Article 23(2)(d) says that “cultivators” must “deliver their total crops” to the government—a clear indication that the treaty contemplates the physical transfer of control from one party to another. The Single Convention’s Commentary reinforces that point in emphasizing that “the time between the harvest and delivery of the crop should be as short as possible” and recommending that parties “set a final date after which possession of harvested [crops] by a private cultivator is in any event illegal and [the crop] subject to confiscation.” Commentary at 283 (emphasis added). And this understanding of the words used in the Single Convention is further confirmed by the decisions of U.S. courts, which have consistently distinguished constructive possession from physical possession, with the latter requiring direct physical control over the item in question.7 One might argue that NIDA, through its contract, satisfies the treaty requirements of physical possession via the pervasive influence and control NIDA exercises over the National Center’s cultivation operations. See State Mem. at 5; State Supp. Mem. at 2. NIDA’s contract does provide that the National Center serves as “NIDA’s cannabis drug repository.” 2015 NIDA Contract at 16. DEA regulations also include detailed specifications for the material, size, and accessibility of the storage facility. See 21 C.F.R. §§ 1301.71–1301.76. The contract further specifies particular temperatures for the storage facility and notes that “[l]ocal DEA agents will determine the exact type of security required.” 2015 NIDA 6 The United States is not a party to the Vienna Convention, but this Office has relied on Article 31 as generally reflecting customary international law and practice. See Interpretation of Article 17 Bis of the US-EU Air Transport Agreement, 40 Op. O.L.C. __, at *5 (Apr. 14, 2016); “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention, 28 Op. O.L.C. 35, 53 n.21 (2004). 7 See, e.g., United States v. Hunter, 558 F.3d 495, 503–04 (6th Cir. 2009) (“Actual possession exists when an individual knowingly has direct physical control over a thing at a given time[.]”); United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (defining “actual possession” as “physical possession or . . . actual personal dominion over the thing allegedly possessed”); United States v. Raper, 676 F.2d 841, 848 (D.C. Cir. 1982) (finding constructive possession even though the drugs were in another’s “physical possession”); United States v. Moreno, 649 F.2d 309, 313 (5th Cir. Unit A June 1981) (same). 10 Licensing Marijuana Cultivation Contract at 17. And the contract provides for federal monitoring of compliance by the NIDA representative, although that supervision occurs primarily from NIDA’s headquarters in Bethesda, Maryland. Id. at 16, 26, 34. But the control that NIDA exercises through these contractual provisions amounts at most to constructive possession of the marijuana, and is thus insufficient to meet the treaty requirement of physical possession by the federal government. In particular, this requirement demands that the government have physical control over the crop. Because a government acts through its agents, that mandate means the marijuana must be delivered to government agents who must have personal and direct physical access to the crops in question, and not simply the ability or power to obtain access to them. b. It could be argued that the National Center’s employees are acting as federal government agents, and that the federal government physically possesses marijuana grown by the National Center through those employees. But in a similar context, for purposes of asking whether the federal government is liable for the actions of a contractor under the Federal Tort Claims Act, the Supreme Court has emphasized that requiring compliance with “federal standards and regulations” or contract terms that “fix specific and precise conditions to implement federal objectives” does not suffice to “convert the acts of [contractors] into federal governmental acts.” United States v. Orleans, 425 U.S. 807, 815–16 (1976). A contractor’s employees may become federal agents only if the government has the authority “to control the detailed physical performance of the contractor” and supervise its “day-to-day operations.” Id. at 814–16 (internal quotation marks omitted). For analogous reasons, the National Center’s employees are not agents of the federal government. The parameters of the contract do not provide for DEA or NIDA to supervise closely the day-to-day physical operations of the National Center’s distribution and storage functions. And the NIDA contract disavows the notion that it creates an agency relationship. It provides that the National Center operates “[i]ndependently, and not as an agent of the Government” and, further, that the National Center “shall be required to furnish all necessary services, qualified personnel, materials, equipment, and facilities, not otherwise provided by the Government.” 2015 NIDA Contract at 15 (emphasis added). There is simply no indica11 Opinions of the Office of Legal Counsel in Volume 42 tion that the federal government, rather than the National Center, exercises the kind of close supervision of the National Center’s employees that would make them federal agents. We are also not persuaded by a similar line of argument contending that the National Center “could be considered an extension of ” the federal government. Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,847. The suggestion is that the National Center itself operates as the federal government in carrying out the controls required by the Single Convention. The question of whether an entity is part of the federal government turns on a variety of factors, including whether the government owns the entity; whether the government appoints its officers and directors; whether Congress has defined its corporate purposes or appropriated funds for its operations; and whether the entity is controlled by or operates for the benefit of the federal government. See Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 51–55 (2015); United States v. New Mexico, 455 U.S. 720, 739–40 (1982); Memorandum for Edward A. Frankle, General Counsel, National Aeronautics & Space Administration, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of Government Corporation Control Act to Gain Sharing Benefit Agreement at 7–9 (Sept. 18, 2000). Under those factors, the National Center is not an extension of the federal government. The National Center is part of the University of Mississippi, located on campus in a university-owned building, and run by its own employees. It does not operate solely for a federal purpose, but instead was established to help the University conduct “research to discover and develop natural products for use as pharmaceuticals, dietary supplements and agrochemicals, and to understand the biological and chemical properties of medicinal plants.” National Center for Natural Products Research, About NCNPR, https://pharmacy.olemiss.edu/ncnpr/ about-ncnpr/ (last visited June 6, 2018). While the federal government pays the National Center to grow marijuana and exercises some supervision over its growing operations, the government does not generally fund or control the National Center. That the National Center may physically possess the marijuana it grows, then, does not satisfy the federal government’s obligation to do so.8 8 The Supreme Court has cautioned against applying “background principle[s] of American law” that are “relevant to the interpretation of federal statutes” but were not necessarily adopted by the signatories to a treaty (for example, the presumption in favor 12 Licensing Marijuana Cultivation c. In addition to taking “physical possession,” Article 23(2)(d) requires that the national agency “purchase” the marijuana from the cultivator. That requirement provides for the government to pay for and take legal title to the marijuana. The Commentary advises that the payment of money was meant to encourage the delivery of the crops because “[p]rompt payment, a good price and other favourable conditions of purchase may be incentives to producers to deliver speedily their total” crops to the agency. Commentary at 283. The exchange of payment for the harvested crops encourages each grower to deliver its full inventory to the government. Neither NIDA nor DEA “purchases” the harvested crops from the National Center, but it could be said that NIDA does not need to do so if it already has title to the marijuana. See State Mem. at 4–5; HHS Mem. at 5–6. Although the contract between NIDA and the National Center includes some provisions discussing government property, they do not expressly address or otherwise make clear where title to the marijuana crops lies.9 But we need not decide whether NIDA has title to the crops. The requirement that the federal government physically possess the marijuana crops is distinct from the requirement that it “purchase” the crops and thus secure title. See Single Convention art. 23(d). Physical possession is not conferred by mere “transfer of title or risk of loss.” In re World Imports, Ltd., 862 F.3d 338, 344 (3d Cir. 2017) (interpreting the Bankruptcy Code’s reference to “receipt of goods” as requiring “physical of equitable tolling of federal statutes of limitations). Lozano v. Montoya Alvarez, 572 U.S. 1, 12 (2014). Here, we have sought help from analogies drawn from U.S. law to interpret the Single Convention “in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of its object and purpose.” Restatement of Foreign Relations § 325(1). 9 The current NIDA contract incorporates a clause of the Federal Acquisition Regulation dealing with government title to property. 2015 NIDA Contract at 55. That clause states that “[t]itle to property (and other tangible personal property) purchased with funds available for research and having a unit acquisition cost of less than $5,000 shall vest in the Contractor upon acquisition or as soon thereafter as feasible; provided that the Contractor obtained the Contracting Officer’s approval before each acquisition .” 48 C.F.R. § 52.245-1 Alternate II (2012). If the unit acquisition cost is $5,000 or more, title vests “as set forth in this contract.” Id. The application of this clause to marijuana the contractor grows rather than purchases is ambiguous and the contract does not otherwise expressly address title to the crops. 13 Opinions of the Office of Legal Counsel in Volume 42 possession”); see Matter of Brio Petroleum, Inc., 800 F.2d 469, 472 (5th Cir. 1986) (same); Matter of Marin Oil, Inc., 740 F.2d 220, 225 (3d Cir. 1984) (same). Moreover, DEA certainly does not have title to the crops. Even if NIDA had formal legal title to the crops, the current arrangement would still have to be adjusted to comply with the treaty’s requirements that a single government agency be charged with licensing cultivators, purchasing, and physically possessing the crops. In the course of making those adjustments, DEA could enter into a contract that expressly states that it owns the marijuana crops, should the agency seek to obviate the need for a purchase and claim ownership in the marijuana from its inception, rather than buying back the crops shortly after the harvest. 3. Finally, we do not believe that the current arrangement provides for the federal government to exercise “the exclusive right of importing, exporting, wholesale trading and maintaining stocks” in the drug, as required by Article 23(2)(e). DEA has authority to control the lawful distribution of the crops in certain respects. But just as with the physical possession requirement, the Single Convention contemplates that the government monopoly will involve more than the exercise of regulatory authority. The Commentary on the Convention stresses that wholesale trade “must be undertaken by governmental authorities,” rather than private parties, because of the risk of diversion. Commentary at 278. The Convention contemplates an actual “monopoly,” id. at 284, i.e., “[t]he market condition existing when only one economic entity produces a particular product or provides a particular service.” Black’s Law Dictionary 1160 (10th ed. 2014). The government agency responsible for the relevant controls must own the crops and be the sole distributor of the marijuana. In allowing the National Center to maintain possession of the marijuana and ship it to DEA-approved researchers, the NIDA contract does not create the required government monopoly over the lawful marijuana trade.10 10 The government monopoly need not extend to “medicinal” marijuana. Single Convention art. 23(e). But that exception is not available under current federal law. As noted above, the federal government has not recognized any accepted medical use for marijuana. See Oakland Cannabis Buyers’ Co-op., 532 U.S. at 491. As a result, “there is currently no such thing in the United States as ‘medicinal cannabis’” for purposes of the Single Convention. Lyle E. Craker, 74 Fed. Reg. at 2116. Moreover, anyone who wished to produce medicinal marijuana or marijuana preparations would still be required to pur- 14 Licensing Marijuana Cultivation For the reasons discussed above, the National Center does not play the role of the government monopolist. See supra Part II.A.2.b. Indeed, that conclusion is buttressed here by a constitutional concern. If the National Center were viewed as exercising significant authority in establishing a federal government monopoly over the lawful distribution of marijuana, in conformity with the international obligations of the United States, its officials might be viewed as officers of the United States, who would need to be appointed consistent with the Appointments Clause. See Ass’n of Am. Railroads, 575 U.S. at 55–56; Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 87–93, 100– 110, 121 (2007). If any National Center officials were officers of the United States, they would have to be appointed either by the President with the advice and consent of the Senate, or, pursuant to statutory authority, by a court of law, a department head, or the President alone. See U.S. Const. art. II, § 2, cl. 2. We are not aware that any National Center officials are so appointed, but because, as discussed above, we do not believe that the National Center is exercising the sovereign authority of the United States, such concerns do not arise. B. Even if the current framework departs from Article 23, it would still comply with the Convention if it satisfied Article 39, which provides that, “[n]otwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention.” We therefore must consider whether the NIDA contract system may be viewed as resulting in a “more strict or severe” system of controls than one where the government physically possesses the marijuana crops and monopolizes their distribution. See State Mem. at 4–6. Article 39 permits a party to the Single Convention to impose substitute measures that result in tighter controls than those otherwise required. See Commentary at 449. But as the Commentary explains, such “substitute measures should clearly be ‘more strict or severe’ to prevent any . . . doubts” about their validity. Id. (emphasis added). As examples of “[p]ermissible substitute controls,” the Commentary identifies “the prohibition chase cannabis stocks from the national cannabis agency that purchases and takes physical possession of the marijuana crop grown by licensees. See Commentary at 284. 15 Opinions of the Office of Legal Counsel in Volume 42 of manufacture of and trade in certain drugs instead of subjecting them to a system of licensing, or the imposition of the death penalty in place of ‘imprisonment or other penalties of deprivation of liberty.’” Id. at 449–50. The close regulation of the National Center is not clearly more strict or severe than the controls in Articles 23 and 28. The Office of the Legal Adviser points out that the NIDA contract, unlike the controls required by Article 23(2), addresses the risk of diversion during the cultivation process in addition to diversion that may occur after the crops are harvested. See State Mem. at 5; State Supp. Mem. at 1.11 For example, the National Center must maintain its registration for working with scheduled drugs, 2015 NIDA Contract at 13, which requires certain security measures for manufacturing activities, see, e.g., 21 C.F.R. § 1301.73(b) (“Manufacturing activities with controlled substances shall be conducted in an area or areas of clearly defined limited access which is under surveillance by an employee or employees designated in writing as responsible for the area.”). As effective as those contractually imposed diversion controls may be during marijuana cultivation, however, we cannot say that they clearly compensate for the absence of the required controls governing the trade in the crops, which the treaty drafters evidently believed posed greater risks of diversion. The controls required by Article 23 of the Single Convention reflect the specific concern that “experience has shown that permitting licensed private traders to purchase the crops results in diversion of large quantities of drugs into illicit channels.” Commentary at 278. The treaty drafters thus concluded that “the acquisition of the crops and the wholesale and international trade in these agricultural products cannot be entrusted to private traders, but must be undertaken by governmental authorities in the producing countries.” Id. The Commentary then explains that pursuant to Article 23 “[f ]armers should be required to deliver the opium as soon as the Agency requests it, that is, is in a position to take physical possession of the crops of the cultivator concerned. . . . The Convention not only requires that the Agency should take physical possession of the The Office of the Legal Adviser suggests that DEA’s framework is also stricter than required by the Single Convention because DEA establishes annual quotas for the National Center’s marijuana production. See State Mem. at 1, 5. But those quotas not only indirectly implement the requirements in Article 23(2) for the national cannabis agency to designate the land on which cultivation is permitted, see Commentary at 281, but also directly implement Article 21 of the Convention, which requires parties to limit the annual quantity of drugs lawfully manufactured and imported. DEA’s quotas are therefore not more strict or severe than the Single Convention otherwise requires. 11 16 Licensing Marijuana Cultivation opium, but also that it should ‘purchase’ it as soon as possible.” Id. at 283. In other words, allowing the National Center, rather than the federal government, to distribute marijuana replicates in critical respects a system that the drafters rejected as inadequate, not one that they would have seen as “clearly more strict.” We also believe that reliance upon Article 39 here would be hard to reconcile with other provisions in the Single Convention that expressly provide parties with discretion to impose appropriate controls. For example, Article 28(3) gives parties discretion “to adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”12 See also Single Convention art. 2(8) (requiring parties to “use their best endeavours to apply . . . such measures of supervision as may be practicable” to substances that “may be used in the illicit manufacture of drugs”); id. art. 30(2)(b)(ii) (stating that parties should require that prescriptions for Schedule I drugs be written on official forms “[i]f the Parties deem these measures necessary or desirable”); id. art. 30(4) (stating that parties should require certain drug wrappings if the parties “consider[] such measure necessary or desirable”). Article 23 and the remaining provisions of Article 28, however, require a party to adopt very specific controls over the cultivation of marijuana (aside from the leaves of the plant) and do not give discretion to choose alternative means, simply because the party believes in good faith that the controls will accomplish the same purpose. Article 39 thus permits parties to depart from the specific controls mandated only where the alternatives are plainly more “strict or severe.” The existing licensing scheme falls short of that standard. C. In considering the appropriate interpretation of the Single Convention, we have reviewed the statements and practice of the International Narcotics Control Board (“INCB”), the international body established by the Single Convention to monitor treaty compliance, which we understand has not objected to the United States’ licensing scheme. While the interpretation of a body charged with monitoring treaty implementation may 12 As noted above, the Single Convention’s definition of cannabis does not include the leaves when unaccompanied by the top of the plant. Single Convention art. 1(1)(b). The CSA’s definition of marijuana, by contrast, includes the leaves. 21 U.S.C. § 802(16). 17 Opinions of the Office of Legal Counsel in Volume 42 sometimes help in resolving ambiguities in the treaty’s text, such views are not authoritative interpretations of the treaty or legally binding on the United States or other parties.13 Here, the INCB’s failure to object reveals little. The INCB’s mandate does not require it to note every instance of noncompliance. Rather, the INCB is charged with identifying situations in which the Convention’s aims “are being seriously endangered by reason of the failure of any Party, country or territory to carry out [its] provisions.” Single Convention art. 14(1)(a). In fulfilling this mandate, the INCB has, for example, objected to “the legalization of the production, sale and distribution of cannabis for non-medical and non-scientific purposes in the states of Alaska, Colorado, Oregon and Washington.” 2014 INCB Report at 25. But the fact that the INCB has not objected to the federal licensing scheme does not mean that the INCB views that framework as complying with the Single Convention. Indeed, the INCB’s interpretation of the Single Convention appears entirely consistent with ours. For instance, the INCB’s 2014 annual report advises that “States wishing to establish programmes for the use of cannabis for medical purposes that are consistent with the requirements of the Single Convention must establish a national cannabis agency to control, supervise and license the cultivation of cannabis crops.” Id. at 35. The national cannabis agency must “purchase and tak[e] physical possession of crops” and maintain “the exclusive right of wholesale trading and maintaining stocks.” Id. While the INCB has not expressly objected to the United States’ licensing scheme, it has “note[d] that the control measures in place under many existing programmes in different countries fall short of the requirements set out above.” Id. at 36. We do not infer from the INCB’s silence any affirmative approval of the existing licensing scheme or the licensing schemes of other countries. 13 See INS v. Aguirre-Aguirre, 526 U.S. 415, 427–28 (1999) (guidance issued by the Office of the UN High Commissioner for Refugees regarding the interpretation of the Refugee Convention “may be a useful interpretative aid, but it is not binding on the Attorney General, the [Board of Immigration Appeals], or United States courts”); Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9, 2014 Digest of United States Practice in International Law ch. 6, § A(2)(b), at 179 (“The United States believes the views of the Committee should be carefully considered by the States Parties. Nevertheless, they are neither primary nor authoritative sources of law.”). 18 Licensing Marijuana Cultivation D. We have also reviewed information about executive branch practice and the practice of other state parties to the Single Convention. As we have observed, the Executive Branch has long licensed the National Center to grow marijuana without having a single government agency purchase and take physical possession of the cannabis crops after harvest. A number of other state parties to the Single Convention apparently follow the U.S. practice. See State Mem. at 6–7; State Supp. Mem. at 3. The practice of the Executive Branch and other state parties is relevant in treaty interpretation. Courts “find particularly persuasive a consistent pattern of Executive Branch interpretation, reflected in the application of the treaty by the Executive and the course of conduct of the parties in implementing the agreement.” Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 36 (1987) (citing O’Connor v. United States, 479 U.S. 27, 32–33 (1986)); see also Vienna Convention art. 31(3)(b) (noting that, “together with the context,” treaty interpretation should take into account “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”). The practices of a treaty’s parties can also be useful evidence of the parties’ “understanding of the agreement they signed.” United States v. Stuart, 489 U.S. 353, 369 (1989); see Medellín, 552 U.S. at 507. But as the Supreme Court has explained, “where the text [of a treaty] is clear . . . we have no power to insert an amendment.” Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) (holding that the text of the Warsaw Convention controlled where it could not “be dismissed as an obvious drafting error”).14 Here, Articles 23 and 28 clearly require that the United 14 See Water Splash, 137 S. Ct. at 1511 (“[W]hen a treaty provision is ambiguous, the Court may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” (internal quotation marks omitted)); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534–35 (1991) (explaining that treaty interpretation begins “with the text of the treaty and the context in which the w ritten words are used,” while “[o]ther general rules of construction may be brought to bear on difficult or ambiguous passages” (internal quotation marks omitted)); United States v. Jeong, 624 F.3d 706, 711 (5th Cir. 2010) (“Only if the language of a treaty, when read in the context of its structure and purpose, is ambiguous may we resort to extraneous information like the history of the treaty, the content of negotiations concerning the treaty, and the practical construction adopted by the contracting parties.” (internal quotation 19 Opinions of the Office of Legal Counsel in Volume 42 States have a single government agency “purchase and take physical possession of ” lawfully grown cannabis crops “as soon as possible, but not later than four months after the end of the harvest,” Single Convention art. 23(2)(d), and that this agency thereafter “have the exclusive right of importing, exporting, wholesale trading and maintaining stocks” of marijuana, id. art. 23(2)(e). In addition to the fact that the Single Convention is unambiguous, state practice does not appear to reflect a conclusive or consistent interpretation of the controls required. See Memorandum for Edwin Meese, III, Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Intent and Constitutionality of Legislation Prohibiting the Maintenance of an Office of the Palestine Liberation Organization in the United States at 4 n.5 (Feb. 13, 1988) (declining to depart from the text of an international agreement based on inconclusive post-ratification practice). The Office of the Legal Adviser identifies Australia, Canada, Israel, and the United Kingdom as countries with similar licensing practices as the United States, in which the government agency does not purchase or take physical possession of the marijuana, but allows private growers to distribute it. State Supp. Mem. at 3. But the practices of a handful of the 186 parties to the treaty are entitled to comparatively little weight in illuminating the meaning of the treaty, and certainly do not supply the kind of subsequent practice that “establishes the agreement of the parties regarding its interpretation.” Vienna Convention art. 31(3)(b). In fact, the practice of parties regarding lawful marijuana cultivation is hardly unambiguous. In the Czech Republic, for example, the applicable legal regime requires licensed cannabis growers to “transfer cannabis grown and harvested . . . exclusively to the State Institute for Drug Control,” which is instructed to “buy cannabis harvested within 4 months of its harvesting.” On Dependency Producing Substances and on Amending Certain Other Acts, Act No. 167/1998 Coll. sec. 24b(1) (as amended). And a 2017 report on cannabis legislation in Europe states that in Italy, “[f ]rom November 2015, the [Ministry of Health] can issue permits for marks omitted)); Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 86 (2d Cir. 2005) (holding that secondary evidence of the parties’ intent “may be useful where the intentions of the party States cannot be deduced by the treaty’s plain language, but we need not rely upon such evidence here as the text of Montreal Protocol No. 4 is clear and, consequently, controlling” (internal citation omitted)). 20 Licensing Marijuana Cultivation cultivation” of cannabis and that “[l]icensed farmers deliver the cannabis to the ministry, which then allocates it for production.” European Monitoring Centre for Drugs and Drug Addiction, Cannabis Legislation in Europe: An Overview 8 (2017).15 Currently, it appears that the only authorized grower in Italy is the Italian Army, see Anna Momigliano, In Italy, the Army Provides Medical Marijuana. And Some Say That’s a Problem, Wash. Post, Dec. 1, 2017, which would suggest that a single Italian government agency has physical possession of the crop and a monopoly on trade in cannabis, as the text of Articles 23 and 28 requires. There is also evidence that other parties to the Single Convention have established a single government agency to administer the controls required by Articles 23 and 28. See, e.g., Narcotic Drugs Act 1967, Act No. 53/1967 (Cth) ch 2 pt 2 (as amended) (Austl.) (establishing marijuana licensing framework operated by the Department of Health); Report of the International Narcotics Control Board for 2005, at 16 (Mar. 1, 2006) (noting that “since the last report of the Board was published, the Government of the United Kingdom has established a national cannabis agency”); David Mansfield, An Analysis of Licit Opium Poppy Cultivation: India and Turkey 10–17 (Apr. 2001) (describing the regulation of opium in Turkey under the Grain Marketing Board and in India under the Central Bureau for Narcotics). We find relevant as well the practice of countries that license private growers to cultivate the opium poppy and the coca leaf—both of which are subject to the same Article 23 regime as the cannabis plant.16 The practice among countries that permit lawful production of those plants is consistent with the text of Article 23. In India, Turkey, and Peru, for 15 The report also describes the Netherlands’ regime for medicinal cannabis, which provides that cannabis producers may be “licenced by the Dutch government and must sell all produce to the [Office of Medicinal Cannabis], which then distributes it to pharmacies.” Cannabis Legislation in Europe: An Overview at 7. Although this regime appears to comply with the text of the Single Convention, the Netherlands has a separate regime for non-medical cannabis, pursuant to which it licenses coffee shops to sell small quantities of cannabis. The INCB has objected to this practice and noted that it “is in contravention of the provisions of the [Single] Convention.” Report of the International Narcotics Control Board for 2001, at 35 (Feb. 27, 2002). 16 Article 26 provides that Article 23 applies to licit cultivation of the coca leaf except that the government agency is not required to take physical possession of the crops within four months, but only “as soon as possible after the end of the harvest.” Single Convention art. 26(1). 21 Opinions of the Office of Legal Counsel in Volume 42 example, a government agency purchases and takes physical possession of those crops following the harvest.17 The Office of the Legal Adviser suggests that state practice with regard to opium may not be instructive as to marijuana because “[t]he vulnerabilities of the two plants” to diversion “are significantly different” owing to their different properties. State Mem. at 6. But the Single Convention’s drafters recognized that “the conditions under which the cannabis plant is cultivated for the production of drugs are very different from those under which the opium poppy is grown for opium,” and nonetheless “provide[d] the same regime for both, namely that of article 23.” Commentary at 313.18 While state practice is therefore inconclusive, the Single Convention’s drafting history would strongly support our interpretation of the text of Articles 23 and 28 even if the treaty were ambiguous. See Water Splash, 137 S. Ct. at 1511. An earlier draft of the Single Convention would have provided a less-stringent regime for cannabis than applicable to the coca leaf, under which a closely regulated private entity could grow marijuana. Under that draft, a “‘licensed scientific institute’” would have been permitted to “‘produce, manufacture, possess and export under close State supervision to the government of another Party small amounts of cannabis . . . for the purpose of scientific research.’” Memorandum for Malcolm R. Wilkey, Assistant Attorney General, Criminal Division, from Robert Kramer, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Legislation to Carry Out Certain Provisions of Draft Single Convention on Narcotic Drugs at 2–3 n.2 (Jan. 20, 1960) (quoting Article 39 of draft Single Convention). With regard to the coca leaf, however, the draft would have provided for the Article 23 system of controls. See id. 17 See Central Bureau of Narcotics, Licit Cultivation, http://www.cbn.nic.in/html/ operationscbn.htm (last visited June 6, 2018) (explaining that licensed opium cultivators in India “are required to tender their entire produce to the Government”); Mansfield, An Analysis of Licit Opium Poppy Cultivation at 10–12 (describing the licensing and control measures for opium cultivation in Turkey, overseen by the Grain Marketing Board, which takes physical possession of crops); United Nations Office on Drugs and Crime, Peru Coca Cultivation Survey 8 (June 2005) (explaining that the National Coca Enterprise (“ENACO”) “has a monopoly on the commercialization and industrialization of the coca leaves,” such that “the selling of coca leaves to any party other than ENACO is considered illicit by national law”). 18 Indeed, the Commentary suggests that the regime for opium could, “in practice,” prove to be inadequate to control cannabis production. Commentary at 313 n.9. 22 Licensing Marijuana Cultivation at 1–2 n.1 (quoting Article 36 of draft Single Convention). In other words, the Single Convention’s drafters considered, but rejected, allowing licensed private institutions to produce, store, and ship marijuana under close government supervision, and instead adopted a requirement that the government take physical possession of the crop and conduct trade in the drug. That history also shows that the drafters of the Single Convention considered applying less-stringent controls to marijuana, but declined to do so and instead applied the same stringent controls to marijuana, opium, and the coca leaf. III. For similar reasons, DEA’s 2016 policy statement also fails to establish a framework that would fully comply with Articles 23 and 28 of the Single Convention. Under that policy, DEA would allow a licensee “to operate independently” of NIDA, “provided the grower agrees (through a written memorandum of agreement with DEA) that it will only distribute marijuana with prior, written approval from DEA.” Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,848. Such a licensee would also “be subject to all applicable requirements of the CSA and DEA regulations, including those relating to quotas, record keeping, order forms, security, and diversion control.” Id. DEA suggests that these requirements would be consistent with the purposes of Articles 23 and 28 of the Single Convention because these requirements “will succeed in avoiding one of the scenarios the treaty is designed to prevent: Private parties trading in marijuana outside the supervision or direction of the federal government.” Id. While DEA focuses on its view of the broader purposes of the treaty’s requirements, the Single Convention requires the United States to adopt specific, listed controls if it licenses cannabis cultivation. A single government agency must purchase and take physical possession of harvested cannabis, and generally monopolize the wholesale trade in that plant. The United States cannot satisfy those requirements simply by employing alternatives that the government believes may prevent unlawful diversion. As we have explained, Articles 23 and 28 certainly could have given the parties the discretion to determine the particular controls necessary. Rather than take that route, the parties to the treaty agreed to certain specific controls, and Congress has required the Attorney General to apply those strictures when granting licenses under the CSA. Accord23 Opinions of the Office of Legal Counsel in Volume 42 ingly, DEA’s licensing procedures must comply with those choices. DEA’s announced policy, however, would not comply with Articles 23 and 28 of the Single Convention. IV. We conclude that DEA must alter the marijuana licensing framework to comply with the Single Convention. DEA has discretion to develop a regulatory framework that meets the requirements of Articles 23 and 28. In doing so, DEA need not rule out a regime in which DEA purchases or takes legal title to the marijuana plants prior to their cultivation; adopts a system of regulation and day-to-day supervision that would create an agency relationship; or relies upon NIDA’s expertise to assist the agency in its functions. At a minimum, however, this licensing framework must provide for a system in which DEA or its legal agent has physical possession and ownership over the cultivated marijuana and assumes control of the distribution of marijuana no later than four months after harvesting. In justifying the current licensing framework, DEA had concluded that the division of labor with NIDA was “a result of the existing statutes, regulations, and Congressional appropriations,” and declined to opine on whether, absent legislation, DEA could carry out all the functions required by the Single Convention. Lyle E. Craker, PhD, 76 Fed. Reg. at 51,409–10. Having examined DEA’s and NIDA’s authorities, we do not believe that further legislation is required for DEA to perform those functions. DEA has statutory authority to do so pursuant to 21 U.S.C. § 823(a), which obliges DEA (by delegation from the Attorney General) to ensure that registrations for the manufacture of marijuana comply with the Single Convention. That language authorizes DEA to take steps reasonably necessary to ensure that the registration scheme complies with the Single Convention, which as we have said clearly contemplates that a single government agency will purchase and take physical possession of marijuana crops from registrants. The statute thus authorizes DEA to perform the control functions contemplated by the Single Convention, including the functions of purchasing (or otherwise securing title over) and taking physical possession of marijuana crops. Reading the statute otherwise would preclude DEA from registering any marijuana manufacturer because no registration could be in compliance with the Single Convention, contrary to Congress’s evident intent that DEA administer the registration system. Congress has also established a fund for DEA’s 24 Licensing Marijuana Cultivation diversion control program, which includes DEA activities “related to the registration and control of the manufacture, distribution, [and] dispensing . . . of controlled substances.” 21 U.S.C. § 886a(2)(B) (emphasis added). Because Congress has made compliance with the Single Convention a necessary condition of registration, id. § 823(a), that fund may be used in purchasing, storing, and monopolizing the wholesale trade in marijuana. And although HHS has statutory authority to “determine the qualifications and competency” of the researchers who seek to purchase marijuana from licensed growers to conduct research, id. § 823(f ), that provision would not bar DEA from establishing a government monopoly from which those researchers could purchase marijuana. The NIDA contract is a longstanding feature of the marijuana licensing scheme, and the current version of that contract is annually renewable through March 2020. 2015 NIDA Contract at 27. Although DEA must discharge the obligations required by Article 23(2), NIDA may still play a significant role. The relevant statutes require that “[r]egistration applications by practitioners wishing to conduct research with controlled substances in schedule I shall be referred to the Secretary [of Health and Human Services], who shall determine the qualifications and competency of each practitioner requesting registration, as well as the merits of the research protocol.” 21 U.S.C. § 823(f ). The Single Convention does not require that a single government agency be charged with all responsibilities related to marijuana, and the congressional decision to delegate those responsibilities to HHS is consistent with the Single Convention. Aside from carrying out its role under section 823(f ), NIDA may continue to exercise some supervision over certain aspects of the marijuana cultivation, and DEA may consult NIDA in the process. We see no reason why the NIDA contract framework might not remain in place under a system in which DEA assumes clear title to the marijuana, either at inception or by purchase after harvest, and then takes physical possession after harvest. For instance, DEA could station one or more employees at the National Center after cultivation as a way of ensuring physical possession of the marijuana and exclusive control over its distribution. We would be pleased to advise on these or any other matters concerning implementation of a new licensing framework. HENRY C. WHITAKER Deputy Assistant Attorney General Office of Legal Counsel 25

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Exclusion of Medicine and Medical Supplies From Controls Under the Export Administration Act of 1979 C o n g ress in ten d ed th e exclusion in § 6 (0 o f th e E x p o rt A d m in istratio n A c t o f 1979 for m edicine an d m edical supplies to be absolute, and d id not in ten d to lim it it by im posing a strict sta n d ard o f hum an need. T h e P resid en t has b ro ad d isc retio n to d e te rm in e w h e th e r p a rtic u la r e x p o rts a re m edicines o r m edical supplies w ithin th e exclusion, su b ject o n ly to th e lim itation su g g e sted by the co n c e p t o f basic h u m an need. November 13, 1980 MEMORANDUM OPINION FOR TH E SPECIAL ASSISTANT TO TH E PR ESID EN T FOR CONSUMER A FFA IRS This responds to your request for our opinion as to the scope of the exclusion of “medicine or medical supplies” from export controls under the Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503 (1979), 50 U.S.C. App. § 2401 (Supp. Ill 1979). In pertinent part, the exclusion in § 6(0 of the Act reads: (0 Exclusion for Medicine and Medical Supplies— This section does not authorize export controls on medi­ cine or medical supplies. It is the intent of Congress that the President not impose export controls under this sec­ tion on any goods or technology if he determines that the principal effect of the export of such goods or technology would be to help meet basic human needs. This subsection shall not be construed to prohibit the President from imposing restrictions on the export of medicine or medical supplies under the International Emergency Economic Powers Act. 50 U.S.C. App. § 2405(f). You have asked whether the exclusion is limited to only those “goods or technology . . . the principal effect of which would be to help meet basic human needs”; and, if so, what is meant by the phrase “basic human needs”; and how and by whom the determinations of exclusion are to be made. 809 I. The Scope of the Exclusion Your question concerning the scope o f the § 6(F) exclusion (actually, the absence of authority to impose controls) arises because there is tension between the first and second sentences of the subsection as quoted above. The first sentence uses the phrase “medicine or medical supplies” in describing the goods and technology excluded from con­ trols, while the second sentence defines the exclusion in terms of a standard of “basic human needs.” Yet the Act defines neither phrase and does not otherwise indicate whether they are intended to have the same meaning. Because of this ambiguity, there are two possible read­ ings of the effect of the two sentences together. First, as you inquired, the second sentence could be read as limiting or further defining the first. Thus, although the first sentence seems to exclude from controls all medicine and medical supplies, the second sentence would limit the exclusion to medicine and medical supplies, the principal effect of which would be to help meet basic human needs. Alternatively, the second sentence might be read as merely explaining the basis for the absolute exclusion in the first sentence and would not impose a strict standard of human need on the exclusion. The question is not free from doubt, but we conclude that the latter interpretation is the better reading of the language of the subsection itself and is also more consistent with the sparse legislative history of the exclusion. Initially, we note the interpretive problems that you suggested. As to the statutory language itself, the first sentence, the only operative language of the subsection, is phrased as an absolute exclusion. To read the second sentence as a limitation on this absolute exclusion would have the effect of giving greater weight to the language phrased merely as a statement of intent than to the operative language itself. Moreover, only if the standard of “basic human needs” encompasses less than all medicines and medical supplies could the question of limitation even arise; and, in the absence of definitions in the Act or the legislative history of “medicine or medical supplies” or of “basic human needs,” it is not evident that the second sentence is a limitation on the first. Instead, Congress could have intended to convey its belief that all medicine and medical supplies would help meet a broadly conceived standard of basic human need. With regard to the majority of medicine and medical supplies, this belief would be supportable in fact. The possibility that there might exist some medical goods that would not be thought to meet a standard of basic human need no matter how broadly it was defined, should not prevent Congress from legislating on the basis of this presumption with regard to the entire class of goods. There is little legislative history of § 6(f)- The House version of the Export Administration Act originally contained an exclusion for food, medicine, and medical supplies. H.R. 4034, 96th Cong., 1st Sess. § 6(f) (1979) (discussed at 125 Cong. Rec. 24,034 (1979)). The House Report 810 accompanying the bill, however, is not helpful concerning the question of interpretation, for it merely restates the language of the bill itself. H.R. Rep. No. 200, 96th Cong., 1st Sess. 20 (1979). The Senate version of the Act, S. 737, 96th Cong., 1st Sess. (1979), contained no exclusion at all. The conference committee agreed to the House version with an amendment to make the exclusion apply only to medicine and medical supplies. Again, however, the conference report does no more than state this procedural history. H.R. Rep. No. 96-482, 96th Cong., 1st Sess. 46 (1979). The hearings before the House subcommittee considering the bill are somewhat more revealing. Again, the discussion of the exclusion was not extensive; but we believe that what little discussion there was supports our interpretation that the second sentence of the subsection is an explanation and not a limitation. As originally proposed, the exclu­ sion in the House bill was limited to the first two sentences of what is now § 6(0- It did not provide, as the third sentence of the subsection now does, that the exclusion “shall not be construed to prohibit the President from imposing restrictions on the export of medicine or medical supplies, under the International Emergency [Economic] Powers Act,” 50 U.S.C. App. 2405(0 (referring to 50 U.S.C. § 1701 (Supp. I 1977)). William A. Root, Director of the Office of East-West Trade at the Department of State, objected to the subsection as pro­ posed because it did not explicitly recognize the President’s powers under the International Emergency Economic Powers Act. But there is no indication that Director Root understood § 6(0 as proposed to be other than an absolute exclusion. In fact, it was this understanding that led to his concern about the President’s emergency powers. Specifi­ cally, Director Root testified: Proposed section 6(g) [now § 6(0] would exclude food, medicine, and medical supplies from export controls au­ thorized by this act for foreign policy purposes. Nor­ mally, controls need not extend to these items. However, there may arise instances where commercial exports even of food and medicine would not be in the national inter­ est. There would be no objection to extending to the Export Administration Act the prohibition now contained in the [International] Emergency Economic Powers Act—-section 203(b)(2) of Public Law 95-223—against controlling donations of articles, such as food, clothing, and medicine, intended to be used to relieve human suffer­ ing, except to the extent that the President determines that such donations are in response to coercion against the proposed recipient or donor. Extension and Revision of the Export Administration Act of 1969: Hearings and Markup on H.R. 2539 Before the Subcomm. on Intema811 tional Economic Policy and Trade of the House Comm, on Foreign Affairs, 96th Cong., 1st Sess. 648 (1979) (hereinafter cited as Hearings). Remarks made during the markup session also support the interpreta­ tion that § 6(0 was intended to impose an absolute exclusion from controls. Representative Lagomarsino of California offered an amend­ ment to strike the § 6(0 exclusion because he was concerned with the effect of the subsection on existing embargoes which included food, medicine, and medical supplies. But he was also concerned because he “[did] not think that we should be saying that under no circumstances under this act should we have a total solution or a total prohibition about embargoes on food, medicine, and medical supplies.” Hearings at 774. Subcommittee Chairman Bingham of New York suggested that the amendment be considered in connection with an amendment proposed to eliminate the next subsection of the Act which provided that a total trade embargo was not authorized. Chairman Bingham explained: First of all, I think it is pretty clear this does not affect the existing embargoes against Cuba, Vietnam, Cambodia, and so on. They are authorized by other legislation. These paragraphs say this section does not authorize export con­ trols of food, medicine, and so on. Basically it is my view that a total embargo is such an extreme measure that it ought to be specifically authorized by the Congress and not imposed by the administration, even though it may be subject to later veto by the Congress. That applies to a total embargo, and that applies to export controls on food, medicine, or medical supplies. These are extreme meas­ ures. Export controls on food and medicine are surely of the gravest importance, close to an act of economic war­ fare, and therefore it is my view that such action should be imposed by the Congress by law. * * * * * So leaving these two paragraphs in does not change the law. It simply clarifies the law. This does not change any existing controls on food and medicine or medical sup­ plies. We simply say in effect that under this act the President cannot impose total embargo and he cannot impose economic controls of that character. Id. at 774-75. Representative Bonker of Washington agreed: I would like to associate myself with the chairman’s remarks, and retain for Congress the right to have full authority over controls. . . . . . . [TJhere are many situations where we disagree to­ tally with the political makeup of the government for 812 whatever reasons, but yet this does not totally preclude our humanitarian commitment. I think in Southeast Asia, for instance, the Red Cross is supplying medical assistance and certain items for relief and for humanitarian purposes. So I think that the proposed change would impose unwar­ ranted restrictions on our humanitarian commitment, even though we may disagree totally with the political makeup of particular countries. For these reasons I would have to oppose the amendment. Id. at 775. At this point, Director Root again explained the Administration’s position: Mr. Chairman, as you know, the administration op­ posed both subsections (0 and (g) in testimony before your subcommittee earlier this month, largely for the rea­ sons which Mr. Lagomarsino presented. With respect to subsection 6(0 we did indicate, and this addresses Mr. Bonker’s point on humanitarian shipments, that we could accept language which was comparable to that now ap­ pearing in the International Emergency Economic Powers Act, which would read somewhat along the following lines: This section does not authorize export controls on dona­ tions of articles such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such dona­ tions are in response to coercion against the proposed recipient or donor. Id. at 775. Again, it is clear that § 6(0 was understood to exclude entirely medicine and medical supplies, and, at the time, food, from controls under the Export Administration Act. The only change sought and obtained was express recognition that the President’s emergency powers continued. We recognize that our interpretation that the second sentence of § 6(0 explains but does not limit the first is not without its own difficulties. If an absolute exclusion results from the first sentence, Congress did not have to specify its intent in the second sentence. Moreover, if an absolute exclusion results, Congress did not have to specify the situation in which controls would be precluded, that is, when the principal effect of the exports would be to help meet basic human needs. But the tension noted above between the first and second sentences of § 6(0 precludes an interpretation free of all difficulties; and on balance we find that the problems with interpreting the second sentence as an explanation are less significant than are the problems 813 with interpreting it as a limitation. First, as to the consequence that the statement of intent in the second sentence is rendered superfluous, the alternative would render superfluous the first sentence or at least its seemingly absolute character. If we must choose between the two, we should choose an interpretation that preserves that operative language of the statute even though it sacrifices the language of general intent. Second, as to the consequence that the second sentence would require a determination of the principal effect of the export that is irrelevant if no controls on medicine or medical supplies are authorized, we would offer the following saving interpretation. II. By Whom Are the Determinations of Exclusion To Be Made Initially, we should say in answer to your third question, namely, who is to make the determinations of exclusion, that § 6(0 confers upon the President the authority to make the determinations required under the subsection; or he may delegate his power, authority, and discretion under § 6(0 in accordance with the delegation provisions of § 4(e) of the Act, 50 U.S.C. App. § 2403(e). Because of our interpretation that § 6(0 imposes an absolute exclusion from controls on medicine and medical supplies, it remains to be discussed just what determinations § 6(0 requires or allows the President or his delegate to make. III. The Meaning of the Exclusion As we have interpreted § 6(f), medicine and medical supplies are absolutely excluded from controls on the ground that they are neces­ sary to help meet basic human needs or at least that Congress thought so. A finding that the two standards are coterminous, however, leads to the further conclusion that the discretion conferred upon the President under § 6(0, although literally phrased as the determination whether the principal effect of exports would be to help meet basic human needs, is in fact the discretion to determine whether the exports are medicines or medical supplies. This interpretation avoids so far as possible a construction of the second sentence of § 6(0 as conferring discretion that cannot be exercised while at the same time not validat­ ing the exercise of discretion where it was not intended. The interpreta­ tion has the additional benefit of changing the definitional focus from the vague concept of “help[ing to] meet basic human needs” to the more concrete categories of “medicine or medical supplies.” This brings us to your second question. In the event that we found the scope of the exclusion limited by the standard of basic human needs, you asked what was meant by that phrase. In light of our conclusion that the exclusion is not so limited, the question is no longer pertinent. Instead, the appropriate standard of reference is “medicine or medical supplies.” 814 As noted above, the Act does not define “medicine or medical supplies”; nor does the legislative history provide any guidance, except the general humanitarian sentiments expressed. But we have previously recognized that the Act provides the President great discretion and flexibility. In the absence of a definition specifically confining this general authority, the President may utilize his authority to the utmost extent and identify the contours of the exclusion subject only to the limitations imposed by humanitarianism suggested by the concept of basic human needs.1 L eo n U lm an Deputy Assistant Attorney General Office o f Legal Counsel 1 In a m em orandum opinion o f today's date for the D eputy Counsel to the President, w e conclude that the exem ption o f exports from dom estic standards under the Federal F ood, D rug, and C osm etic A ct, 21 U.S.C. § 381(dXO* and o th e r statutes controlling hazardous substances does not preclude the imposition o f export controls for foreign policy purposes. In light o f that conclusion, the scope o f the exclusion for “ m edicine o r m edical supplies’* need not be defined by reference to the reach of regulatory authority under the Food, D rug, and C osm etic A ct. Indeed, w e note that in the pursuit o f health and safety under that A ct, a regulatory scope significantly bro ader than a standard o f "basic hum an needs” might be appropriate. [ N o t e : T h e text o f the M em orandum O pinion for the D eputy Counsel to the President im m ediately precedes this opinion, at p. 802. Ed.] 815

Write a legal research memo on the following topic.

Whether the Federal Trade Commission Has Authority to Prosecute Actions for Criminal Contempt The Federal Trade Commission lacks authority to prosecute actions for cnm inal contem pt, unless the Com m ission’s attorneys receive special appointments from the Attorney General and b ecom e subject to his direction. September 25, 1989 M e m o r a n d u m O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l C iv i l D i v i s i o n This memorandum responds to your request for the opinion of this Office as to whether the Federal Trade Commission (“FTC” or “Com­ mission”) has authority to prosecute actions for criminal contempt. We conclude that the Commission lacks authority to prosecute such actions, unless the Commission’s attorneys receive special appointments from the Attorney General and become subject to his direction. I. A court o f the United States has the power to “punish by fine or impris­ onment ... such contempt of its authority, and none other, as ... [disobe­ dience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3). Where an alleged criminal contempt arises from disobedience to a court order in a case that the Commission has brought or defended, the Commission asserts "the authority, upon appointment by the court, to prosecute the contempt. See Letter for Robert N. Ford, Deputy Assistant Attorney General, Civil Division, from Amanda B. Pederson, Deputy Director of Consumer Protection, Federal Trade Commission at 1 (June 24, 1985) (“Pederson Letter”). The Civil Division and the Criminal Division both take the view that the Commission is without authority to conduct such prosecutions. See Letter for Amanda B. Pederson, from Robert N. Ford (June 10, 1985); Memorandum for Margaret Love, Attomey-Advisor, Office of Legal Counsel, from Lawrence Lippe, Chief, General Litigation and Legal Advice Section, Criminal Division (Oct. 28, 1985). Under 28 U.S.C. § 516, the Attorney General, “[e]xcept as otherwise authorized by law,” has control over “the conduct o f litigation in which 291 the United States, an agency, or officer thereof is a party, or is interested.” See also 28 U.S.C. § 519.1The principle that the Attorney General has ple­ nary authority over such litigation applies with particular force in crimi­ nal cases. See United States v. Nixon, 418 U.S. 683, 694 (1974) (“Under the authority o f Art. II, § 2, Congress has vested in the Attorney General the pow er to conduct the criminal litigation o f the United States Government.”) (citing 28 U.S.C. § 516). Therefore, the Commission may not bring an action for criminal contempt unless clearly “authorized by law” to do so. Cf. United States v. International Union of Operating Eng'rs, 638 F.2d 1161, 1162 (9th Cir. 1979), cert, denied, 444 U.S. 1077 (1980) (noting “a presumption against a congressional intention to limit the power o f the Attorney General to prosecute offenses under the crim­ inal laws o f the United States,” in rejecting argument that United States must exhaust administrative remedies before bringing criminal case). We do not believe that the Commission is authorized by the FTC Act, ch. 311, 38 Stat. 717 (codified as amended at 15 U.S.C. §§ 41-58), or any other statute to prosecute actions for criminal contempt. The Commission’s statutory authority to litigate on its own behalf is confined to civil proceedings. See 15 U.S.C. § 56(a)(1)(A) & (a)(2) (stating that the Commission may “commence, defend, or intervene in” various kinds of “civil action[s]”); see also 15 U.S.C. § 56(a)(3)(A) (referring to “any civil action in which the Commission represented itself’).2 The FTC Act, how­ ever, expressly assigns to the Attorney General the responsibility for 1This Office has previously concluded (A)bsent clear legislative directives to the contrary, the Attorney General has full plenary authority over all litigation, civil and criminal, to which the United States, its agencies, or departments, are parties. Such authonty is rooted historically in our common law and tradi­ tion, see Confiscation Cases, 74 U.S. (7 Wall) 454, 458-59 (1866) and, since 1870, has been given a statutory basis. See 5 U.S.C. § 3106, and 28 U S.C §§ 516, 519. The Attorney General’s plenary authonty is circumscribed only by the duty imposed on the President under Article II, § 3 o f the Constitution to “take Care that the Laws be faithfully executed " Attorney General's Role as Chief Litigator for the United States, 6 Op OLC. 47, 48 (1982) (citation omitted). 2 15 U.S.C. § 56(a) reads, in relevant part: (1) Except as otherwise provided in paragraph (2) or (3), if — (A ) before commencing, defending, or intervening in, any civil action involving [sec­ tions 41 to 46 and 47 to 58 o f this title] (including an action to collect a civil penalty) which the Commission, or the Attorney General on behalf o f the Commission, is autho­ rized to comm ence, defend, or intervene in, the Commission gives written notification and undertakes to consult with the Attorney General with respect to such action, and (B ) The Attorney General fails within 45 days after the receipt o f such notification to comm ence, defend, or intervene in, such action; the Commission may commence, defend, or intervene in, and supervise the litigation or, such action and any appeal o f such action in its own name by any o f its attorneys designated by it for such purpose. (2) Except as otherwise provided in paragraph (3), in any civil action— the Commission shall have exclusive authonty to commence or defend, and supervise the litigation of, such action and any appeal o f such action in its own name by any o f its attorneys Continued 292 bringing any criminal cases arising from violations o f the laws adminis­ tered by the Commission: Whenever the Commission has reason to believe that any person, partnership, or corporation is liable for a criminal penalty under [sections 41 to 46 and 47 to 58 o f this title], the Commission shall certify the facts to the Attorney General, whose duty it shall be to cause appropriate crimi­ nal proceedings to be brought. 15 U.S.C. § 56(b).3 Indeed, in enacting amendments to 15 U.S.C. § 56 and related provi­ sions in 1973, Congress took special care not to create ambiguities in the statute that might lead to the Commission’s assuming a criminal jurisdic­ tion. When the bill came from the Conference Committee, it included one provision (15 U.S.C. § 45(m)) that the parliamentarian o f the House inter­ preted as allowing criminal prosecutions by the Commission. See 119 Cong. Rec. 36,813 (1973) (remarks of Sen. Stevens). To clarify the provi­ sion, the Senate returned to the version that it had originally passed, which plainly “applie[d] only to civil actions.” Id,.4 Nevertheless, the Commission argues that it has authority to bring actions for criminal contempt. The Commission does not claim any express statutory basis for this supposed authority. Instead, it contends that “the authority of [its] attorneys to prosecute the criminal contempt (if appointed by the court to do so) is an inherent part of their authority to prosecute the underlying action from which the contempt arises.” Pederson Letter at 1. The Commission also relies on the Supreme Court’s opinion in FTC v. Dean Foods Co., 384 U.S. 597 (1966). In that case, the Court held that the Commission, despite an absence o f explicit statutory authority, could seek preliminary relief from the Court of Appeals pend­ ing the outcome of Commission proceedings in a merger case because “[s]uch ancillary powers have always been treated as essential to the 2(.. continued) designated by it for such purpose, unless the Commission authorizes the Attorney General to do so The Commission shall inform the Attorney General o f the exercise o f such authority and such exercise shall not preclude the Attorney General from intervening on behalf o f the United States in such action and any appeal o f such action as may be otherwise provided by law 15 U.S.C. § 56(a) 15 U S C. § 56(a)(3), to which these sections refer, deals with representation in civil actions before the Supreme Court 3 As explained below, the Commission asserts that its power to prosecute contempts is incidental to its statutory power under the sections o f the United States Code referred to in 15 U.S.C. § 56(b) Therefore, the Commission could not escape from the provision o f 15 U.S C § 56(b) about certification to the Attorney General by arguing that liability for contempt is not “under [sections 41 to 46 and 47 to 58]” of title 15, as referred to in that provision. 4 Although Congress substituted a new version o f 15 U.S.C § 45(m) in 1975, the amended provision expressly applies only to civil actions and thus does not enlarge the scope o f the section in that respect. See Pub. L No 93-637, tit. II, §§ 204(b), 205(a), 88 Stat. 2193, 2199, 2200-01 (1975). 293 effective discharge o f the Commission’s responsibilities.” Id. at 607. Finally, the Commission contends that its authority may be justified by its consistent exercise o f this authority in the past. II. The Commission’s arguments do not establish its statutory authority to bring actions for criminal contempt. A. The Commission has no authority to prosecute a criminal contempt as “an inherent part o f [its] authority to prosecute the underlying action from which the contempt arises.” Pederson Letter at 1. An action for criminal contempt is separate from the underlying civil litigation. As the Supreme Court explained in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987), the “criminal contempt proceedings arising out o f civil litigation ‘are between the public and the defendant, and are not a part of the original cause.’” Id. at 804 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 (1911)); see Bray v. United States, 423 U.S 73, 75 (1975).5 Because the underlying civil action that Congress authorized the Commission to pursue is distinct from the criminal contempt action, there is no reason to infer that Congress intended the Commission’s liti­ gation authority to reach criminal contempt cases. This conclusion is no mere matter of form but follows from the essen­ tially different interests at stake in the underlying civil litigation and the subsequent criminal prosecution. Civil actions for injunctions vindicate the goals o f the Federal Trade Commission Act or the Clayton Act; Congress explicitly entrusted the Commission with the duty of seeking those goals through litigation. An action for criminal contempt, however, is aimed at “vindicating the authority o f the court” and “presenting] respect for the judicial system itself.” Vuitton, 481 U.S. at 800.® Prosecution o f the criminal contempt, therefore, serves purposes different from those Congress directed the Commission to pursue in civil litigation.7 5 A prosecution for cnminal contempt, fo r example, is not “affected by any settlement which the par­ ties to the [underlying] equity cause made in their pnvate litigation,” but continues as a separate action. Gompers v Bucks Stove & Range Co , 221 U.S at 451 6The Supreme Court accordingly held in Vuitton that attorneys “appointed to prosecute a cnminal con­ tempt action represent the United States, n ot the party that is the beneficiary o f the court order alleged­ ly violated." 481 U.S. at 804, see United States v. Providence Journal Co , 485 U S. 693, 700 (1988) (“The action was initiated in vindication of the ‘judicial Power o f the United States' U S. C onst, Art. Ill, § 1 (emphasis added), and it is that interest, unique to the sovereign, that continues now to be litigated in this Court.”). 7 To be sure, a prosecution for cnminal contempt, in som e measure, will indirectly promote the statu­ tory policies at stake m the underlying litigation. Future violations o f orders requinng obedience to the statute administered by the Commission may be deterred by the prospect o f punishment for contempt. But this indirect promotion o f the statutory policies does not detract from the primary purpose o f vindicatingjudicial authonty in cnminal contempt cases. It is the vindication o f judicial authonty (and not the Commission’s authonty) that justifies appointment o f a prosecutor by the court in the first place. See Vuitton, 481 U.S. at 800-01, Cheff v Schnackenberg, 384 U S. 373, 378 (1966) (plurality opinion) ( “Cheff was found in contempt o f the Court of Appeals, not o f the Commission.”). 294 The Commission’s argument, moreover, could lead to a widening circle of “incidental” criminal prosecutions by the Commission. Charges o f per­ jury, bribery, or obstruction of justice, too, could grow out o f civil pro­ ceedings brought by the Commission. To our knowledge, however, the Commission has never asserted authority to prosecute such crimes, and exercise o f such authority would be clearly contrary to the requirement o f the FTC Act that criminal charges be referred to the Attorney General. Actions for criminal contempt, therefore, are separate from the under­ lying civil actions in which the orders alleged to be violated are issued. The Commission’s authority to litigate the civil actions does not entail any “inherent” authority to bring actions for criminal contempt. B. The Supreme Court’s decision in FTC v. Dean Foods Co., 384 U.S. 597 (1966), does not support the authority claimed by the Commission to initiate actions for criminal contempt. Dean Foods merely held that the Commission could ask the court o f appeals for a preliminary iryunction against a merger, pending the outcome o f administrative proceedings. Although the Commission had no explicit statutory power to seek this preliminary relief, the Court ruled that such power could be inferred: [T]he Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement o f the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts o f appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental power to ask the courts of appeals to exercise their authority derived from the All Writs Act. Id. at 606 (footnote omitted). This rationale does not justify the Com­ mission’s prosecution o f actions for criminal contempt. An action for criminal contempt does not vindicate the laws whose enforcement “Congress has entrusted” to the Commission; it vindicates the authority of the court, in a proceeding separate from the underlying civil action. Moreover, without authority to seek a preliminary ii\junction, the Commission would be powerless to prevent illegal mergers. Thus, injunc­ tive authority is necessary to accomplish the mission Congress has set for the FTC. On the other hand even without criminal contempt authority, the FTC can fully vindicate its decrees through its civil authority. Accordingly, the authority to prosecute criminal contempts cannot be fairly inferred from the FTC’s general statutory authority. Nor do we believe that the Dean Foods Court’s observation, in dictum, that it had never been “asserted that the Commission could not bring con­ tempt actions in the appropriate court o f appeals when the court’s enforcement orders were violated, though it has no statutory authority in 295 this respect,” 384 U.S. at 607, suggests that the Commission er\joys the power to bring criminal contempt cases. The Court followed this observa­ tion by declaring that “[s]uch ancillary powers have always been treated as essential to the effective discharge of the Commission’s responsibilities.” Id. Thus, this dictum can most sensibly be read as referring to civil con­ tempt, since the other instances o f the Commission’s implied powers dis­ cussed by the Court — the power to seek preliminary relief from an appellate court and the power to defend Commission orders in judicial review proceedings — concern civil actions in which the Commission’s authority and the policies o f the statutes administered by the Commission would be vindicated. See id. at 606-07. Criminal contempt cases, as explained above, vindicate instead the authority o f the court, in proceedings separate from the underlying civil actions. Furthermore, the Eighth Circuit has reached the conclusion that Dean Foods “did not directly or indirectly concern itself with the possible con­ flict between the Commission and the Attorney General over which agency was the proper one to seek the exercise” o f the appellate court’s power to issue a preliminary injunction. FTC v. Guignon, 390 F.2d 323, 327 (8th Cir. 1968). The issue in Guignon was whether the Commission, on its own behalf, could seek to enforce discovery subpoenas or needed the “aid or consent” o f the Attorney General. Id. at 324. The court decid­ ed that the Commission could not seek, on its own behalf, to enforce its discovery subpoenas but depended on the Attorney General to do so. Whether or not the court in Guignon was correct in making this ruling,8 or in interpreting Dean Foods as not involving possible conflicts between the Commission and the Attorney General, Guignon demonstrates that Dean Foods should not be read as a general warrant for the Commission to assert implied powers that conflict with the Attorney General’s statu­ tory authority. C. The Commission also argues that its authority to prosecute criminal contempts “is supported both by long and consistent usage and by the only decision o f which [the Commission is] aware in which the issue [of agency authority] was expressly contested and resolved.” Pederson Letter at 1. As an initial matter, we do not believe that usage alone can justify a practice unsupported in law — nor can a single district court decision. In any event, we do not believe that the usage or the case pro­ vides support for the Commission’s claim o f authority to bring criminal contempt actions. As to the usage, the Commission cites seven reported cases in which it 8 Two district court cases decided at approximately the same time as Guignon held that the Commission could seek to enforce its subpoenas without the consent and assistance o f the Attorney General FTC v. Kujawski, 298 F. Supp. 1288, 1289 (N D. G a 1969); FTC v. Continental Can Co , 267 F. Supp. 713 (S.D.N.Y. 1967) Through later legislation, Congress made clear the Commission’s statutory authonty to bring actions to enforce subpoenas. See 15 U S.C § 56(a)(2)(D), Pub L. No. 93-153, tit. IV, § 408(g), 87 Stat 576, 592 (1973); Pub. L. No. 93-637, tit. II, § 204(a), 88 Stat. 2183, 2199 (1975). 296 prosecuted criminal contempts.9 As the Commission concedes, Pederson Letter at 2-3, the courts in these cases did not address the Commission’s authority to bring the actions. Nor did the Ninth Circuit consider the issue of statutory authority in a more recent case in which it sustained a finding of contempt and rejected the argument that, under Vuitton, the Commission was disqualified from prosecuting the contempt because it was an interested party.10 See FTC v. American Nat’l Cellular, 868 F.2d 315 (9th Cir. 1989). Because these cases do not discuss the issue of statu­ tory authority, they do not illuminate whether Congress intended the Commission to prosecute criminal contempts. See United States v. Morton Salt Co., 338 U.S. 632, 647 (1950) (Nonexistent powers cannot “be prescripted by an unchallenged exercise.”). Nor has the usage in this area been consistent. In one instance of which we have been made aware, the Commission’s lawyers received appoint­ ments as Special Assistant United States Attorneys, when a grand jury was conducting an investigation bearing on possible charges of criminal con­ tempt. See Memorandum for D. Lowell Jensen, Deputy Attorney General, from Richard K. Willard, Acting Assistant Attorney General, Civil Division, at 1-2 (July 30, 1985); Memorandum for Richard K. Willard, Acting Assistant Attorney General, Civil Division, from John R. Fleder, Assistant Director, Office o f Consumer Litigation (May 30,1985); Pederson Letter at 3 n.3, 6; 28 U.S.C. § 515. The Commission suggests that this involvement by the Department o f Justice does not destroy the consistency o f the Commission’s practice o f representing itself because the Commission’s attorneys “might properly prosecute the particular matter themselves.” Pederson Letter at 3 n.3. That argument, however, is circular; it assumes that the Commission’s lawyers could have brought an action. Absent the assumption that the Commission may prosecute a criminal contempt action, the involvement o f the Department o f Justice undermines the con­ sistency of the very usage on which the Commission relies. The Commission also argues that one case, SEC v. Murphy, Fed. Sec. L. Rep. (CCH) 99,688 (C.D. Cal. 1983), explicitly considered and upheld the authority of the Securities and Exchange Commission to bring criminal contempt actions under a statute similar to 15 U.S.C. § 56. The Court in Murphy did not discuss the different interests to be vindicated in criminal contempt action and the underlying civil case. Instead, the court based its holding on the absence o f an explicit statutory prohibition against the 9FTC v. Hoboken White Lead & Color Works, 67 F.2d 551 (2d Cir. 1933); FTC v. Pacific States Paper Trade Ass’n, 88 F.2d 1009 (9th Cir 1937), In re Dolan Co7p., 247 F2d 524 (D C. Cir. 1956), cert denied, 353 U.S. 988 (1957), In re P. LoriUard Co , 1959 Trade Cas (CCH) H 69,272 (4th Cir 1959); In re Floersheim, 316 F.2d 423 (9th Cir. 1963), In re Holland Furnace Co., 341 F.2d 548 (7th Cir. 1965), affd sub nom Cheff v Schnackenberg, 384 U S. 373 (1966); In re Whitney & Co., 273 F.2d 211 (9th Cir 1959). 10Vuitton held, under the Court’s supervisory power, that counsel for an interested party in civil litiga­ tion underlying a contempt action should not be appointed to prosecute the contempt. See 481 U.S. at 802-09. 297 SEC’s bringing the action and on the argument that “the SEC — not the United States Attorney, the Attorney General, or anyone else — is in the best position to know the specific prohibitions o f the injunction and the particular circumstances which allegedly constitute the contempt of the injunction.” Id. at 97,765. In Vuitton, however, the Court rejected the argu­ ment that an attorney’s expertise justifies giving him control of a prosecu­ tion for criminal appointment. The Court held that, despite expert knowl­ edge, counsel for an interested private party should not be allowed to prosecute a criminal contempt: “That familiarity may be put to use in assisting a disinterested prosecutor in pursuant to the contempt action, but cannot justify permitting counsel for the private party to be in control o f the prosecution.” Vuitton, 481 U.S. at 806 n.17. Similarly, the Commission’s knowledge of the underlying action cannot justify abandon­ ing the principle that the Attorney General is to control the litigation of criminal cases on behalf of the United States. See United States v. Nixon, 418 U.S. at 694; 28 U.S.C. § 516. The single district court case addressing this issue — decided before Vuitton — is, therefore, unpersuasive. In sum, the cases and practices on which the Commission relies do not establish that the Commission has implied authority to bring actions for criminal contempt. The cases involving the Commission itself do not touch on the issue at all; the usage in this area is not consistent; and the single district court case that might lead to an argument by analogy has been undercut by the later opinion o f the Supreme Court in Vuitton. III. Finally, we address two arguments not advanced in the Pederson Letter. First, although the Pederson Letter cites Fed. R. Crim. P. criminal contempt actions, the Commission does not rely on Rule 42(b) as “authoriz[ing] by law” the Commission’s initiation of actions for criminal con­ tempt. Since the Pederson Letter, Vuitton has established that Rule 42(b) “does not provide authorization for the appointment o f a private attor­ ney” but “speaks only to the procedure for providing notice of criminal contempt.” Vuitton, 481 U.S. at 793, 794 (emphasis omitted). Rule 42(b) thus offers no authority for the Commission to prosecute contempts. Second, it might be argued that even if the Commission lacks statutory authority to bring actions for criminal contempt, a court, through the exercise o f its authority to appoint prosecutors, could empower the Commission to prosecute a criminal contempt case. Any such argument would be groundless. In addition to the issue o f the court’s authority to appoint prosecutors, there is a separate question about whether the government attorneys have authority to accept appointment. The Com­ mission is a creation of statute and thus must abide by the statutory lim­ itations on the authority. See Civil Aeronautics Bd. v. Delta Air Lines, 367 U.S. 316, 322 (1961); Oceanair of Florida v. United States Dep’t of 298 Transp., 876 F.2d 1560, 1565 (11th Cir. 1989). Prosecution o f criminal contempts by Commission attorneys at the behest o f a court would circumvent the Congressional determination to limit the Commission’s authority to civil actions.11 IV. We conclude that the Commission has no authority to bring actions for criminal contempt. Commission lawyers, however, may be appointed special attorneys subject to the Attorney General’s direction, 28 U.S.C. § 515, and in that capacity could conduct prosecutions for criminal con­ tempt in cases where the court had appointed the United States Attorney to prosecute. WILLIAM P. BARR Assistant Attorney General Office of Legal Counsel 11 We do not believe that the judiciary would have the constitutional authonty to assign governmental attorneys to prosecute cnminal contempts in contravention o f limits on their statutory authonty Vuitton sustained the appointment o f pnvate attorneys to prosecute cnminal contempts, because a court’s power to “punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authonty without complete dependence on other Branches ” Vuitton, 481 U S at 796 Although the power o f courts to vindicate their own authority, under the circumstances in Vuitton, arguably may be grounded in the Constitution, appointment o f Commission attorneys hardly promotes judicial freedom from “complete dependence on other Branches.” 299

Write a legal research memo on the following topic.

Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities Section 274A o f the Im m igration and N ationality Act, which establishes em ployer verification require­ m ents and authorizes the Im m igration and N aturalization Service to take enforcem ent actions against em ployers fo r failure to com ply with those requirem ents, authorizes im position o f em ployer sanctions against federal governm ent entities. T he INS can exercise this enforcem ent authority against persons and entities within all three branches o f the federal governm ent in a m anner consistent with the C onstitution. March 15, 2000 M em orandum O p in io n I m m ig r a t i o n and fo r th e G en era l C o u n sel N a t u r a l iz a t io n S e r v ic e You have requested our advice as to whether section 274A of the Immigration and Nationality Act (“ INA” ), which establishes employer verification require­ ments and authorizes the Immigration and Naturalization Service (“ INS” ) to take enforcement action against employers for failure to comply with those require­ ments, can be applied to federal government entities, in light of the possible con­ stitutional concerns that such enforcement action might raise. As we explain more fully below, we believe that section 274A clearly contemplates the imposition of employer sanctions against federal government entities. Moreover, with respect to employers within all three branches, we conclude that the INS can exercise its authority to take enforcement actions against such persons or entities consistent with the Constitution. BACKGROUND Section 274A of the INA provides for the assessment of civil monetary penalties and cease and desist orders against any “ person or other entity” who has know­ ingly hired, or knowingly continued to employ, any unauthorized alien or who has failed to comply with the employment verification system mandated by section 274A(b).' 8 U.S.C. §§ 1324a(e)(4Me)(5) (1994 & Supp. II 1996). As used in section 274A, the term “ entity” includes “ an entity in any branch of the Federal Government.” Id. § 1324a(a)(7). The INS has the authority to investigate complaints of potential violations of section 274A by inspecting employment eligibility verification forms maintained by employers and compelling the production of evidence or the attendance of witnesses by subpoena. Id. § 1324a(e)(2). If, based upon such an investigation, the INS determines that an employer has violated section 274A, it serves a Notice 1 Criminal penalties and injunctive relief may also be imposed against persons or entities engaged in a “ pattern or practice o f violations” of section 274A. See 8 U.S C. § 1324a(f)( 1M 2 ) 33 Opinions o f the Office o f Legal Counsel in Volume 24 o f Intent to Fine ( “ NTF” ) on the employer. 8 C.F.R. § 274a.9 (1998). An employer served with a NIF may request an evidentiary hearing before an Administrative Law Judge ( “ ALJ” ). 8 U.S.C. § 1324a(e)(3). If the employer does not request a hearing, the NIF becomes a final, unappealable order, id.\ if a hearing is requested, the ALJ’s subsequent decision and order become the final decision and order of the Attorney General, unless a reviewing official or the Attorney General herself modifies or vacates the order, pursuant to regulations. See id. § 1324a(e)(7). Section 274A also provides for judicial review and judicial enforcement of final orders. Under section 274A(e)(8), “ [a] person or entity adversely affected by a final order respecting an assessment may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.” 8 U.S.C. § 1324a(e)(8). If a person or entity refuses to comply with any final order, the statute provides that “ the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States.” Id. § 1324a(e)(9). DISCUSSION As noted above, section 274A authorizes the INS to assess civil monetary pen­ alties against any “ person or other entity” that violates the employment verification provisions of that section. Section 274A(a)(7) provides: “ For purposes of this section, the term ‘entity’ includes an entity in any branch of the Federal Government.” 8 U.S.C. § 1324a(a)(7). We must first determine whether Congress intended to authorize the INS to assess administrative penalties and otherwise bring enforcement proceedings against governmental employers. A straightforward reading of the statutory text leads us to conclude that that was clearly Congress’s intent. Prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( “ IIRIRA” ), Pub. L. No. 104-208, 110 Stat. 3009-546, section 274A contained no provision defining the scope of the term “ entity.” In fact, this Office deter­ mined in 1992 that the absence at that time of any definition of the phrase “ person or other entity” from the INA, together with the lack of evidence that Congress intended the phrase to include federal agencies, precluded application of the term “ entity” to a federal government agency in the context of the employer antidiscrimination provision of section 274B. See Enforcement Jurisdiction o f the Spe­ cial Counsel fo r Immigration Related Unfair Employment Practices, 16 Op. O.L.C. 121, 123-24 (1992). In 1996, Congress amended section 274A to make clear that the term “ entity” did apply to federal government entities. Section 412(d) of IIRIRA added new subparagraph 274A(a)(7) to the INA: 34 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities “ Application to Federal Government — For purposes of this sec­ tion, the term ‘entity’ includes an entity in any branch of the Fed­ eral Government.” 8 U.S.C. § 1324a(a)(7). We believe the language of that provision is manifest: for purposes of section 274A, the term “ entity” applies to all federal government employers, including agencies within the executive, judicial and legislative branches. The House Conference Report accompanying IIRIRA confirms our reading of section 412(d): “ This provision clarifies that the Federal government must comply with section 274A of the Immigration and Nationality Act . . . .” H.R. Conf. Rep. No. 104—828, at 237 (1996). The plain text of the statute, together with its legislative history, thus leaves no question as to Congress’s intent that federal government entities be covered by section 274A, including the investiga­ tion, assessment and enforcement provisions of section 274A(e). Having concluded that Congress intended to authorize the INS to assess civil penalties and bring enforcement actions against other governmental employers, we further conclude that the INS can exercise that authority consistent with the Constitution. Because different constitutional issues are raised by INS enforcement of section 274A against executive agencies, the judiciary, and Congress, we will separately address application of the statute to each branch. Enforcement Actions Against Executive Branch Agencies The President has authority under Article II of the Constitution to supervise the executive branch, which includes the authority to resolve disputes within that branch. Authorizing the INS to assess civil penalties against other agencies does not give rise to a constitutional problem under Article II. The critical point is that the INA “ does not preclude the President from authorizing any process he chooses to resolve disputes between [the INS] and other federal agencies regarding the assessment of administrative penalties.” Administrative Assessment o f Civil Penalties Against Federal Agencies Under the Clean A ir Act, 21 Op. O.L.C. 109, 116 (1997) (“ EPA Opinion” ). Under section 274A, any agency that disputes an INS assessment has the opportunity to voice its objections in an administrative hearing before an ALJ, whose decision is subject to review by the Attorney Gen­ eral or her delegate. 8 U.S.C. § 1324a(e)(7). There is no limitation in the statute on the President’s authority to review the matter if he chooses to do so, and the absence of any such restriction on his discretion is dispositive. EPA Opinion, 21 Op. O.L.C. at 116. In the context of one federal executive agency assessing civil penalties against another, the statutory provision of judicial procedures to enforce those penalties also might be thought to raise constitutional concerns related to the Article III limitation on the jurisdiction of the federal courts to actual cases and controversies. 35 Opinions o f the Office o f Legal Counsel in Volume 24 The civil action provisions contained in sections 274A(e)(8) and (9) might be construed to suggest that one executive branch agency may sue another in federal court over an administrative penalty. This Office has consistently held that “ ‘law­ suits between two federal agencies are not generally justiciable.’ ” EPA Opinion, 21 Op. O.L.C. at 111 (quoting Constitutionality o f Nuclear Regulatory Commis­ sion ’s Imposition o f C ivil Penalties on the A ir Force, 13 Op. O.L.C. 131, 138 (1989)). Federal courts may adjudicate only actual cases and controversies, and a lawsuit involving the same party as both plaintiff and defendant — which would generally be the result if one executive agency sued another — does not constitute an actual controversy. However, in practice, such a scenario would not arise, for the internal executive branch dispute-resolution process described above would either obviate the need for a final administrative order or preclude noncompliance with such an order. In the event o f any dispute between INS and another executive agency as to a civil penalty assessment, the President, as head of the executive branch, has the authority either to direct the Attorney General not to impose a final order or to order the agency to comply with such an order. In either case, the judicial review provisions of sections 274A(e)(8) and (9) simply would not be triggered.2 Enforcement Actions Against the Judiciary As noted above, the definition o f “ person or other entity” applies to the judicial branch, as well as to the legislative and executive branches. Application of section 274A to the judiciary raises questions concerning the possible assertion of judicial immunity. W e do not believe that any plausible claim of judicial immunity from section 274A could be made in the wake of Forrester v. White, 484 U.S. 219 (1988). In F orrester, the Supreme Court concluded that questions regarding the scope o f absolute judicial immunity must be evaluated in light of the purposes served by such immunity. Id. at 226-27. That “ functional approach” looks at the nature o f the official functions exercised and evaluates “ the effect that exposure to par­ ticular forms of liability would likely have on the appropriate exercise of those functions.” Id. at 224. The Court in Forrester applied the functional approach to reject a judge’s claim of absolute immunity from civil liability for his decision to demote and discharge a probation officer. In doing so, the Court distinguished between “judicial acts” and “ the administrative, legislative, or executive func­ tions that judges may on occasion be assigned by law to perform.” Id. at 227. It reasoned that, with respect to the latter category, the danger of “ officials’ being deflected from the effective performance o f their duties” was not substantial enough to warrant absolute immunity. Id. at 230. The Court held that administra­ 2 Indeed, the Executive Branch has various procedures in place to avoid litigation and promote internal dispute resolution See, e g , Exec. O rder No 12146, 3 C.F R. 409 (1979) 36 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities tive decisions, including personnel decisions, are not regarded as judicial acts and thus are not immunized “ even though they may be essential to the very func­ tioning of the courts.” Id. at 228. Forrester's holding makes clear that personnel decisions such as those that are the subject of section 274A enforcement actions do not warrant absolute judicial immunity. Such actions fall into the category of “ administrative, legislative, or executive functions” that a judge might perform, rather than “judicial acts” that merit the protection offered by absolute immunity. Nor do we see any separation of powers problem with executive enforcement of section 274A against the judiciary. The Supreme Court has made clear that not all interactions between the judiciary and the executive branches, even those that might be categorized as “ quite burdensome,” are necessarily constitutionally forbidden. Clinton v. Jones, 520 U.S. 681, 702 (1997). It is only where the burden imposed by one branch is so onerous as to “ impair another in the performance of its constitutional duties” that the general separation of powers principle is vio­ lated. Id. at 701 (citing Loving v. United States, 517 U.S. 748 (1996)). Although an enforcement action under section 274A would impose some administrative bur­ dens upon its subject — to the extent, for example, that it required compliance with subpoenas issued or cooperation with investigative efforts — such burdens would certainly not be so demanding as to interfere with the judiciary’s proper execution of its constitutional obligations. See Mistretta v. United States, 488 U.S. 361, 409 (1989) (President’s appointment and removal power over federal Sen­ tencing Commission does not “ prevent[], even potentially, the Judicial Branch from performing its constitutionally assigned functions” ). Indeed, in the context of criminal law enforcement, courts have consistently upheld the power of the executive branch to prosecute sitting judges, notwith­ standing the more significant intrusion upon the judiciary occasioned by such enforcement, and have rejected the judges’ claims that such executive action undermines judicial autonomy. See, e.g., United States v. Claiborne, 727 F.2d 842, 8 4 5 ^ 9 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124, 1 1 4 2 ^4 (7th Cir.), cert, denied, 417 U.S. 976 (1974). As the court in Hastings explained in rejecting a rule that would have granted sitting federal judges immunity from criminal prosecution: “ [T]he minuscule increment in judicial independence that might be derived from the proposed rule would be outweighed by the tremendous harm that the rule would cause to another treasured value of our constitutional system: no man in this country is so high that he is above the law.” 681 F.2d at 711. If executive enforcement of the criminal laws against the judiciary (which could include indictment, prosecution, and imprisonment of a sitting judge) does not undermine judicial independence, we cannot say that the comparatively negligible intrusion upon the judiciary that might be occasioned by executive enforcement of section 274A is a threat to judicial autonomy. 37 Opinions o f the Office o f Legal Counsel in Volume 24 Enforcement Actions A gainst Congress For similar reasons, we see no general separation of powers problem with applying section 274A against Congress. The more significant question is whether enforcement actions may be initiated against Members of Congress or congres­ sional offices consistent with the legislative immunity accorded by the Speech or Debate Clause of the Constitution.3 The Speech or Debate Clause provides that, “ for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const, art. I, §6, cl. 1. In interpreting the Speech or Debate Clause, the Supreme Court has not confined its protections literally to “ Speech or Debate in either House” but has given it “ a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber.” Hutchinson v. Proxmire, 443 U.S. I l l , 124 (1979). Thus, in United States v. Johnson , 383 U.S. 169 (1966), the Court foreclosed prosecution of a Member of the House of Rep­ resentatives for allegedly taking a bribe in return for delivering a speech on the floor of the House. The indictment necessarily focused upon both Johnson’s motives in making the speech and the contents of the speech itself, and the Court concluded that the Congressman’s motive “ is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.” Id. at 180. In holding Johnson immune from prosecution under the Speech or Debate Clause, however, the Court emphasized that its holding was limited to the facts before it, and reserved the question whether Speech or Debate immunity would preclude “ a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.” Id. at 185. Six years later, in United States v. Brewster, 408 U.S. 501 (1972), the Supreme Court resolved that question by holding that Speech or Debate immunity did not bar prosecution of a member of Congress for soliciting and receiving sums of money in return for ‘ ‘official acts performed by him in respect to his action, vote and decision” on proposed postal rate legislation, where the Member could successfully be prosecuted without inquiry into either legislative acts or their moti­ vation: The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation 3 With respect to the applicability o f section 274A against Congress, we will here address only the general question o f the availability o f speech and debate immunity W e do not address the more specific question of who the proper defendant may be in individual enforcement actions. W e also do not address the question w hether the constitutional privilege against arrest except in cases o f “ Treason, Felony and Breach of the Peace” that is accorded Members during sessions o f Congress would preclude enforcing a subpoena in an administrative proceeding against a Member while C ongress is in session U S Const art 1, § 6 , cl. 1. See Gravel v. United States, 408 U S . 606, 614-15 (1972). 38 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise. Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. Id. at 526. Accordingly, the Court in Brewster confirmed that the Clause does not protect all conduct relating in any way to the legislative process, but is “ limited to an act which was clearly a part of the legislative process — the due functioning of the process.” Id. at 515-16 (emphasis in original). Proper attention to the history and purposes of the Clause, including the underlying separation of powers con­ cerns, did not justify a broader reading: We would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its his­ tory, to include all things in any way related to the legislative process. Given such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be unable somehow to “ relate” to the legislative process. Id. at 516. The Court further clarified the proper scope of the Speech or Debate Clause in Gravel v. United States, 408 U.S. 606 (1972), decided the same day as Brewster. Senator Gravel made copies of the Pentagon Papers part of the public record of a meeting of the Senate subcommittee that he chaired. Subsequently, the press reported that Senator Gravel had separately made arrangements with a private press to publish the papers. A federal grand jury that was investigating alleged criminal conduct with respect to the public disclosure of these classified documents subpoenaed Senator Gravel’s aide to testify, and Senator Gravel sought to quash the subpoena under the Speech or Debate Clause.4 Id. at 608-09. The Court held that the action under scrutiny — the publication by a nongovernmental 4 The Court concluded that “ the Speech or Debate Clause applies not only to a M ember [of Congress] but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself ” Id at 618 39 Opinions o f the Office o f Legal Counsel in Volume 24 press of classified documents — was not “ protected speech or debate within the meaning of Art. I, § 6, cl. 1 of the Constitution.” Id. at 622. The Court began its analysis by noting that simply because “ Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Id. at 625. It then explained: The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of pro­ posed legislation or with respect to other matters which the Con­ stitution places within the jurisdiction o f either House. Id. The hearings were complete and the record of the hearings was available. Subsequent publication of the Pentagon Papers by a nonprofit press was neither requested nor authorized by the Senate and ‘ ‘was in no way essential to the delib­ erations of the Senate.” Id. Because questioning regarding that publication did not “ threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence,” the Court determined that this conduct was not protected by the Speech or Debate Clause. Id. Although the Supreme Court has thus delineated the general scope of Speech or Debate immunity, it has not yet resolved the question of its applicability to employment-related decisions. In Davis v. Passman, 442 U.S. 228 (1979), the Court specifically reserved the question whether a Congressman’s allegedly discriminatory decision to fire his administrative assistant was shielded by the clause. Id. at 236 n .l l , 248-49. Two courts of appeals, however, have addressed this issue. In the original panel decision in D avis,5 the Fifth Circuit determined that the Speech or Debate Clause did not protect a Congressman from a suit by a former aide who alleged that the Congressman unconstitutionally discriminated against her on the basis of her sex when he dismissed her. 544 F.2d 865, 878 (5th Cir. 1977), r e v ’d on other grounds, 571 F.2d 793 (1978) (en banc), rev’d, 442 U.S. 228 (1979). The Senator had written the aide a letter commending her job perform­ ance, but concluding that it was ‘‘essential that the understudy to [his] Administra­ 5 The onginal panel decision m Davis w as the only decision in the history of lhat case to address the Speech or Debate Clause issue. The Fifth Circuit, in its en banc opinion, did not reach the Speech or Debate Clause question because it concluded that the plaintiff could not maintain a private cause of action under the due process clause of the Fifth Amendment. Davis v Passman, 571 F.2d 793, 801 (5th C ir 1978). The Supreme Court reversed on that question, holding that both a cause o f action and a damages remedy could be implied under the Fifth Amendment, however, because the en banc Court of A ppeals had not considered the Speech or Debate Clause issue, the Supreme Court also declined to reach it Davis, 442 U.S at 236 n i l , 248-49 40 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities tive Assistant be a man.” Id. at 867 n.l. Reciting familiar passages from Gravel that limit the scope of the clause to “ legislative acts,” the panel concluded: [Representatives are not immune from inquiry into their decisions to dismiss staff members. Such dismissal decisions certainly are not “ an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings . . . .” [quoting Gravel, 408 U.S. at 625]. Peripheral or tangential activities of a representative must not be confused with the legisla­ tive core. . . . When members of Congress dismiss employees they are neither legislating nor formulating legislation. The fear of judicial inquiry into dismissal decisions cannot possibly affect a legislator’s decisions on matters pending before Congress. The democratic process remains unfettered. Id. at 880. Its holding, the panel believed, “ g[a]ve effect to the Supreme Court’s mandate in Gravel. ‘Legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.’ ” Id. at 881 (quoting Gravel, 408 U.S. at 615). Because exceptions to the constitutional premise that all persons are equal before the law “ must be limited, guarded, and sparingly employed,” the court insisted that “ Davis is entitled to have her claim heard on the merits.” Id. The Court of Appeals for the District of Columbia Circuit concluded almost a decade later, however, that legislative immunity did shield a Congressman from a suit challenging an employment decision. Browning v. Clerk, U.S. House o f Representatives, 789 F.2d 923 (D.C. Cir.), cert, denied, 479 U.S. 996 (1986). In Browning, a black woman who was discharged from her job as Official Reporter of the House of Representatives claimed that her dismissal was racially motivated, in violation of the Fifth Amendment. 789 F.2d at 924-25. The court, relying on Gravel, asserted that: Personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process. . . . Thus, if the employee’s duties are an integral part of the legislative process, such that they are directly assisting members o f Congress in the “ discharge of their functions,” personnel decisions affecting them are correspond­ ingly legislative and shielded from judicial scrutiny. Id. at 928-29 (citation omitted). Applying this standard, the court discussed at length the importance of the role of an Official Reporter in the communicative and deliberative processes of Congress, and concluded that such reporting was 41 Opinions o f the Office o f Legal Counsel in Volume 24 indeed an integral part of legislative functioning. Id. at 929-30. In coming to this conclusion, the court pointed out that, in order to resolve Browning’s claims, the judiciary would necessarily have to inquire about matters at the very heart of the legislative process, such as the nature of the hearings to which Browning was assigned, the purposes underlying those hearings, and whether Browning’s performance frustrated those pur­ poses. Id. at 930. There are two ways to read the decision in Browning. First, Browning could be read for the proposition that, in determining whether Speech or Debate immu­ nity attaches to any particular employment decision, the proper focus is whether judicial scrutiny of that decision would necessitate any inquiry into legislative conduct or motivations. If so, then the employment decision relates sufficiently to the legislative process to merit immunity. See id.; see also House of Representa­ tives’ Brief in Opposition to Petition for Certiorari, Browning v. Clerk, House o f Representatives (No. 86-547), at 5. Alternatively, Browning could be read more broadly, to suggest that the applicability of Speech or Debate immunity in the employment context depends solely upon the nature of the employment at issue. If the employee’s duties can be said to be an “ integral part of the legislative process,” immunity attaches to any personnel decisions regarding that employee; if the employee’s duties cannot be so characterized, it does not. Browning, 789 F.2d at 929. While we acknowledge that there is language in Browning to support the second reading that focuses on employment duties, Supreme Court Speech and Debate precedents, as well as the specific facts of Browning, compel our conclusion that the decision must be read more narrowly.6 Under G ravel and Brewster, the mere 6 W e note too that there is some question w hether and how the Supreme C ourt’s ruling in Forrester v. White bears on Browning As noted above, Forrester requires a “ functional” approach to claims of absolute judicial immu­ nity in the context o f employment decisions. T h e distinction that Forrester makes between “ judicial acts” and “ the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform” is based on the rationale that, with respect to the latter category, the danger of “ officials’ being deflected from the effective performance o f their duties” is not substantial enough to warrant absolute immunity Forrester, 484 U S. at 230. That rationale could be applied equally to the administrative functions of the legislative branch, such as hiring o f personnel, and verification that they are not unauthorized aliens. In the wake o f Forrester, the District of C olum bia Circuit, in Gross v Winter, 876 F 2 d 165 (D C . Cir. 1989), applied Forrester's functional approach in rejecting a D C. Council m ember’s claim of legislative immunity for her allegedly discriminatory decision to fire a probation officer Gross recognized that “ [tjhe Supreme Court’s strict ‘functional’ immunity analysis in Forrester . contrasts with the employee-centnc approach this court took in B row ning." Id at 171 The court found Forrester, not Browning, controlling' The functions o f probation officers and legislative aides are therefore equally important to the due func­ tioning o f the judicial and legislative processes, respectively Nonetheless, under Forrester, the functions judges and legislators exercise in making personnel decisions affecting such employees are administrative, not judicial or legislative. Forrester's functional approach also forecloses the somewhat curious logic that the greater the em ployee’s importance to the legislative process the greater should be the state legislator’s freedom to violate that em ployee’s constitutional rights 42 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities fact that an individual may have some duties that relate to core legislative proc­ esses does not make all matters bearing on that person’s employment “ an integral part of the deliberative and communicative processes by which Members partici­ pate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625. As the Court noted in Brewster, in a passage relied upon in Browning: “ The only reasonable reading of the Clause, consistent with its history and pur­ pose, is that it does not prohibit inquiry into activities that are casually or inciden­ tally related to legislative affairs but not a part of the legislative process itself.” Id. at 528, quoted in 789 F.2d at 927. Under that standard, even if a particular employee’s duties could be said to relate to the legislative process, there might be any number of purely administrative decisions made with respect to that employee that would have nothing to do with the employee’s fulfillment of his or her duties and that therefore would not merit legislative immunity.7 The Speech or Debate Clause arguably was implicated in Browning not because the job of official reporter for the House of Representatives included duties that were integral to the legislative process, 789 F.2d at 928, but because the disputed factual issue in the employment claim was whether the reporter was fired for poor job performance or for racial reasons. Id. at 930. We believe that the more sweeping language in Browning must be read in light of those facts. The District of Columbia Circuit court concluded that the particular employment decision at issue in Browning presented a risk of judicial second-guessing of judgments “ at the very heart of the legislative process.” Id. at 930. Legislative immunity was warranted in Browning, on the narrower view, because assessing the adequacy of Browning’s job performance would have required the trial court to “ inquire into matters at the very heart of the legislative process” — such as the nature and purpose of the hearings to which Browning had been assigned. Id. In contrast, permitting the INS to enforce section 274A against Congress would not, thwart any of the purposes underlying the Speech or Debate Clause, for Id at 172 However, in applying Forrester to a case involving a D.C. Council member rather than a M ember of Congress, the court in Gross expressly noted that it was not reaching the question “ whether special considerations applicable to members of Congress, such as separation-of-powers concerns, continue to justify the absolute immunity standard for congressional personnel decisions adopted in Brow ning." Id More recently, in United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir 1995), the District o f Columbia Circuit again reserved the question whether Browning remained good law after Forrester, because the employees at issue lacked “ even the most tangential relationship to the ‘legislative process’ ” and employment decisions respecting them thus could not be immunized even under the broadest reading of Browning. 7 The broader reading o f Browning is out of step not only with the Supreme Court’s precedents, but also with the District o f Columbia Circuit’s own pnor law The Browning court appeared to misread an earlier decision, Walker v. Jones, 733 F.2d 923 (D.C Cir 1984), in which the court denied Speech or Debate Clause immunity to congres­ sional defendants who dismissed a food service manager for allegedly discriminatory reasons Id at 931. Browning cited Walker as the genesis o f a standard focusing on the nature o f the em ployee’s duties, and immunizing all personnel decisions with respect to employees whose duties closely relate to the legislative process Id at 925. In fact, W alker— like Johnson, Brewster, and Gravel — properly focused directly on the legislator’s actions, and considered the em ployee’s duties only as potentially relevant to the question whether a personnel action regarding that employee might implicate the legislator’s motives Id 43 Opinions o f the Office o f Legal Counsel in Volume 24 executive enforcement would not involve inquiry into legislative acts or the motives for legislative acts. Nor would it “ threaten the integrity or independence o f [Congress] by impermissibly exposing its deliberations to executive influence.” Gravel, 408 U.S. at 625. Section 274A applies to the “ hiring, recruiting, or refer­ ring” of individuals for employment in the United States, and requires employers to verify, by examining certain specified documents, that individuals being consid­ ered for employment are not unauthorized aliens. 8 U.S.C. § 1324a(b), (b)(1). Once the employer has examined these documents, the employer must attest in writing to the verification and must retain the verification form for future inspec­ tion. Id. § 1324a(b)(l)(A), (b)(3). Any investigation by the INS as to whether an employer has complied with these verification requirements or whether the employer knowingly hired or continued to employ an unlawful alien thus would not involve inquiry into the employee’s duties or job performance. Rather, such an investigation would require examination of the verification form, and possibly the circumstances surrounding the employer’s execution of that form, including whether the employer had complied in good faith with the attestation and docu­ ment retention requirements. Regardless of how integrally connected to the legisla­ tive process the employee’s duties might be, the actions of a Member of Congress, in complying with these verification requirements or in knowingly hiring an unlawful alien, could not be characterized as “ legislative acts,” and any inquiry into section 274A compliance would not reach such legislative acts or the motives underlying them. The ministerial requirements imposed under section 274A are at most “ casually or incidentally related to legislative affairs.” Brewster, 408 U.S. at 528. Like the conduct at issue in Brewster, knowingly hiring an unlawful alien “ is, obviously, no part of the legislative process or function; it is not a legislative act.” Id. at 526. We therefore conclude that executive enforcement of section 274A against legislative branch entities is not precluded by the Speech or Debate Clause. CONCLUSION The plain language of section 274A makes clear that its enforcement provisions apply to persons and entities within all three branches of the federal government. We conclude that the INS can exercise its enforcement authority under section 274A against persons and entities within the executive, judicial, and legislative branches in a manner consistent with the Constitution. RANDOLPH D. MOSS Acting Assistant Attorney General Office o f Legal Counsel 44

Write a legal research memo on the following topic.

Enforcement of INA Employer Sanctions Provisions Against Federal Government Entities Section 274A o f the Im m igration and N ationality Act, which establishes em ployer verification require­ m ents and authorizes the Im m igration and N aturalization Service to take enforcem ent actions against em ployers fo r failure to com ply with those requirem ents, authorizes im position o f em ployer sanctions against federal governm ent entities. T he INS can exercise this enforcem ent authority against persons and entities within all three branches o f the federal governm ent in a m anner consistent with the C onstitution. March 15, 2000 M em orandum O p in io n I m m ig r a t i o n and fo r th e G en era l C o u n sel N a t u r a l iz a t io n S e r v ic e You have requested our advice as to whether section 274A of the Immigration and Nationality Act (“ INA” ), which establishes employer verification require­ ments and authorizes the Immigration and Naturalization Service (“ INS” ) to take enforcement action against employers for failure to comply with those require­ ments, can be applied to federal government entities, in light of the possible con­ stitutional concerns that such enforcement action might raise. As we explain more fully below, we believe that section 274A clearly contemplates the imposition of employer sanctions against federal government entities. Moreover, with respect to employers within all three branches, we conclude that the INS can exercise its authority to take enforcement actions against such persons or entities consistent with the Constitution. BACKGROUND Section 274A of the INA provides for the assessment of civil monetary penalties and cease and desist orders against any “ person or other entity” who has know­ ingly hired, or knowingly continued to employ, any unauthorized alien or who has failed to comply with the employment verification system mandated by section 274A(b).' 8 U.S.C. §§ 1324a(e)(4Me)(5) (1994 & Supp. II 1996). As used in section 274A, the term “ entity” includes “ an entity in any branch of the Federal Government.” Id. § 1324a(a)(7). The INS has the authority to investigate complaints of potential violations of section 274A by inspecting employment eligibility verification forms maintained by employers and compelling the production of evidence or the attendance of witnesses by subpoena. Id. § 1324a(e)(2). If, based upon such an investigation, the INS determines that an employer has violated section 274A, it serves a Notice 1 Criminal penalties and injunctive relief may also be imposed against persons or entities engaged in a “ pattern or practice o f violations” of section 274A. See 8 U.S C. § 1324a(f)( 1M 2 ) 33 Opinions o f the Office o f Legal Counsel in Volume 24 o f Intent to Fine ( “ NTF” ) on the employer. 8 C.F.R. § 274a.9 (1998). An employer served with a NIF may request an evidentiary hearing before an Administrative Law Judge ( “ ALJ” ). 8 U.S.C. § 1324a(e)(3). If the employer does not request a hearing, the NIF becomes a final, unappealable order, id.\ if a hearing is requested, the ALJ’s subsequent decision and order become the final decision and order of the Attorney General, unless a reviewing official or the Attorney General herself modifies or vacates the order, pursuant to regulations. See id. § 1324a(e)(7). Section 274A also provides for judicial review and judicial enforcement of final orders. Under section 274A(e)(8), “ [a] person or entity adversely affected by a final order respecting an assessment may, within 45 days after the date the final order is issued, file a petition in the Court of Appeals for the appropriate circuit for review of the order.” 8 U.S.C. § 1324a(e)(8). If a person or entity refuses to comply with any final order, the statute provides that “ the Attorney General shall file a suit to seek compliance with the order in any appropriate district court of the United States.” Id. § 1324a(e)(9). DISCUSSION As noted above, section 274A authorizes the INS to assess civil monetary pen­ alties against any “ person or other entity” that violates the employment verification provisions of that section. Section 274A(a)(7) provides: “ For purposes of this section, the term ‘entity’ includes an entity in any branch of the Federal Government.” 8 U.S.C. § 1324a(a)(7). We must first determine whether Congress intended to authorize the INS to assess administrative penalties and otherwise bring enforcement proceedings against governmental employers. A straightforward reading of the statutory text leads us to conclude that that was clearly Congress’s intent. Prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( “ IIRIRA” ), Pub. L. No. 104-208, 110 Stat. 3009-546, section 274A contained no provision defining the scope of the term “ entity.” In fact, this Office deter­ mined in 1992 that the absence at that time of any definition of the phrase “ person or other entity” from the INA, together with the lack of evidence that Congress intended the phrase to include federal agencies, precluded application of the term “ entity” to a federal government agency in the context of the employer antidiscrimination provision of section 274B. See Enforcement Jurisdiction o f the Spe­ cial Counsel fo r Immigration Related Unfair Employment Practices, 16 Op. O.L.C. 121, 123-24 (1992). In 1996, Congress amended section 274A to make clear that the term “ entity” did apply to federal government entities. Section 412(d) of IIRIRA added new subparagraph 274A(a)(7) to the INA: 34 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities “ Application to Federal Government — For purposes of this sec­ tion, the term ‘entity’ includes an entity in any branch of the Fed­ eral Government.” 8 U.S.C. § 1324a(a)(7). We believe the language of that provision is manifest: for purposes of section 274A, the term “ entity” applies to all federal government employers, including agencies within the executive, judicial and legislative branches. The House Conference Report accompanying IIRIRA confirms our reading of section 412(d): “ This provision clarifies that the Federal government must comply with section 274A of the Immigration and Nationality Act . . . .” H.R. Conf. Rep. No. 104—828, at 237 (1996). The plain text of the statute, together with its legislative history, thus leaves no question as to Congress’s intent that federal government entities be covered by section 274A, including the investiga­ tion, assessment and enforcement provisions of section 274A(e). Having concluded that Congress intended to authorize the INS to assess civil penalties and bring enforcement actions against other governmental employers, we further conclude that the INS can exercise that authority consistent with the Constitution. Because different constitutional issues are raised by INS enforcement of section 274A against executive agencies, the judiciary, and Congress, we will separately address application of the statute to each branch. Enforcement Actions Against Executive Branch Agencies The President has authority under Article II of the Constitution to supervise the executive branch, which includes the authority to resolve disputes within that branch. Authorizing the INS to assess civil penalties against other agencies does not give rise to a constitutional problem under Article II. The critical point is that the INA “ does not preclude the President from authorizing any process he chooses to resolve disputes between [the INS] and other federal agencies regarding the assessment of administrative penalties.” Administrative Assessment o f Civil Penalties Against Federal Agencies Under the Clean A ir Act, 21 Op. O.L.C. 109, 116 (1997) (“ EPA Opinion” ). Under section 274A, any agency that disputes an INS assessment has the opportunity to voice its objections in an administrative hearing before an ALJ, whose decision is subject to review by the Attorney Gen­ eral or her delegate. 8 U.S.C. § 1324a(e)(7). There is no limitation in the statute on the President’s authority to review the matter if he chooses to do so, and the absence of any such restriction on his discretion is dispositive. EPA Opinion, 21 Op. O.L.C. at 116. In the context of one federal executive agency assessing civil penalties against another, the statutory provision of judicial procedures to enforce those penalties also might be thought to raise constitutional concerns related to the Article III limitation on the jurisdiction of the federal courts to actual cases and controversies. 35 Opinions o f the Office o f Legal Counsel in Volume 24 The civil action provisions contained in sections 274A(e)(8) and (9) might be construed to suggest that one executive branch agency may sue another in federal court over an administrative penalty. This Office has consistently held that “ ‘law­ suits between two federal agencies are not generally justiciable.’ ” EPA Opinion, 21 Op. O.L.C. at 111 (quoting Constitutionality o f Nuclear Regulatory Commis­ sion ’s Imposition o f C ivil Penalties on the A ir Force, 13 Op. O.L.C. 131, 138 (1989)). Federal courts may adjudicate only actual cases and controversies, and a lawsuit involving the same party as both plaintiff and defendant — which would generally be the result if one executive agency sued another — does not constitute an actual controversy. However, in practice, such a scenario would not arise, for the internal executive branch dispute-resolution process described above would either obviate the need for a final administrative order or preclude noncompliance with such an order. In the event o f any dispute between INS and another executive agency as to a civil penalty assessment, the President, as head of the executive branch, has the authority either to direct the Attorney General not to impose a final order or to order the agency to comply with such an order. In either case, the judicial review provisions of sections 274A(e)(8) and (9) simply would not be triggered.2 Enforcement Actions Against the Judiciary As noted above, the definition o f “ person or other entity” applies to the judicial branch, as well as to the legislative and executive branches. Application of section 274A to the judiciary raises questions concerning the possible assertion of judicial immunity. W e do not believe that any plausible claim of judicial immunity from section 274A could be made in the wake of Forrester v. White, 484 U.S. 219 (1988). In F orrester, the Supreme Court concluded that questions regarding the scope o f absolute judicial immunity must be evaluated in light of the purposes served by such immunity. Id. at 226-27. That “ functional approach” looks at the nature o f the official functions exercised and evaluates “ the effect that exposure to par­ ticular forms of liability would likely have on the appropriate exercise of those functions.” Id. at 224. The Court in Forrester applied the functional approach to reject a judge’s claim of absolute immunity from civil liability for his decision to demote and discharge a probation officer. In doing so, the Court distinguished between “judicial acts” and “ the administrative, legislative, or executive func­ tions that judges may on occasion be assigned by law to perform.” Id. at 227. It reasoned that, with respect to the latter category, the danger of “ officials’ being deflected from the effective performance o f their duties” was not substantial enough to warrant absolute immunity. Id. at 230. The Court held that administra­ 2 Indeed, the Executive Branch has various procedures in place to avoid litigation and promote internal dispute resolution See, e g , Exec. O rder No 12146, 3 C.F R. 409 (1979) 36 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities tive decisions, including personnel decisions, are not regarded as judicial acts and thus are not immunized “ even though they may be essential to the very func­ tioning of the courts.” Id. at 228. Forrester's holding makes clear that personnel decisions such as those that are the subject of section 274A enforcement actions do not warrant absolute judicial immunity. Such actions fall into the category of “ administrative, legislative, or executive functions” that a judge might perform, rather than “judicial acts” that merit the protection offered by absolute immunity. Nor do we see any separation of powers problem with executive enforcement of section 274A against the judiciary. The Supreme Court has made clear that not all interactions between the judiciary and the executive branches, even those that might be categorized as “ quite burdensome,” are necessarily constitutionally forbidden. Clinton v. Jones, 520 U.S. 681, 702 (1997). It is only where the burden imposed by one branch is so onerous as to “ impair another in the performance of its constitutional duties” that the general separation of powers principle is vio­ lated. Id. at 701 (citing Loving v. United States, 517 U.S. 748 (1996)). Although an enforcement action under section 274A would impose some administrative bur­ dens upon its subject — to the extent, for example, that it required compliance with subpoenas issued or cooperation with investigative efforts — such burdens would certainly not be so demanding as to interfere with the judiciary’s proper execution of its constitutional obligations. See Mistretta v. United States, 488 U.S. 361, 409 (1989) (President’s appointment and removal power over federal Sen­ tencing Commission does not “ prevent[], even potentially, the Judicial Branch from performing its constitutionally assigned functions” ). Indeed, in the context of criminal law enforcement, courts have consistently upheld the power of the executive branch to prosecute sitting judges, notwith­ standing the more significant intrusion upon the judiciary occasioned by such enforcement, and have rejected the judges’ claims that such executive action undermines judicial autonomy. See, e.g., United States v. Claiborne, 727 F.2d 842, 8 4 5 ^ 9 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124, 1 1 4 2 ^4 (7th Cir.), cert, denied, 417 U.S. 976 (1974). As the court in Hastings explained in rejecting a rule that would have granted sitting federal judges immunity from criminal prosecution: “ [T]he minuscule increment in judicial independence that might be derived from the proposed rule would be outweighed by the tremendous harm that the rule would cause to another treasured value of our constitutional system: no man in this country is so high that he is above the law.” 681 F.2d at 711. If executive enforcement of the criminal laws against the judiciary (which could include indictment, prosecution, and imprisonment of a sitting judge) does not undermine judicial independence, we cannot say that the comparatively negligible intrusion upon the judiciary that might be occasioned by executive enforcement of section 274A is a threat to judicial autonomy. 37 Opinions o f the Office o f Legal Counsel in Volume 24 Enforcement Actions A gainst Congress For similar reasons, we see no general separation of powers problem with applying section 274A against Congress. The more significant question is whether enforcement actions may be initiated against Members of Congress or congres­ sional offices consistent with the legislative immunity accorded by the Speech or Debate Clause of the Constitution.3 The Speech or Debate Clause provides that, “ for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const, art. I, §6, cl. 1. In interpreting the Speech or Debate Clause, the Supreme Court has not confined its protections literally to “ Speech or Debate in either House” but has given it “ a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber.” Hutchinson v. Proxmire, 443 U.S. I l l , 124 (1979). Thus, in United States v. Johnson , 383 U.S. 169 (1966), the Court foreclosed prosecution of a Member of the House of Rep­ resentatives for allegedly taking a bribe in return for delivering a speech on the floor of the House. The indictment necessarily focused upon both Johnson’s motives in making the speech and the contents of the speech itself, and the Court concluded that the Congressman’s motive “ is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.” Id. at 180. In holding Johnson immune from prosecution under the Speech or Debate Clause, however, the Court emphasized that its holding was limited to the facts before it, and reserved the question whether Speech or Debate immunity would preclude “ a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.” Id. at 185. Six years later, in United States v. Brewster, 408 U.S. 501 (1972), the Supreme Court resolved that question by holding that Speech or Debate immunity did not bar prosecution of a member of Congress for soliciting and receiving sums of money in return for ‘ ‘official acts performed by him in respect to his action, vote and decision” on proposed postal rate legislation, where the Member could successfully be prosecuted without inquiry into either legislative acts or their moti­ vation: The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation 3 With respect to the applicability o f section 274A against Congress, we will here address only the general question o f the availability o f speech and debate immunity W e do not address the more specific question of who the proper defendant may be in individual enforcement actions. W e also do not address the question w hether the constitutional privilege against arrest except in cases o f “ Treason, Felony and Breach of the Peace” that is accorded Members during sessions o f Congress would preclude enforcing a subpoena in an administrative proceeding against a Member while C ongress is in session U S Const art 1, § 6 , cl. 1. See Gravel v. United States, 408 U S . 606, 614-15 (1972). 38 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise. Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. Id. at 526. Accordingly, the Court in Brewster confirmed that the Clause does not protect all conduct relating in any way to the legislative process, but is “ limited to an act which was clearly a part of the legislative process — the due functioning of the process.” Id. at 515-16 (emphasis in original). Proper attention to the history and purposes of the Clause, including the underlying separation of powers con­ cerns, did not justify a broader reading: We would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its his­ tory, to include all things in any way related to the legislative process. Given such a sweeping reading, we have no doubt that there are few activities in which a legislator engages that he would be unable somehow to “ relate” to the legislative process. Id. at 516. The Court further clarified the proper scope of the Speech or Debate Clause in Gravel v. United States, 408 U.S. 606 (1972), decided the same day as Brewster. Senator Gravel made copies of the Pentagon Papers part of the public record of a meeting of the Senate subcommittee that he chaired. Subsequently, the press reported that Senator Gravel had separately made arrangements with a private press to publish the papers. A federal grand jury that was investigating alleged criminal conduct with respect to the public disclosure of these classified documents subpoenaed Senator Gravel’s aide to testify, and Senator Gravel sought to quash the subpoena under the Speech or Debate Clause.4 Id. at 608-09. The Court held that the action under scrutiny — the publication by a nongovernmental 4 The Court concluded that “ the Speech or Debate Clause applies not only to a M ember [of Congress] but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself ” Id at 618 39 Opinions o f the Office o f Legal Counsel in Volume 24 press of classified documents — was not “ protected speech or debate within the meaning of Art. I, § 6, cl. 1 of the Constitution.” Id. at 622. The Court began its analysis by noting that simply because “ Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Id. at 625. It then explained: The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of pro­ posed legislation or with respect to other matters which the Con­ stitution places within the jurisdiction o f either House. Id. The hearings were complete and the record of the hearings was available. Subsequent publication of the Pentagon Papers by a nonprofit press was neither requested nor authorized by the Senate and ‘ ‘was in no way essential to the delib­ erations of the Senate.” Id. Because questioning regarding that publication did not “ threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence,” the Court determined that this conduct was not protected by the Speech or Debate Clause. Id. Although the Supreme Court has thus delineated the general scope of Speech or Debate immunity, it has not yet resolved the question of its applicability to employment-related decisions. In Davis v. Passman, 442 U.S. 228 (1979), the Court specifically reserved the question whether a Congressman’s allegedly discriminatory decision to fire his administrative assistant was shielded by the clause. Id. at 236 n .l l , 248-49. Two courts of appeals, however, have addressed this issue. In the original panel decision in D avis,5 the Fifth Circuit determined that the Speech or Debate Clause did not protect a Congressman from a suit by a former aide who alleged that the Congressman unconstitutionally discriminated against her on the basis of her sex when he dismissed her. 544 F.2d 865, 878 (5th Cir. 1977), r e v ’d on other grounds, 571 F.2d 793 (1978) (en banc), rev’d, 442 U.S. 228 (1979). The Senator had written the aide a letter commending her job perform­ ance, but concluding that it was ‘‘essential that the understudy to [his] Administra­ 5 The onginal panel decision m Davis w as the only decision in the history of lhat case to address the Speech or Debate Clause issue. The Fifth Circuit, in its en banc opinion, did not reach the Speech or Debate Clause question because it concluded that the plaintiff could not maintain a private cause of action under the due process clause of the Fifth Amendment. Davis v Passman, 571 F.2d 793, 801 (5th C ir 1978). The Supreme Court reversed on that question, holding that both a cause o f action and a damages remedy could be implied under the Fifth Amendment, however, because the en banc Court of A ppeals had not considered the Speech or Debate Clause issue, the Supreme Court also declined to reach it Davis, 442 U.S at 236 n i l , 248-49 40 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities tive Assistant be a man.” Id. at 867 n.l. Reciting familiar passages from Gravel that limit the scope of the clause to “ legislative acts,” the panel concluded: [Representatives are not immune from inquiry into their decisions to dismiss staff members. Such dismissal decisions certainly are not “ an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings . . . .” [quoting Gravel, 408 U.S. at 625]. Peripheral or tangential activities of a representative must not be confused with the legisla­ tive core. . . . When members of Congress dismiss employees they are neither legislating nor formulating legislation. The fear of judicial inquiry into dismissal decisions cannot possibly affect a legislator’s decisions on matters pending before Congress. The democratic process remains unfettered. Id. at 880. Its holding, the panel believed, “ g[a]ve effect to the Supreme Court’s mandate in Gravel. ‘Legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.’ ” Id. at 881 (quoting Gravel, 408 U.S. at 615). Because exceptions to the constitutional premise that all persons are equal before the law “ must be limited, guarded, and sparingly employed,” the court insisted that “ Davis is entitled to have her claim heard on the merits.” Id. The Court of Appeals for the District of Columbia Circuit concluded almost a decade later, however, that legislative immunity did shield a Congressman from a suit challenging an employment decision. Browning v. Clerk, U.S. House o f Representatives, 789 F.2d 923 (D.C. Cir.), cert, denied, 479 U.S. 996 (1986). In Browning, a black woman who was discharged from her job as Official Reporter of the House of Representatives claimed that her dismissal was racially motivated, in violation of the Fifth Amendment. 789 F.2d at 924-25. The court, relying on Gravel, asserted that: Personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process. . . . Thus, if the employee’s duties are an integral part of the legislative process, such that they are directly assisting members o f Congress in the “ discharge of their functions,” personnel decisions affecting them are correspond­ ingly legislative and shielded from judicial scrutiny. Id. at 928-29 (citation omitted). Applying this standard, the court discussed at length the importance of the role of an Official Reporter in the communicative and deliberative processes of Congress, and concluded that such reporting was 41 Opinions o f the Office o f Legal Counsel in Volume 24 indeed an integral part of legislative functioning. Id. at 929-30. In coming to this conclusion, the court pointed out that, in order to resolve Browning’s claims, the judiciary would necessarily have to inquire about matters at the very heart of the legislative process, such as the nature of the hearings to which Browning was assigned, the purposes underlying those hearings, and whether Browning’s performance frustrated those pur­ poses. Id. at 930. There are two ways to read the decision in Browning. First, Browning could be read for the proposition that, in determining whether Speech or Debate immu­ nity attaches to any particular employment decision, the proper focus is whether judicial scrutiny of that decision would necessitate any inquiry into legislative conduct or motivations. If so, then the employment decision relates sufficiently to the legislative process to merit immunity. See id.; see also House of Representa­ tives’ Brief in Opposition to Petition for Certiorari, Browning v. Clerk, House o f Representatives (No. 86-547), at 5. Alternatively, Browning could be read more broadly, to suggest that the applicability of Speech or Debate immunity in the employment context depends solely upon the nature of the employment at issue. If the employee’s duties can be said to be an “ integral part of the legislative process,” immunity attaches to any personnel decisions regarding that employee; if the employee’s duties cannot be so characterized, it does not. Browning, 789 F.2d at 929. While we acknowledge that there is language in Browning to support the second reading that focuses on employment duties, Supreme Court Speech and Debate precedents, as well as the specific facts of Browning, compel our conclusion that the decision must be read more narrowly.6 Under G ravel and Brewster, the mere 6 W e note too that there is some question w hether and how the Supreme C ourt’s ruling in Forrester v. White bears on Browning As noted above, Forrester requires a “ functional” approach to claims of absolute judicial immu­ nity in the context o f employment decisions. T h e distinction that Forrester makes between “ judicial acts” and “ the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform” is based on the rationale that, with respect to the latter category, the danger of “ officials’ being deflected from the effective performance o f their duties” is not substantial enough to warrant absolute immunity Forrester, 484 U S. at 230. That rationale could be applied equally to the administrative functions of the legislative branch, such as hiring o f personnel, and verification that they are not unauthorized aliens. In the wake o f Forrester, the District of C olum bia Circuit, in Gross v Winter, 876 F 2 d 165 (D C . Cir. 1989), applied Forrester's functional approach in rejecting a D C. Council m ember’s claim of legislative immunity for her allegedly discriminatory decision to fire a probation officer Gross recognized that “ [tjhe Supreme Court’s strict ‘functional’ immunity analysis in Forrester . contrasts with the employee-centnc approach this court took in B row ning." Id at 171 The court found Forrester, not Browning, controlling' The functions o f probation officers and legislative aides are therefore equally important to the due func­ tioning o f the judicial and legislative processes, respectively Nonetheless, under Forrester, the functions judges and legislators exercise in making personnel decisions affecting such employees are administrative, not judicial or legislative. Forrester's functional approach also forecloses the somewhat curious logic that the greater the em ployee’s importance to the legislative process the greater should be the state legislator’s freedom to violate that em ployee’s constitutional rights 42 Enforcement o f INA Employer Sanctions Provisions Against Federal Government Entities fact that an individual may have some duties that relate to core legislative proc­ esses does not make all matters bearing on that person’s employment “ an integral part of the deliberative and communicative processes by which Members partici­ pate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625. As the Court noted in Brewster, in a passage relied upon in Browning: “ The only reasonable reading of the Clause, consistent with its history and pur­ pose, is that it does not prohibit inquiry into activities that are casually or inciden­ tally related to legislative affairs but not a part of the legislative process itself.” Id. at 528, quoted in 789 F.2d at 927. Under that standard, even if a particular employee’s duties could be said to relate to the legislative process, there might be any number of purely administrative decisions made with respect to that employee that would have nothing to do with the employee’s fulfillment of his or her duties and that therefore would not merit legislative immunity.7 The Speech or Debate Clause arguably was implicated in Browning not because the job of official reporter for the House of Representatives included duties that were integral to the legislative process, 789 F.2d at 928, but because the disputed factual issue in the employment claim was whether the reporter was fired for poor job performance or for racial reasons. Id. at 930. We believe that the more sweeping language in Browning must be read in light of those facts. The District of Columbia Circuit court concluded that the particular employment decision at issue in Browning presented a risk of judicial second-guessing of judgments “ at the very heart of the legislative process.” Id. at 930. Legislative immunity was warranted in Browning, on the narrower view, because assessing the adequacy of Browning’s job performance would have required the trial court to “ inquire into matters at the very heart of the legislative process” — such as the nature and purpose of the hearings to which Browning had been assigned. Id. In contrast, permitting the INS to enforce section 274A against Congress would not, thwart any of the purposes underlying the Speech or Debate Clause, for Id at 172 However, in applying Forrester to a case involving a D.C. Council member rather than a M ember of Congress, the court in Gross expressly noted that it was not reaching the question “ whether special considerations applicable to members of Congress, such as separation-of-powers concerns, continue to justify the absolute immunity standard for congressional personnel decisions adopted in Brow ning." Id More recently, in United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir 1995), the District o f Columbia Circuit again reserved the question whether Browning remained good law after Forrester, because the employees at issue lacked “ even the most tangential relationship to the ‘legislative process’ ” and employment decisions respecting them thus could not be immunized even under the broadest reading of Browning. 7 The broader reading o f Browning is out of step not only with the Supreme Court’s precedents, but also with the District o f Columbia Circuit’s own pnor law The Browning court appeared to misread an earlier decision, Walker v. Jones, 733 F.2d 923 (D.C Cir 1984), in which the court denied Speech or Debate Clause immunity to congres­ sional defendants who dismissed a food service manager for allegedly discriminatory reasons Id at 931. Browning cited Walker as the genesis o f a standard focusing on the nature o f the em ployee’s duties, and immunizing all personnel decisions with respect to employees whose duties closely relate to the legislative process Id at 925. In fact, W alker— like Johnson, Brewster, and Gravel — properly focused directly on the legislator’s actions, and considered the em ployee’s duties only as potentially relevant to the question whether a personnel action regarding that employee might implicate the legislator’s motives Id 43 Opinions o f the Office o f Legal Counsel in Volume 24 executive enforcement would not involve inquiry into legislative acts or the motives for legislative acts. Nor would it “ threaten the integrity or independence o f [Congress] by impermissibly exposing its deliberations to executive influence.” Gravel, 408 U.S. at 625. Section 274A applies to the “ hiring, recruiting, or refer­ ring” of individuals for employment in the United States, and requires employers to verify, by examining certain specified documents, that individuals being consid­ ered for employment are not unauthorized aliens. 8 U.S.C. § 1324a(b), (b)(1). Once the employer has examined these documents, the employer must attest in writing to the verification and must retain the verification form for future inspec­ tion. Id. § 1324a(b)(l)(A), (b)(3). Any investigation by the INS as to whether an employer has complied with these verification requirements or whether the employer knowingly hired or continued to employ an unlawful alien thus would not involve inquiry into the employee’s duties or job performance. Rather, such an investigation would require examination of the verification form, and possibly the circumstances surrounding the employer’s execution of that form, including whether the employer had complied in good faith with the attestation and docu­ ment retention requirements. Regardless of how integrally connected to the legisla­ tive process the employee’s duties might be, the actions of a Member of Congress, in complying with these verification requirements or in knowingly hiring an unlawful alien, could not be characterized as “ legislative acts,” and any inquiry into section 274A compliance would not reach such legislative acts or the motives underlying them. The ministerial requirements imposed under section 274A are at most “ casually or incidentally related to legislative affairs.” Brewster, 408 U.S. at 528. Like the conduct at issue in Brewster, knowingly hiring an unlawful alien “ is, obviously, no part of the legislative process or function; it is not a legislative act.” Id. at 526. We therefore conclude that executive enforcement of section 274A against legislative branch entities is not precluded by the Speech or Debate Clause. CONCLUSION The plain language of section 274A makes clear that its enforcement provisions apply to persons and entities within all three branches of the federal government. We conclude that the INS can exercise its enforcement authority under section 274A against persons and entities within the executive, judicial, and legislative branches in a manner consistent with the Constitution. RANDOLPH D. MOSS Acting Assistant Attorney General Office o f Legal Counsel 44

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Congressional Authority to Require the States to Lodge Federal Pre-Trial Detainees Congress has pow er to provide for the housing o f federal pre-trial detainees, whether by authorizing the construction o f federal facilities or arranging with the states to use state facilities; however, it does not follow that Congress could require unwilling states to house federal prisoners, particularly w here state reluctance stems from overcrowding in state and local detention facilities. The Tenth Amendment limits Congress’ power to enact legislation w hich interferes with the traditional way in which local governm ents have arranged their affairs; moreover, principles of federalism limit Congress’ pow er to require state officers to perform federal functions. Historically, Congress has been reluctant to require states to house federal prisoners, although it is not clear w hether this reluctance has been motivated by a belief that Congress lacked power to do so by political considerations. A statutory scheme by which Congress would induce, rather than coerce, the states to house federal prisoners through exercise of its spending pow er is more likely to be held constitutional, although here too there are limits on Congress’ pow er to impose coer­ cive conditions on the states’ receipt o f federal funds. May 18, 1981 MEMORANDUM OPINION FOR TH E ASSOCIATE ATTORNEY GENERAL This responds to your request for an opinion whether Congress would have the authority under the Constitution to enact legislation requiring state and local jail authorities to lodge federal pre-trial detain­ ees for a fee to be established either by regulation or agreement. We are concerned that recent decisions of the U.S. Supreme Court make it more likely than not that the courts would hold such legislation to be too intrusive on the states’ sovereignty and therefore unconstitutional under the Tenth Amendment. We suggest you consider devising a legislative scheme which would induce, rather than coerce, the states to offer their facilities to house federal pre-trial detainees. There is no question that Congress has the power under the Constitu­ tion to provide for the housing of federal pre-trial detainees—whether by authorizing the construction of dentention facilities or arranging with the states to use their facilities. E x parte Karstendick, 93 U.S. (3 Otto) 396, 400 (1876). Although this power is not expressly enumerated in Article I, § 8 of the Constitution, the exercise of such power is necessary and proper, under Article I, § 8, clause 18, to provide for an 142 orderly federal system of criminal justice contemplated by several other provisions of the Constitution. See, e.g., Art. II, § 3; Art. Ill, § 2, cl. 3; Fifth Amendment; Sixth Amendment; Eighth Amendment. That power, however, does not necessarily authorize Congress to require unwilling states to provide facilities to house federal pre-trial detainees, because the Supreme Court has recognized that Congress’ exercise of its consti­ tutional power is limited by the Tenth Amendment. The landmark case discussing the Tenth Amendment’s limitations on Congress’ exercise of its constitutional powers is National League o f Cities v. Usery, 426 U.S. 833 (1976). In National League o f Cities, the Court addressed the question whether Congress, in exercising its power under the Commerce Clause, could extend coverage of the Fair Labor Standards Act to employees of the states and their political subdivi­ sions, thus requiring the states to adhere to minimum wage and maxi­ mum hour requirements previously applicable only to private employ­ ers. While recognizing that Congress has the power under the Com­ merce Clause to impose such restrictions on private employers, the Court held that the Tenth Amendment limits the exercise of otherwise plenary powers of Congress under the Commerce Clause when the exercise of those powers would impermissibly intrude upon traditional state governmental functions: It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional au­ thority directed, not to private citizens, but to the States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state govern­ ment which may not be impaired by Congress, not be­ cause Congress may lack an affirmative grant of legisla­ tive authority to reach the matter, but because the Consti­ tution prohibits it from exercising the authority in that manner. Id. at 845. The Court concluded that, since application of the Fair Labor Stand­ ards Act to employees of states and their political subdivisions would “significantly alter or displace the States’ abilities to structure employee-employer relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation,” id. at 851—areas in which the states have traditionally provided services to their citizens—Congress lacked authority to extend the coverage of the Act to such employees. In a concurring opinion, Justice Blackmun, who joined the Court’s opinion and whose vote was necessary to form the Court majority, appeared to temper the Court’s opinion by reading 143 it to permit federal intrusion on state sovereignty “where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential.” Id. at 856. Four Justices dissented from the Court’s decision. In our view, regardless of whether the language of the Court’s opinion is taken literally or whether the “balancing approach” as articu­ lated by Justice Blackmun is applied, the proposed legislation for man­ datory incarceration of federal pre-trial detainees in local detention facilities would present serious problems under the Tenth Amendment. The opinion focuses on interference with local government policies and traditional state governmental functions and the displacement of local policy decisions. It is clear that the administration of a jail is a tradi­ tional state governmental function. Wentworth v. Solem, 548 F.2d 773 (8th Cir. 1977). Cf. Johnson v. Avery, 393 U.S. 483, 486 (1969) (“There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene.”). Meachum v. Fano, A ll U.S. 215, 229 (1976) (“The federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the states.”). In reaching our conclusion, we recognize that it could be argued that N ational League o f Cities is not applicable to the proposal in question here because the proposed legislation, assuming that it would not also direct the states in the administration of their pre-trial detention facili­ ties, would not directly usurp the decisionmaking functions of the states in the administration of their prison facilities. We are not convinced, however, that legislation must directly supplant state decisionmaking to run afoul of the principles of National League o f Cities. It is clear from the opinion that the Court was concerned primarily with the effect of legislation on “the traditional ways in which the local governments have arranged their affairs.” 426 U.S. at 849. If, as noted in your request, this legislation is necessary because state and local governments are refusing to continue contracting to house federal pre-trial detainees because of overcrowding, a requirement that they provide facilities, regardless of the overcrowding of state and local facilities, may force the states, even with some statutory fee provided, to reallocate their facilities or at worst either to detain fewer persons or to construct more detention facilities.1 The proposed legislation might then be regarded as interfering substantially, though arguably less directly than the legisla­ tion invalidated in National League o f Cities, with the states’ administra­ tion of their prison facilities. 1 T he states, with already crowded facilities, would be placed in a particularly difficult position by the proposed legislation because, unless they acted to relieve any overcrowding caused by housing federal pre-trial detainees, they could be found by a federal court to have denied the detainees due process and ordered to eliminate the overcrowding. See Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980). See also Bel/ v. Wolfish, 441 U.S. 520 (1979). 144 Moreover, under Justice Blackmun’s balancing test, the intrusion may be less justifiable than the intrusion held to be impermissible in National League o f Cities. The federal interest served by the proposed legislation appears to be primarily that of saving the cost to the federal govern­ ment of constructing and administering pre-trial detention facilities for its detainees. In cities where there are relatively few federal detainees, it would obviously be more efficient to use existing state facilities than to construct new federal facilities. That interest, however, does not seem to be “demonstrably greater” than the state interest in avoiding further overcrowding of its facilities so as to justfy the intrusion. There is also a line of cases decided prior to National League o f Cities which suggests that this proposal could be considered as far more intrusive than imposing wage and hour restrictions on state govern­ ments because it imposes an affirmative obligation on the states and their subdivisions to perform a federal function. In Prigg v. Pennsylva­ nia, 41 U.S. (16 Pet.) 539, 615-16 (1842), and more clearly in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107 (1860), the Supreme Court held that, while Congress may delegate the performance of federal functions to state officers, the principles of federalism deprive Congress of the power to require state officers to perform such functions: Indeed such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. A nd we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. 65 U.S at 107-108 (emphasis added). While the Court has implicitly recognized exceptions to this principle when a specific federal power in the Constitution was clearly intended to intrude upon state sovereignty, Fitzpatrick v. Bitzer, A ll U.S. 445, 456 (1976) (Fourteenth Amendment); City o f Rome v. United States, 446 U.S. 156, 178-80 (1980) (Fifteenth Amendment), the general principle has not been expressly disavowed 145 by the Court 2 and continues to be regarded by commentators 3 and lower courts as still viable. In a series of court of appeals decisions criticizing regulations pro­ mulgated by the Environmental Protection Agency (EPA) which would have required states to enact statutes and to administer and enforce EPA programs, three circuit courts criticized those regulations as intruding upon state sovereignty in violation of the Tenth Amend­ ment. In District o f Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975), the court emphasized that the EPA could not, consistent with the Tenth Amendment, “commandeer the regulatory powers of the states, along with their personnel and resources, for use in administering and enforcing a federal regulatory program against the owners of motor vehicles.” Id. at 992. See also Brown v. EPA, 521 F.2d 827, 841 (9th Cir. 1975) citing Dennison and Prigg; M aryland v. EPA, 530 F.2d 215 (4th Cir. 1975). The Supreme Court granted certiorari to review these cases but did not render an opinion on the merits because the Government in its brief conceded the need to modify its regulations. EPA v. Brown, 431 U.S. 99 (1977).4 Finally, there is some historical evidence, which is far from conclu­ sive, that the first and subsequent Congresses may have believed that they were not empowered by the Constitution to require unwilling 2 Recently, the Supreme Court, in discussing the legislative history of 42 U.S.C. § 1983 in MonelJ v. New York City Dept, o f Social Services, 436 U.S. 658, 676 (1978), suggested in dictum that a line of cases which included Dennison and Prigg had not survived as precedent. It is not clear what, if any, w eight should be given to that dictum , however, because the Court cited E x parte Virginia, 100 U.S. (10 O tto) 339, 347-48 (1879) as support—a case which held Dennison inapplicable because the Fourteenth Amendment expressly gave Congress the authonty to interfere with and compel action by state officers in matters covered by the Amendment. 3 See Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev 489, 515-17 (1954) (“T aney’s statement [in Dennison] can stand today, if w e except from it certain pnm ary duties of state judges and occasional remedial duties of other state officers. Both exceptions, it will be observed, involve enforcem ent through the orderly and ameliorating forms o f the judicial process. In any event, experience with the exceptions does little to bring into question the principle of the rule.") 4 Recently, a district court in Mississippi declared unconstitutional provisions in the Public Utility Regulations Policies A ct of 1978 (PU RPA ), Pub. L. No. 95-617, 92 Stat. 3117, which required state regulatory authorities to implement, when appropriate, certain federal standards against utilities. Federal Energy Regulatory Commission v Mississippi, No. J. 79-212(c) (S.D. Miss. February 27, 1981). F E R C and the D epartm ent of Energy filed a joint notice of appeal to the Supreme Court on March 13, 1981. As pointed out in the Jurisdictional Statement filed by the Solicitor General in this case and earlier by an opinion o f this Office (Memorandum from Deputy Assistant Attorney General Mary C. Law ton to Assistant Attorney General John H. Shenefleld dated November 9, 1978), Titles I and III o f PU R PA permit the states to choose whether to implement the federal standards and, therefore, do not impermissibly intrude on the states’ sovereignty. Title II o f PURPA is closer to the proposed legislation because it requires state regulatory authorities to implement rules promulgated by FER C, albeit allow ing such authorities considerable discretion in deciding how to implement the rules. The Solicitor General argues in his Jurisdictional Statement that, because discretion is permitted in the implementation o f the rules, any intrusion on the states’ sovereignty is minimal and, in any event, justified by the paramount federal interest in dealing with the energy crisis. Appellant’s Jurisdictional Statement at 21-23, F E R C v. Mississippi, No. 80-1749 (October Term, 1980). Although PURPA is different in several respects from the legislation proposed here, Supreme Court review of PURPA may shed some light on the question o f what if any obligations to enforce federal law may be imposed on the states. [N o t e : In FERC v. Mississippi, 456 U.S. 742 (1982), the Supreme Court held that Titles I and III o f PU R PA w ere not unconstitutional on T enth Amendment grounds, finding that they “simply condition continued state involvement in a pre-emptible area on the consideration of federal propos­ als.” 456 U.S. at 765. Ed.] 146 states to house federal detainees.5 When the federal government was founded, it presumably would have been prohibitively expensive for the new government to provide its own prison facilities to house federal prisoners scattered throughout the original 13 states. Congress dealt with this problem not by requiring the states to make their facilities available to the federal government, but by adopting a joint resolution on September 23, 1789, recommending “to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States” and authorizing payment to the states for the use of their jails. 1 Stat. 96-97 (1789). The joint resolution passed both Houses of Congress without any recorded debate.6 Thus, we do not know whether the decision by the first Congress to recom­ mend to the states that they permit the federal government to use their prison facilities, rather than requiring them to provide the facilities, was motivated by a belief that Congress lacked the power to require the latter or that the former was merely politically more acceptable. Congress’ action in 1821, however, when some states apparently refused to permit the federal government to continue to use their prison facilities, lends some support to the inference that the early Congresses believed that they lacked the power to require the states to provide facilities. From a joint resolution adopted by Congress in 1821,7 it appears that some states, having followed Congress’ recommendation in 1789 to permit the use of their prison facilities by the federal govern­ ment, subsequently decided to withdraw their permission. Congress responded to that withdrawal, not by requiring the states to make their facilities available to the federal government, but by authorizing the marshal, in those states that had withdrawn their permission, to “hire a convenient place to serve as a temporary jail, and to make the neces­ sary provision for the safe keeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose.” 3 Stat. 646-47 (1821). See also 4 Stat. 118 (1825) and 4 Stat. I l l (1835) (authorizing the courts to order execution 5 If such a belief were expressed clearly, which il is not, it would be considered a contemporaneous construction of the Constitution, followed since the founding of the government, and entitled to great weight in determining the scope o f Congress’ power. Cf. E x parte Quirtn, 317 U S. 1, 41-42 (1942), Williams v United States, 289 U S. 553, 573-74 (1933) 6 1 Debates in Congress, 86, 938 (Gales & Seaton eds 1789). 7 Resolved by the Senate and House o f Representatives o f the United States o f America, in Congress assembled. That where any state or states, having complied with the recommendation of Congress, in the resolution of the twenty-third day of September, one thousand seven hundred and eighty-nine, shall have withdrawn, or shall hereafter withdraw, either in whole or in part, the use of their jails for prisoners committed under the authority of the United States, the marshal in such state or states, under the direction of the judge of the district, shall be, and hereby is, authorized and required to hire a convenient place to serve as a temporary jail, and to make the necessary provision for the safe keeping of prisoners committed under the authonty of the United States, until permanent provision shall be made by law for that purpose; and the said marshal shall be allowed his reasonable expenses, incurred for the above purposes, to be paid out of the Treasury of the United States. Act of March 3, 1821, 3 Stat. 646-47 (1821). 147 of prison sentences in state prisons where “the use of which shall be allowed and authorized by the legislature of the state for such pur­ poses.”); 13 Stat. 74-75 (1864) (authorizing the Secretary of the Interior to contract with state authorities for the use of prison facilities for persons convicted of federal crimes in the territories); 13 Stat. 500 (1865) (authorizing courts to order execution of prison sentences longer than 1 year in state prisons where use of the prison is authorized by the state legislature). Again, there is nothing in the legislative history to indicate that Congress believed that it lacked power to require the recalcitrant states to make their facilities available to the federal gov­ ernment; Congress may have been merely reluctant to exercise this power. Thus, we cannot conclude on the basis of this history that the Tenth Amendment precludes such a requirement, but we believe it provides some insight into the sensitive manner with which this issue has been treated by Congress since the founding of our government. Therefore, while we cannot be certain that the proposed legislation would be unconstitutional, we believe that it would raise a serious question under the Tenth Amendment whether Congress, on enacting such legislation, had impermissibly intruded upon the states’ sover­ eignty. We suggest that you consider, as an alternative, a statutory scheme which would induce, rather than coerce, the states to cooperate in making their detention facilities available to the federal government. Congress, by invoking its power under the Spending Clause, could condition the availability of some grant program to individual states on the cooperation of the states in providing detention facilities for federal pre-trial detainees. Such legislation should, however, be carefully for­ mulated because the Court has recently reaffirmed its warning that “[t]here are limits on the power of Congress to impose conditions on the States pursuant to its Spending Power.” Pennhurst State School and H ospital v. Halderman, 451 U.S. 1, 17 n. 13 (1981).8 However, if the legislation is not coercive and would contemplate that the states would receive benefits reflecting the incremental costs (including costs attrib­ utable to administrative and capital costs) of housing the federal detain­ ees in state facilities, the burden and coercive effect on the states should not be considered excessive and such legislation would probably be upheld. I would imagine that there are already federal subsidies to state prison facilities, and it might be feasible to condition receipt of a portion of such subsidies on the willingness to provide facilities (for compensation) for federal pre-trial detainees. If you would like to 8 F or example, statutory inducements cannot be used as “ weapons of coercion, destroying or impairing the autonomy of the states.” Steward Machine Co. v. Davis, 301 U.S. 548, 586 (1937) 148 consider such an approach, we will be happy to assist further with the formulation of such legislation. T h e o d o r e B. O lson Assistant Attorney General Office o f Legal Counsel 149

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18 U.S.C. § 207 and the Government of Guam 18 U.S.C. § 207(a)(1) prohibits a form er Department of the Navy employee from representing the Governm ent o f Guam before the Federal Maritime Commission in a litigation in which he partici­ pated personally and substantially while employed by the Navy. September 12, 1996 M e m o r a n d u m O p in io n f o r t h e D ir e c t o r O f f ic e o f G o v e r n m e n t E t h ic s Y o u have asked for our opinion whether 18 U.S.C. § 207(a)(1) bars a former employee from representing the Government of Guam in a litigation in which he participated personally and substantially while employed by the Department of the Navy. See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics (June 25, 1996) (“ Potts Letter” )- We conclude that the statute forbids the rep­ resentation. 1 While an attorney with the Navy’s Military Sealift Command (“ MSC” ), the former employee represented the MSC in a case before the Federal Maritime Com­ mission (“ FMC” ), Government o f Guam v. Sea-Land Service, Inc., Docket No. 89-26. He has now joined the law firm representing the Government of Guam in the case. He wishes to appear on behalf of Guam before the FMC and in any subsequent judicial review proceedings. Section 207(a)(1) provides: Any person who is an officer or employee . . . of the executive branch of the United States . . ., or of the District of Columbia, and who, after the termination of his or her service or employment with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication to or ap­ pearance before any officer or employee of any department, agency, court, or court-martial of the United States or the District of Colum­ bia, on behalf of any other person (except the United States or the District of Columbia) in connection with a particular matter— (A) in which the United States . . . is a party or has a direct and substantial interest, 1 Section 207(a)(1) covers a former em ployee’s “ communication to or appearance before1' agencies and courts, made “ w ith the intent to influence." Here, w e use forms o f the word “ represent” as a shorthand, without meaning to specify the exact scope o f the statute. T here is no dispute in the present case that the former employee would be engaged in “ co m m u n icatio n ^]” and ” appearance[s]M within the meaning o f the law. 326 18 U.S.C. § 207 and the Government o f Guam (B) in which the person participated personally and substantially as such officer or employee, and (C) which involved a specific party or specific parties at the time of such participation, shall be punished as provided in section 216 of this title. Here, the former employee, while with the MSC, “ participated personally and substantially” in the “ particular matter” in question, which involves “ specific parties.” See Potts Letter at 2. The former employee, however, makes two basic arguments that the statute does not apply. First, he argues that Guam is not a “ person” under §207 and that his representation is, therefore, not “ on behalf of any other person.” See Memorandum for the Director, U.S. Office of Govern­ ment Ethics, from Former Employee, Re: Request fo r Advisory Opinion Con­ cerning the Application o f 18 U.S.C. § 207(a)(1), at 3 (Feb. 26, 1996). Second, he argues that his representation is not on behalf of a person “ except the United States,” because Guam is an instrumentality of the United States. Id. at 3-4. He maintains, in addition, that his representation would square with the policy of the statute because Guam and the MSC have no adverse interests in the FMC proceedings, and he urges the relevance of the principle that criminal statutes must be strictly construed. Id. at 4-5. These arguments are unpersuasive. First, although Guam is not a “ person” under some other statutes, see, e.g., Ngiraingas v. Sanchez, 495 U.S. 182 (1990) (Guam not a “ person” under 42 U.S.C. § 1983), it is a “ person” under §207. That provision treats even the United States and the District of Columbia as persons; it applies to representation of “ any other person (except the United States or the District of Columbia).” It also treats state and local governments as “ persons” : a one-year “ cooling o f f ’ period for representation by former high-level officials of “ persons other than the United States,” 18 U.S.C. § 207(c), (d) & (e), is expressly made inapplicable to represen­ tation undertaken by employees of state and local governments, on behalf of those governments. See id. §207(j)(2)(A). Representation of state or local governments by former federal employees, therefore, could violate § 207(a)(1), the provision at issue here. By providing exemptions for work on behalf of the United States, the District of Columbia, and (in some circumstances) state and local governments, and by restricting certain other work on behalf of state and local governments, the statute bespeaks an intent to cover units of government as “ persons.” Cf. United States v. Smith, 499 U.S. 160, 167 (1991) (quoting Andrus v. G lover Constr. Co., 446 U.S. 608, 616-17 (1980)) (“ ‘Where Congress explicitly enumer­ ates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.’ ” ). Guam is therefore a “ person” under §207. 327 Opinions o f the Office o f Legal Counsel in Volume 20 Second, although Guam is an “ instrumentality of the federal government” for some purposes, see Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286, 1289 (9th Cir. 1985), cert, denied, 475 U.S. 1081 (1986) (Commerce Clause and antitrust laws), it is not the “ United States” for purposes of §207. It would be anomalous for Guam to be an instrumentality of the United States under a statute that even treats the United States and the District of Columbia as separate entities. Section 207(a)(1) applies to “ any communication to or appearance before any officer or employee . . . of the United States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia),” and clarifies that former officials of the United States may communicate to or appear before officers and employees of the District of Columbia, and vice versa. 18 U.S.C. § 207(a)(3). Thus, the District of Columbia is not covered by the term “ the United States” in §207, and there is no apparent reason why an unincor­ porated territory with its own government, see, e.g., 48 U.S.C. §§1421-1423, should receive different treatment. Furthermore, § 207 is aimed, among other things, at preventing former employ­ ees of the United States from “ switching sides” in particular matters involving specific parties, such as litigation. See, e.g., 5 C.F.R. § 2637.101(c)(1) (1996).2 Guam and the United States may now appear separately in litigation and take opposite sides. As Judge (now Justice) Kennedy explained, “ the executive branch of the Government of Guam [before 1971] might have been deemed under the control of the United States” as to litigation, because the Governor was appointed by the President with the advice and consent of the Senate, but [o]nce the Governorship of Guam was made an elected office, the United States relinquished its control over the executive of the Gov­ ernment of Guam. The executive branch is responsible now to the people of Guam. That the Government of Guam is now capable of acting independently of the United States in deciding whether to sue the United States is evidenced by the institution of the present action. G overnm ent o f Guam v. United States, 744 F.2d 699, 701 (9th Cir. 1984). Given this possibility of conflict between the United States and Guam and given the statutory structure, we believe that Guam does not fall within the term “ the United States” as used in §207. To be sure, there may be some instances where, even within the executive branch of the federal government, an employee who leaves one agency and joins 2 H ie statute is also designed to restrict trading on past friendships and associations and prevent the unfair use o f inside information. 5 C.F.R. §2637.101(c)(2), Roswell B. Perkins, The New Federal Conflict-of-interest Law , 76 Harv. L. Rev. 1113, 1121 (1963). (The regulation cited, 5 C.F.R. §2637.I01(c), applies only to persons who left the governm ent before statutory amendments became effective on January 1, 1991, but the earlier regulations “ remain []persuasive” to the extent the statute has not changed. Office o f Government Ethics, Summary o f PostEm ploym ent R estrictions o f 18 U.S.C. §207, at 1 (Nov. 4, 1992).) 328 18 U.S.C. § 207 and the Government o f Guam another might “ switch sides” in some sense, and yet §207 would not apply: “ A prime example of this is the activities of the Federal Labor Relations Author­ ity. It is basically an intra-govemmental regulatory body whose employees some­ times come from other agencies having worked on pending matters before the FLRA or who may wish to leave [the] FLRA for an agency which has a matter pending at the FLRA in which they are officially involved.” OGE Informal Opin­ ion 86x1 (1986). We do not believe, however, that these instances are analogous to the present case. The employee who transfers from one executive agency to another remains under the control of the executive branch and subject to its ethics regulations. As the Office of Government Ethics has noted, “ [t]he FLRA . . . has been very sensitive to these situations and has used its standards of conduct to provide guidance for its employees.” Id. Congress has left these conflicts to be policed by regulations issued by agencies plainly within the United States gov­ ernment; it hardly follows that §207 should be construed as inapplicable to an entity “ capable of acting independently of the United States.” Government o f Guam, 744 F.2d at 701. We may assume, as the former employee argues, that the United States and Guam do not have adverse interests in the action before the FMC and that there is no “ reasonably probable scenario” for future adversity. See Memorandum from MSC Designated Agency Ethics Official, Re: Government o f the Territory o f Guam et al. v. Sea-Land and APL, FMC D ocket No. 8 9 -2 6 (Feb. 23, 1996). But §207 is a prophylactic statute that is “ intended to prevent even the appearance of wrongdoing and that may apply to conduct that has caused no actual injury to the United States.” Crandon v. United States, 494 U.S. 152, 164 (1990) (de­ scribing another conflict of interest law, 18 U.S.C. §209). It creates a prohibition applicable to specified types of circumstances, as listed in the statute, where con­ flicts may arise. On its face, the language of § 207 draws no distinction between matters in which the interests of the person represented by the former employee coincide with the interests of the United States and those in which the interests diverge or are adverse. The statute reaches ‘‘any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding.” 18 U.S.C. §207(i)(3) (empha­ sis added). Thus, “ [a] former employee does not act on behalf of the United States . . . merely because the United States may share the same objective as the person whom the former employee is representing.” Office of Government Ethics, Summary o f Post-Employment Restrictions o f 18 U.S.C. § 2 0 7 , at 4 (Nov. 4, 1992). Although (under an earlier version of § 207) we found that a former employee would not be an agent of another person with regard to a contract unless there was “ an ingredient of at least inchoate adversariness,” Former Officers and Em­ ployees— Conflict o f Interest (18 U.S.C. § 2 0 7 ) — Contract— Disqualification Connected with Form er D uties or Official Responsibilities, 2 Op. O.L.C. 313, 329 Opinions o f the Office o f Legal Counsel in Volume 20 316 (1978), the justification for this conclusion was that “ [a]side from a contract, the other listed matters [in the definition of ‘particular matter’] appear to be preg­ nant with at least some adversariness (in the sense of urging a point of view) in all their aspects,” id. See a lso OGE Informal Opinion 80x4 (1980); 5 C.F.R. §2637.201 (b)(5) (1996). With regard to litigation in which the United States is a party or has a direct and substantial interest and in which a former employee represents a participant in the case, it is irrelevant whether the former employee will be advancing a position aligned with the government’s: An attorney participated in preparing the Government’s antitrust ac­ tion against Z Company. After leaving the Government, she may not represent Z Company in a private antitrust action brought against it by X Company on the same facts involved in the Govern­ ment action. N or may she represent X Company in that matter. 5 C.F.R. §2637.201 (c)(5), Ex. 1 (emphasis added). That the interests of the United States and Guam are aligned in the present case does not alter our conclusion about the applicability of § 207.3 RICHARD L. SHIFFRIN D eputy A ssistant Attorney General Office o f Legal Counsel 3 The form er em ployee also relies on the rule o f lenity, under which “ ‘when choice has to be made between tw o readings o f what conduct Congress has m ade a crim e, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and d efin ite/ ” United States v. Bass, 404 U.S. 336, 347 (1971) (quoting United States v. Universal CJ.T. Credit Corp., 344 U.S. 218, 221-22 (1952)). There m ay be som e doubt how that rule applies to prospective ethics advice, where the “ need for fair w arning” underlying the rule is met by the advice itself. See United States v. R.L.C., 503 U.S. 291, 306 n.6 (1992) (plurality opinion); Liparota v. United States, 471 U.S. 419, 427 (1985); but see R.L.C., 503 U.S. at 309 (Scalia, J., concurring in part and concurring in the judgment) (rule o f lenity also ‘‘assur[es] that the society, through its representatives, has genuinely called for the punishment to b e meted o u t” ). In any event, we believe that §207(a) is unambiguous in its application here and so do not resort to the rule o f lenity for guidance. See Lewis v. United States, 445 U.S. 55, 65 (1980) (the “ touchstone” of the rule o f lenity “ is statutory ambiguity” ). 330

Write a legal research memo on the following topic.

Transmission by a Wireless Carrier of Information Regarding a Cellular Phone User’s Physical Location to Public Safety Organizations Neither 47 U.S.C. § 1002(a) nor the Fourth Amendment o f the Constitution prohibits a wireless car­ rier’s transmission to local public safety organizations o f information regarding the physical loca­ tion 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 infor­ mation 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 M e m o r a n d u m O p in io n for th e A c t in g A s s is t a n t A t t o r n e y G e n e r a l C r im in a l D iv is io n Y ou have asked for our opinion as to whether 47 U.S.C. § 1002(a) 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. In addition, you have inquired as to the constraints, if any, imposed by the Fourth Amendment on such a transmission.1 As set forth in detail below, we conclude that § 1002(a), by its terms, does not prohibit such transmission of location information. Although you have not inquired as to the applicability of 18 U.S.C. § 2703(c), we conclude that, while the provision would apparently apply to the carrier’s transmission of such location information to pub­ lic 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. Finally, the Fourth Amendment does not prohibit such transmission both because of the caller’s im­ plied consent to the disclosure and because a caller who dials 911 has neither an actual nor a reasonable expectation of privacy with regard to his whereabouts at the time of the call. 1 Memorandum for W alter E. Dellinger, Assistant Attorney General, Office o f Legal Counsel, from John C. Keeney, Acting Assistant Attorney G eneral, Criminal Division, Re: Request far a Legal Opinion from the Federal Communica­ tions Commission as to the Applicability o f 47 U.S.C. § 1002(a) to the Transmission to Local Public Safety Agencies o f the Physical Location o f a Cellular Telephone Caller Who Dials the 911 Emergency Line (May 13, 1996). 315 Opinions o f the Office o f Legal Counsel in Volume 20 BACKGROUND A. F acts In its recently issued rule regarding Compatibility of Wireless Services With Enhanced 911 ( “ E-911” ), the Federal Communications Commission (the “ FCC” ) established a timetable for the development and deployment of new technologies through which wireless carriers (cellular telephone companies) will automatically provide a designated public safety answering point (“ PSAP” ) 2 with information regarding the physical location of a caller who dials 911 on a wireless cellular telephone. Commercial Mobile Radio Services, 47 C.F.R. §§20.3, 20.18 (1996).3 This information will significantly enhance the effectiveness of wireless 911 serv­ ices by helping emergency service personnel locate the caller and more rapidly and accurately determine where the emergency has occurred. The implementation and deployment of enhanced 911 features and functions will be accomplished in two phases. In phase one, covered carriers must relay to the PSAP the 911 caller’s telephone number and the location of the cell site or base station through which the call originates. See id. §20.18(d). This informa­ tion will identify the caller’s location only in quite general terms,4 but will enable emergency service providers to call back if a 911 call is disconnected. See id. We understand that the information provided in phase one is currently available to wireless carriers, as it is regularly captured by them as part of their transmission of calls from cellular phones,5 but some carriers must develop the ability to pass it on to a third party. A more precise identification of the caller’s location will occur in phase two, when the carrier must provide the designated PSAP with the physical location of the mobile unit making the call by longitude and latitude within a radius of 125 meters in 67% of all cases. See id. § 20.18(e). According to FCC representa­ tives, the more precise location determination required in phase two will occur 2 A public safety answering point is a facility designated to receive 911 calls and route them to emergency service personnel. See A l C.F.R. §20.3. 3 An E -9 11 system automatically identifies on a screen at the PSAP the telephone num ber and geographical location from which the call was made. This system permits a more efficient response to calls received, mcluding silent calls, and deters false alarms, because such calls are capable o f being traced. In many jurisdictions, E-911 systems are already operational for landline phones, identifying the telephone num ber and the address associated with that telephone number. The address o f the subscriber to the cellular telephone will often be insufficient to identify the c aller’s physical location at the time of a call, however, because cellular telephones are mobile and calls are frequently made from som eplace other than the c aller’s address. The need for this critical information regarding the location o f the caller was the impetus for the new F C C rule. 4The physical size o f a cell depends upon the density o f use: it could encompass only a few blocks in a populated city, or m iles in a rural area. 5 W hen a cellular caller makes a cal], the carrier captures his signal (his electronic serial number) and the data carried on that signal, which is generally a mobile identification number ( “ M IN” ). A MIN is a 34-bit binary number that a cellular handset transm its as part o f the process o f identifying itself to wireless networks. Each handset has one M IN, which is derived from the ten-digit North A merican Numbering Plan telephone number that is generally program m ed into the handset by a provider when it initiates service for a new subscriber. See id. §20.18. The carrier’s records include transactional information, such as the caller’s address, associated with the MIN. 316 Transmission by a Wireless Carrier o f Information Regarding a Cellular Phone User's Physical Location to Public Safety Organizations through the development of new technologies enabling the carrier to combine and analyze information regarding the strength, angle and timing of the caller’s signal measured at two or more cell sites. A caller’s signal, and its strength, are already often picked up by more than one cell site. In addition, many cell sites have sectorized antennas, and, depending upon the angle of the signal’s arrival, a par­ ticular antenna will pick up the signal, thus informing the carrier what sector of the cell the caller is located in. Finally, each site records the arrival time of a signal. By developing new computer programs, switching technology, protocols and network architecture, the carrier will be able to combine and analyze all of this information— the strength of the signal at each of the cell sites picking up the signal, the sector of a cell from which a signal emanates, and the time that it takes for the signal to arrive at one cell site compared to other sites— to identify more precisely the caller’s location. B. Relevant Statutory Provisions The Communications Assistance for Law Enforcement Act of 1994 (“ CALEA” ), among other things, requires telecommunications carriers to ensure that their equipment is capable of permitting the government (pursuant to a court order or other lawful authorization) to access certain “ call-identifying informa­ tion” 6 that is reasonably available to the carrier. 47 U.S.C. § 1002(a)(2). CALEA includes limitations, however, and specifically prohibits telecommunications car­ riers from providing the government with “ information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title 18) . . . that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone num­ ber).” Id. § 1002(a)(2)(B).7 Section 3127 of title 18 (part of the Electronic Com­ munications Privacy Act of 1986 (“ ECPA” )) in turn prohibits the installation or use of pen registers and trap and trace devices absent a court order, with the exception of particular uses by providers of electronic or wire communication services.8 6 “ The term ‘call-identifying information’ means dialing or signaling information that identifies the origin, direc­ tion, destination, or termination o f each communication generated or received by a subscriber by means o f any equipment, facility, or service o f a telecommunications carrier.” 47 U.S.C. § 1001(2). 7 J8 U.S.C. §3127 defines “ pen register” and ‘‘trap and trace device” as follows: (3) the term ‘pen register’ means a device which records or decodes electronic or other impulses which identify the numbers dialed o r otherwise transmitted on the telephone line to which such device is attached, but such term does not include any device used by a provider or customer o f a wire or electronic commu­ nication service for billing, o r recording as an incident to billing, for communications services provided by such provider o r any device used by a provider or customer o f a wire communication service for cost accounting or other like purposes in the ordinary course of its business; (4) the term ‘trap and trace device’ means a device which captures the incoming electronic or other impulses which identify the originating number o f an instrument or device from which a wire or electronic communication was transmitted. 8 18 U.S.C. §3121 provides in pertinent part’ Continued 317 Opinions o f the Office o f Legal Counsel in Volume 20 Another provision of ECPA, 18 U.S.C. §2703, “ Requirements for governmental access,” sets forth the terms under which carriers may provide governmental enti­ ties with information relating to electronic communications. In particular, § 2703(c) provides that a carrier shall only disclose a record or other information pertaining to one of its customers (excluding the contents of communications cov­ ered elsewhere in the section) to a governmental entity when the governmental entity obtains a warrant, a court order or the consent of the customer.9 ANALYSIS A. Section 1002(a) Does Not Prohibit Wireless Carriers From Transmitting Information Regarding the Physical Location o f Cellular Telephone Callers to Public Safety Agencies By its terms, 47 U.S.C. § 1002(a)(2) does not prohibit a wireless carrier’s trans­ mission of physical location information as required by the new FCC rule. As set forth above, § 1002(a)(2) only prohibits carriers from providing physical loca­ tion information “ acquired solely pursuant to the authority [under 18 U.S.C. §3127] for pen registers and trap and trace devices.” The physical location of a cellular caller would not be obtained pursuant to legal authority requested and obtained by law enforcement officers as part of a government-initiated investiga­ tion, but instead pursuant to the recently issued FCC rule in response to an individ­ ual’s request for help. Indeed, the cellular caller’s physical location would not be determined by use of a pen register or trap and trace device at a ll,10 but rather (a) In general. — Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act o f 1978 (50 U.S.C. 1801 e t seq.). (b) Exception.— The prohibition of subsection (a) does not apply with respect to the use o f a pen register or a trap and trace device by a provider of electronic or wire communication service— (1) relating to the operation, maintenance, and testing o f a wire or electronic communication service or to the protection o f the rights or property o f such provider, or to the protection o f users o f that service from abuse o f service or unlawful use o f service; or (2) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user o f that service, from fraudulent, unlawful o r abusive use o f service; or (3) where the consent o f the user o f that service has been obtained. 9 A provider o f electronic communication service . . . shall disclose a record or other information pertaining to a subscriber to o r custom er o f such service (not including the contents o f communications covered by subsection (a) or (b) o f this section) to a governmental entity only when the governmental entity— (i) obtains a w arrant issued under the Federal Rules o f Criminal Procedure or equivalent State warrant; (ii) obtains a court order for such disclosure under subsection (d) of this section; or (iii) has the consent o f the subscriber o r custom er to such disclosure. 18 U .S.C. § 2 7 03(c)(l)(B ). Section 2703(c)(1)(C) provides that a carrier shall disclose certain transactional informa­ tion, including the name, address and telephone num ber o r other subscriber number, o f a custom er when the govern­ m ental entity utilizes an authorized administrative subpoena. 10 A lthough pen registers and trap and trace devices would be used to obtain the caller's telephone num ber and to relay the call to the PSAP, they would not provide any information on the actual physical location o f the cellular caller. 318 Transmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser's Physical Location to Public Safety Organizations by advanced technologies that aggregate and analyze the strength and angle of the caller’s signal measured at various cell sites. At the very least, it certainly cannot be said that the caller’s physical location would be determined “ solely” through use of a pen register or trap and trace device. 47 U.S.C. § 1002(a). Thus § 1002 does not prohibit a telecommunications carrier from transmitting to a public safety organization the physical location information pertaining to a cellular caller required by the FCC rule.11 B. 18 U.S.C. §2703 Permits Wireless Carriers to Transmit to Public Safety Authorities the Physical Location of Cellular Callers Dialing 911 Because Such Callers Have Impliedly Consented to Such Disclosure As set forth above, 18 U.S.C. §2703 requires wireless carriers to obtain a war­ rant, a court order or the consent of the customer before disclosing to govern­ mental authorities information relating to such customer. Although the disclosure of information regarding the physical location of a customer would likely fall within this provision, it is our view that, by dialing 911, the caller impliedly con­ sents to the disclosure of information regarding his location at the time of the call. 12 The whole purpose of a 911 call is to seek the aid of appropriate government officials in responding to an emergency at a particular place. Typically, that emer­ gency is in the immediate vicinity of the caller— indeed, it often involves the caller himself and thus his exact location— and the whole purpose of the call 11 The legislative history o f § 1002(a) supports our conclusion. As explained in the House Report (there was no Senate Report submitted with CALEA), Congress was acting to ensure that “ the authority for pen registers and trap and trace devices cannot be used to obtain tracking or location information, other than that which can be deter­ mined from the phone num ber." H.R. Rep. No. 103-827, at 17 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3497; see also id. at 22, reprinted in 1994 U.S.C.C.A.N. at 3502 ( “ Call identifying information obtained pursuant to pen register and trap and trace orders may not include information disclosing the physical location o f the subscriber sending or receiving the message, except to the extent that location is indicated by the phone n um ber.") (emphasis added). “ Currently, in some cellular systems, transactional data that could be obtained by a pen register may include location information." Id. at 17, reprinted in 1994 U.S.C.C.A.N. at 3497 (emphasis added). 12Although there appear to be no cases interpreting §2 7 0 3 ’s consent provision, and the legislative history of the section is silent on the matter, some guidance can be found in analyses o f the consent provision in Title DI o f the Omnibus Crime Control and Safe Streets Act o f 1968, 18 U.S.C. § 231 l(2)(c>. Section 2511(2)(c) provides in part that “ [i]t shall not be unlawful under this chapter for a person acting under color o f law to intercept a wire, oral, or electronic communication, where . . . one o f the parties to the communication has given prior consent to such interception.’- According to the legislative history o f §251 l(2)(c), “ (c)onsent may be expressed or implied.” S. Rep. No. 90-1097, at 94 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2182 ( “ Surveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to .” ). “ In the Title in milieu as in other settings, consent inheres where a person's behavior manifests acquiescence or a comparable vol­ untary diminution of his or her otherwise protected rights.” Criggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir. 1990) (citations omitted). “ fl]raplied consent— o r the absence o f it — may be deduced from ‘the circumstances prevailing’ in a given situation. . . . The circumstances relevant to an implication of consent will vary from case to case, but the compendium will ordinarily include language o r acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private.” Id. at 117 (citation omitted). See also United States v. Amen , 831 F.2d 373, 378-79 (2d Cir. 1987) (no violation o f Title DI where taping o f prison inmates* telephone calls was impliedly consented to by inmates who used phones when on notice o f the monitoring procedures at prison; “ [h]ere we imply consent in fact from surrounding circumstances indicating that the appellants knowingly agreed to the surveillance” ) (citations omitted), cert, denied, 485 U.S. 1021 (1988). 319 Opinions o f the Office o f Legal Counsel in Volume 20 is to inform officials of that location in order for the caller to obtain, and the emergency service officials to provide, help. The caller is the source of the loca­ tion information needed by the government to respond, and his call evidences not merely an expectation, but in fact a purpose, of conveying that information to the authorities. If the caller himself does not tell the authorities where he is located (which he generally does), it is presumably due to the exigent cir­ cumstances resulting from the emergency, and not to any desire to withhold such information. Even if the emergency is in a different location, his decision to reach out to government officials to seek their help indicates that he would similarly tell them his location if it would help them respond to the emergency.13 The mere possibility that a caller subjectively does not wish his location to be revealed would not negate the consent presumed from his making the 911 call.14 C. Wireless Carriers May Transmit to Public Safety Authorities Information Regarding the Physical Location o f Cellular Callers Dialing 911 Without Violating the Fourth Amendment 1. There is no “ Search” Within the Meaning o f the Fourth Amendment Because 911 C allers H ave N o Actual o r Reasonable Expectation o f Privacy in Information Regarding Their Location The Fourth Amendment protects individuals from “ unreasonable searches.” U.S. Const, amend. IV. For the Fourth Amendment even to apply to a particular government action, the person invoking its protection must be able to claim “ a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been 13 C alling 911 and triggering the governm ent's emergency response invalidates any claim by a caller that he does not in fact consent to the disclosure of information regarding his location. If he chooses to seek such emergency aid, he implicitly consents both to aiding th e authorities in this limited way and to action taken by the government to verify his call. See Nolan v. United States, 423 F.2d 1031, 1043 (10th Cir. 1969) (telephone company’s monitoring o f calls does not violate 47 U.S.C. §605 because illegal user has impliedly consented to company's attempts to properly bill user), cert, d e n ie d 400 U.S. 848 (1970); Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967) (*‘[w]hen a subscriber o f a telephone system uses the system 's facilities in a manner which reasonably justifies the telephone com pany’s belief that he is violating his subscription rights, then he must be deemed to have consented to the com pany’s m onitoring o f his calls to an extent reasonably necessary for the company’s investigation" and there is no violation o f 47 U.S.C. §605); Commonwealth v. Gullett, 329 A.2d 513, 519 (Pa. 1974) (Party calling police to report homicide, its location and num ber o f bodies has no claim for violation o f Pennsylvania W iretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. §5703, where, “ [fjrom the nature o f the call, the nonconfidential quality o f the information conveyed, the emergency atmosphere the communication engendered, and the particular agency to which the disclosure was directed, it is apparent that the caller did not intend the privacy o f the com m unication to be maintained. Rather, the conclusion is inescapable that a call made under these cir­ cum stances carried with it the permission o f the caller to divulge the communication to authorized police personnel other than the officer who happened to take the message and to use the communication to investigate the reported crim e by any reasonable m eans."). 14See United States v. Tzakis, 736 F.2d 867, 8 71-72 (2d Cir. 1984) (defendant cannot assert post-hoc limits on a listener’s recording o f conversation by alleging that his willingness to allow overhearing did not encompass perm ission to record); United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994) ( ‘‘where a suspect does not withdraw his valid consent to a search for illegal substances before they are discovered, the consent remains valid"); Jones v. Berry, 722 F.2d 443, 449 (9th C ir. 1983) (consent search is valid where consent revoked after search com plete), cert, denied, 466 U.S. 971 (1984). 320 Transmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser's Physical Location to Public Safety Organizations invaded by government action.” Smith v. M aryland, 442 U.S. 735 , 740 (1979) (citations omitted). This inquiry embraces two discrete questions. The first is “ whether the individual, by his conduct, has ‘exhibited an actual (subjective) ex­ pectation of privacy,’ ” — whether the individual “ has shown that ‘he seeks to preserve [something] as private.’ ” Id. at 740 (quoting K atz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring), 351 (1967)). The second question is “ whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “ reasonable,” ’ ” — whether “ the individual’s expec­ tation, viewed objectively, is ‘justifiable’ under the circumstances.” Id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring), 353). In our opinion, a cellular caller dialing the 911 emergency line has not exhibited an “ actual (subjective) expectation of privacy” in information regarding his phys­ ical location, much less a “ reasonable” one. It is hard to imagine any clearer indication of the absence of an expectation of privacy than a cry for help; by reaching out to government officials to seek their help, the caller indicates that he has no expectation of privacy in information that could help the authorities respond to the emergency.15 Even assuming that, in some number of cases, the caller actually expects his physical location to remain private, we believe that expectation is not “ one that society is prepared to recognize as ‘reasonable.’ ” Katz, 389 U.S. at 361. A caller dialing 911 seeking assistance cannot reasonably expect that information regarding his location will remain private when public service organizations need such infor­ mation first and foremost to expeditiously provide the emergency assistance re­ quested by the caller, and secondly to ensure that the call is legitimate and thus worthy of response.16 In addition, the Supreme Court has repeatedly held that a person has no expecta­ tion of privacy in information he voluntarily turns over to third parties.17 In order to complete his call, the cellular caller must convey his signal and its cor­ responding cell site location to the carrier. The caller therefore has no reasonable 13 Although no court has directly addressed this issue, our conclusion is supported by cases holding that a person calling 911 has no expectation o f privacy in the contents o f his call. “ There is no expectation o f privacy when a person makes a 911 call. Instead, there is an expectation that the information provided will be recorded and dis­ closed to the public.” State ex rel. Cincinnati Enquirer v. Hamilton County, Ohio, 662 N.E.2d 334, 337 (O hio 1996) (tape recordings o f 911 calls are public records that are not exempt from disclosure and must be immediately released upon request); see also State v. Cain, 613 A.2d 804, 809 (Conn. 1992) (tape recordings o f 911 calls are public records); -Sra/e v. G ray, 741 S.W.2d 35, 38 (Mo. App. 1987) (same). ieSee United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir.) (prisoner has no reasonable expectation of privacy in outbound calls), cert, denied , 519 U.S. 912 (1996); People v. Suite, 161 Cal. Rptr. 825, 829 (Cal. App. 1980) (person telephoning police and threatening to bomb public building “ cannot reasonably expect that records o f the call will be private; the only reasonable expectation under such circumstances is that police will make use o f every available technology to trace the source o f that call” ). 17 “ [T]he Fourth Amendment does not prohibit the obtaining o f information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976) (bank depositor has no legitimate expectation o f privacy in financial information voluntarily conveyed to banks and exposed to their employees in the ordinary course o f business); see also Smith, 442 U.S. at 744 (telephone caller has no reasonable expectation o f privacy in phone number voluntarily dialed). 321 Opinions o f the Office o f Legal Counsel in Volume 20 expectation of privacy with regard to that information, which is exactly the loca­ tion information that will be disclosed in phase one of the new FCC rule. And it is the strength of this same signal — information voluntarily turned over by the caller to a third party— that would be measured from different antennas and cell sites, and then analyzed in phase two in order more precisely to determine his location. An expectation of privacy simply is not “justified” in these cir­ cumstances. In sum, because a cellular caller dialing 911 has no actual or reasonable expecta­ tion of privacy as to information regarding his physical location, there will be no “ search” within the meaning of the Fourth Amendment, and thus no con­ straints imposed by the Fourth Amendment, when wireless carriers transmit such information to public safety authorities. 2. C ellular C allers Dialing 911 Have Impliedly Consented to the Transmission o f Information Regarding Their Physical Location Even assuming that the provision to public safety agencies of information re­ garding the physical location of a cellular caller dialing 911 would constitute a search within the meaning of the Fourth Amendment, that search would be lawful if the caller consented to it, as consent is “ one of the specifically established exceptions to the requirements of both a warrant and probable cause.” Schneckloth v. Bustam onte, 412 U.S. 218, 219 (1973). As set forth above, we believe that dialing 911 evidences such consent. Consent to a warrantless search can be explicit or can be implied from conduct. The Seventh Circuit recently reviewed the caselaw on implied consent, summa­ rizing the pertinent analysis as follows: Generally, in deciding whether to uphold a warrantless search on the basis of implied consent, courts consider whether (1) the person searched was on notice that undertaking certain conduct, like at­ tempting to enter a building or board an airplane, would subject him to a search, (2) the person voluntarily engaged in the specified conduct, (3) the search was justified by a ‘vital interest’, (4) the search was reasonably effective in securing the interests at stake, (5) the search was only as intrusive as necessary to further the inter­ ests justifying the search and (6) the search curtailed, to some ex­ tent, unbridled discretion in the searching officers. M cGann v. N ortheast III. Regional Commuter R.R., 8 F.3d 1174, 1181 (7th Cir. 1993) (citations omitted).18 18 44W e decline to regard these six factors as dispositive criteria. Rather, these factors should be examined carefully in each case in evaluating the totality o f the circumstances and in respecting the consideration that the courts not unnecessarily extend exceptions to the warrant requirem ent." Id. at 1181. See also Almeida-Sanchez v. United States, 322 Transmission by a Wireless Carrier o f Information Regarding a Cellular Phone U ser’s Physical Location to Public Safety Organizations Applying this analysis to the “ search” here at issue leads us to conclude that a person using his cellular telephone to call 911 impliedly consents to the carrier providing public safety officials with information as to his physical location. Al­ most all, if not all, of the above-enumerated factors will be satisfied. The caller will have voluntarily called 911; the search will be justified by a vital interest in responding to an emergency and should be quite effective in facilitating that response; and the search will be limited to determining the caller’s physical loca­ tion, and thus will be only as intrusive as necessary to respond quickly and effi­ ciently to the emergency and should minimize any risk of unbridled discretion by officers. The only factor possibly raising a question would be the first. In most instances, a person calling 911 will be doing so to obtain help for himself or someone in his immediate vicinity, and thus he will undoubtedly be “ on no­ tice” that calling 911 will entail disclosure of his location. Even if the caller is seeking help for a third party in a different location, he should be deemed to be on notice that his call will entail disclosure of his physical location in order to expedite the government’s response.19 Moreover, this simply is not a situation with any of the indicia of unwarranted interference into the private aspects of a person’s life. In particular, the government’s “ search” is in response to the caller’s request for assistance; it is not a government-initiated intrusion into a per­ son’s private life. RICHARD L. SHEFFRIN D eputy Assistant Attorney General Office o f Legal Counsel 413 U.S. 266, 271 (1973) (warrantless inspections are constitutional where businessmen engaged in federally regulated enterprises “ accept the burdens as well as the benefits o f their trade . . . [and] in effect consent! ] to the restrictions placed upon [them ]” ); United States v. Bonanno , 487 F.2d 654, 658-59 (2d Cir. 1973) (consent shown where “ informer went ahead with a call after knowing what the law enforcement officers were about” ). 19 Although we think it unnecessary, the FCC could consider publishing a notice in the telephone book and/or in the standard service contract signed by each subscriber that anyone calling 911 will be deem ed to consent to disclosure of their physical location. 323

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September 9, 1977 78-84 MEMORANDUM FOR THE COUNSEL TO THE PRESIDENT Presidential Authority— Slovik Case— Constitutional Law—Posthumous Pardons— Review of Sentence (10 U.S.C. § 1552) You have asked for our opinion regarding the President’s authority to act in the case of the late Eddie D. Slovik, who was sentenced to death by a court-martial for desertion and subsequently executed on January 31, 1945. For reasons stated hereafter, we conclude that: (1) the President has no power to review or overturn the August 12, 1977, decision o f the Secretary of the Army; and (2) even assuming that the President might issue a posthumous pardon, its issuance would not remove the disability imposed by statute on his widow, Antoinette Slovik, receiving the proceeds o f the life insurance that she seeks to collect. I. Background Slovik left a widow, who, until recently, apparently made no attempt to collect on the National Service Life Insurance (NSLI) policy o f $10,000 that had been in force on Mr. Slovik during his brief military service.1 The disbursement o f NSLI benefits is entrusted by statute to the Veterans’ Administration. See 38 U .S.C . § 701 et seq. Under 38 U .S.C . § 711: Any person guilty o f mutiny, treason, spying, or desertion, or who, because o f conscientious objections, refuses to perform service in the Armed Forces . . . shall forfeit all rights to [NSLI], No insurance shall be payable for death inflicted as a lawful punishment for crime or for military . . . offense . . . . Mrs. Slovik, apparently anticipating that the VA would deny a claim by her because o f § 711,2 filed an application with the Army Board for Correction of ’The allotm ent from M r. S lovik's pay that paid for this insurance was discontinued on Decem ber 31, 1944, one month prior to his execution. 2M rs. Slovik also asked the Board to assist in having M r. Slovik’s rem ains rem oved from their present burial site in an "unm arked dishonored place in France, to a more suitable resting place.” 2JQ (Continued) Military Records (Board), advancing several arguments as to why his military record should be “ corrected” in such a way that § 711 would no longer be a bar. The Board, after proceedings held on June 15 and 29, 1977, at which Mrs. Slovik was represented by counsel, recommended to the Secretary of the Army that Mrs. Slovik’s application be denied. On August 12, 1977, that recommen­ dation was approved and the application was denied by the Secretary o f the Army. II. The President’s Power of Review Any review of the Secretary of the A rm y’s decision on the application of Mrs. Slovik is governed in the first instance by 10 U .S.C . § 1552, which authorizes such applications to be entertained and establishes to a limited extent the procedures under which they are to be processed. The more detailed procedures actually employed are, under § 1552, promulgated by the several Service Secretaries after approval by the Secretary of Defense. Section 1552 does not explicitly grant or deny the President the power to review decisions made by the Service Secretaries or Boards established pursuant to its provisions. It does, however, state explicitly that “ a correction under this section is final and conclusive on all officers o f the United States.” § 1552(a). This language would arguably prevent the President from overturning a decision favorable to an applicant,3 but it does not address a situation where, as here, the decision of the Board and Secretary has gone against an applicant. Section 1552 does, however, require decisions made on applications to be made “ under procedures established by [the several Service Secretaries] and approved by the Secretary o f Defense . . . . ” We think that, at a minimum, this means that all such decisions are to be made with some semblance of procedural regularity. The Secretary of the Army has adopted procedures to this end. See 32 CFR § 581.3. Under 32 CFR § 581.3(f)(2) the Secretary of the Army possesses final authority, subject only to judicial review, to grant or deny an application for correction. As pointed out in a recent case, the Secretary could, by regulation having the approval of the Secretary of Defense, give final decisionmaking authority to the Board itself, thereby preventing even the Secretary of the Army from reviewing the decision o f the Board so long as the regulation was in force. See, Biddle v. United States, 186 Ct. Cl. 87 (1968). In addition, a number of cases have indicated that the Secretary himself may not reverse a “ decision” of the Board where the Board’s findings are supported by the record. See, e .g ., Weiss v. United States, 408 F. (2d) 416, 422 (Ct. Cl. 1969); Nelson v. M iller, 373 F. (2d) 474, 478 (3d Cir. 1967). (Continued) The Board found this issue to be beyond its jurisdiction, stating that " 3 6 U .S .C . 121 provides the American Battle M onum ents Com m ission with responsibility for m aintaining m ilitary cem eteries in foreign countries. . . . ” ^ h e scant legislative history o f the provision indicates that Congress intended to “ make the . Findings o f the boards not subject to review by other Governm ent departm ents.” S. Rept. No. 788, 82d C ong., 1st sess. 2 (1951). 371 In these circumstances, we think that the President lacks the power of review over a decision made by the Secretary o f the Army because § 581.3(0(2) effectively precludes him from doing so.4 It is a generally accepted principle that courts will review and set aside actions taken by the military not in accord with their own regulations. See, e .g ., P eavy v. Warner, 493 F. (2d) 748, 750 (5th Cir. 1974). Although a departure inuring to the benefit of Mrs. Slovik would probably not be subject to judicial review, we believe that the general principle is fully applicable.5 Concluding, as we do, that the President may not exercise review over the Slovik case, the question arises whether he might nevertheless request the Secretary of the Army to reconsider his decision or to remand the case to the Board for further consideration. It is certainly arguable that the President’s general supervisory power over the execution of the laws under Art. II, § 3, of the Constitution, as well as his power as Commander-in-Chief, would be sufficient to sustain his taking some position in this matter. We do not, however, think that this supervisory power is sufficient to permit him to order reconsideration o f the matter so long as 32 CFR § 581.3(f)(2) is effective. We reach this result because such an order would effectively constitute Presidential intrusion into a quasi-adjudicatory procedure different only in degree from his attempting to review the Secretary’s decision on the merits. The President is, o f course, free at any time to comment on the merits of decisions made by his subordinates. W hether to do so in a specific situation does not pose a legal question p e r se, but we tend to doubt the propriety of his making any statement on the merits of the Secretary’s decision that would in any way compromise possible defense o f that decision by this Department in connection with any judicial review that might be sought by Mrs. Slovik. Our review o f the case, limited to an analysis of the Board’s opinion, indicates to us that its decision could easily withstand judicial review under the narrow scope of review given to courts in these m atters.6 The President would not be precluded from expressing sympathy for Mrs. Slovik’s situation, which was expressed by the Board itself. III. The Pardon Power Another source o f authority potentially available to the President is the pardon power vested in the President under Art. II, § 2, cl. 1, o f the Constitution. In the circumstances o f this case, a threshold question arises as 4W e do not address the question w hether the Secretary o f the Arm y m ight am end the governing regulation so as to provide for Presidential review of som e or all of these cases. 3W e note that were the President thought to have the pow er to review such decisions, a procedure to effect it would most probably have to be established to avoid raising grave questions concerning judicial review. This is so because courts will not review decisions that are thereafter subject to revision by the Executive branch. See, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U .S. 103, 113-14 (1948). An established procedure would have to assure reviewing courts that a decision before them for review was no longer subject to revision by the President. ^ h e articulated standard of review o f such m atters is for arbitrariness or capriciousness. See. Weiner v. United Slates, 148 Ct. Cl. 445 (I960). 372 to whether the President may issue a pardon posthumously. Because this question has never been resolved judicially and the power has been exercised posthumously only on one occasion (apparently inadvertently), we think it prudent to dispose o f the question o f its use in this case on a narrower ground.7 Thus, we turn to the question whether, assuming the President were to pardon Slovik, the effect of that pardon would be to restore to Mrs. Slovik the right to payment of her late husband’s insurance policy despite 38 U .S.C . § 711. Prior Attorneys General have generally taken the position that, while a pardon relieves the offender of all disabilities imposed by way of punishment, it does not relieve an offender o f disabilities that attend a conviction. Thus, Acting Attorney General Davis concluded that a statute forbidding the appointment as a naval officer of any person previously dismissed from the naval service by sentence o f a court-martial did not impose a punishment on such an officer but rather should be viewed as a qualification for appointment that could not be affected by an exercise o f the pardon power. 31 Op. A .G. 225, 226-30 (1918). See also 39 Op. A .G . 132, 134-35 (1938); 36 Op. A .G . 193 (1930); 22 Op. A .G . 36 (1898). Applying the reasoning of these prior opinions to the present case, it is our opinion that § 7 1 1 , insofar as it prevents the payment of insurance proceeds where the insured was executed pursuant to a criminal sentence8 does not constitute a punishment. Rather, as copiously detailed in Simmons v. U nited States, 120 F. Supp. 641 (D. Pa. 1954), the denial of insurance benefits to persons executed as punishment for crimes represents nothing more than Congress’ recognition o f a longstanding public policy in commercial insurance of excluding from risks covered by life insurance the risk that the insured will be executed for crime. In Simmons, a beneficiary of an NSLI policy sought to recover where the insured had been executed by a State for murder. The court, in our view, correctly described the applicable provision of what is now § 711 as involving a contractual exclusion o f risk in recognition of prevailing public policy in this area o f the law. We do not think that the pardon power reaches an exclusion or disability that is imposed not as punishment for crime committed but to fulfill a readily identifiable public policy. L eon U lm an D eputy A ssistan t A ttorney G eneral Office o f L egal Counsel ’Recently, the D eputy Attorney G eneral advised the Counsel to the President that the Departm ent o f Justice did not think the President could grant a posthum ous pardon. O ur own research indicates that there are conflicting internal departm ental m em oranda on this question and that none can be said to resolve the question definitively. 8W e do not address the question w hether denial o f such benefits to a deserter would constitute a punishm ent because it is unnecessary to do so to dispose o f this case. 373

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Status of the United States Postal Service as an “Executive Agency” Under Executive Order No. 12,250 In light of the statutory independence given the United States Postal Service (Service) and its officers, Executive Order No. 12,250 should not be construed to include the Service as an “Executive agency” subject to the Attorney General’s nondiscrimination coordination authority. July 29, 1981 MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION You have requested the views of this Office with respect to the question whether the United States Postal Service (Service) is an “Ex­ ecutive agency” within the meaning of Executive Order No. 12,250, 45 Fed. Reg. 72,995 (1980). For the reasons that follow, we believe that the order should not be construed to include the Postal Service as such an agency, notwithstanding the considerable authority of the President and the Attorney General over the litigating activities of the Service. Under 42 U.S.C. § 2000d-l and 20 U.S.C. § 1682, the President has been granted broad powers to approve the rules, regulations, and orders of general applicability relating to racial, sex, and other forms of discrimination. Executive Order No. 12,250 delegates these powers to the Attorney General. At the same time, the order grants the Attorney General authority to “coordinate the implementation and enforcement by Executive agencies of various nondiscrimination provisions o f” a variety of laws banning discrimination on grounds of race, color, na­ tional origin, handicap, religion, or sex. The Attorney General is re­ quired, for example, to develop standards and procedures for taking enforcement actions and conducting investigations; to promulgate guidelines for establishing time limits on enforcement activities; to im­ plement a schedule for review of the agencies’ regulations; to establish guidelines for development of consistent recordkeeping and reporting requirements and for sharing of information; and to initiate cooperative programs between and among agencies in order to improve the coordi­ nation of the covered laws. Under the order, each executive agency is required to cooperate with the Attorney General in performing its functions by furnishing requested information and submitting plans for 239 the implementation of its responsibilities under the order. The order offers no definition of the “ Executive agencies” that it covers. This Office has recently discussed the “uneasy and unresolved ten­ sion between the dependent and independent aspects of the new [Postal] Service,” Leonard v. United States Postal Service, 489 F.2d 814, 815 (1st Cir. 1974). See Memorandum of June 15, 1979, for the Assistant Attorney General, Civil Division, from Leon Ulman, Deputy Assistant Attorney General, Office o f Legal Counsel.1 We summarize that discus­ sion here. After passage of the Postal Reorganization Act of 1970 (Act), 39 U.S.C. § 101 et seq., the Postal Service was categorized as “an independent establishment of the executive branch of the Govern­ ment. . . .” 39 U.S.C. § 201. The Act provides for a bipartisan Board of Governors who are removable by the President only for cause. § 202(c). Moreover, the Postmaster General and the Deputy Postmaster General are appointed and removable, not by the President, but by the Board of Governors. § 202(c), (d). An agency directed by a board of governors and by chief executive officers who are not freely removable by the President is not “within” the Executive Branch of the government as that term is ordinarily understood. After Myers v. United States, 272 U.S. 52 (1926), it is plain that purely executive officers must be appointed by the President, and removable at his will. Under the Act, by contrast, Congress did not intend Postal Service officials to have that status. The relevant commit­ tee report states that the Service was to be removed from the Presi­ dent’s Cabinet and from the ordinary political process, see H.R. Rep. No. 1104, 91st Cong., 2d Sess. 6, 12-13 (1970), and that the Board was to act as a buffer between management of the Service and the possible influence of partisan politics. In this way, the statute was designed to remove “the day-to-day management of the Postal Service from both Presidential and Congressional areas of concern while still leaving the Postal Service subject to [their] broad policy guidance.” Id. at 13. For purposes of the present inquiry, we need not say whether the President possesses the constitutional or statutory authority to subject to the control of the Attorney General the activities of the Postal Service in the nondiscrimination area. There is a substantial argument that such control would constitute “broad policy guidance” of the sort permitted by the Act. The question here, however, is not one of presidential authority, but o f the intent underlying the order.2 In light of the peculiar status of the Postal Service, we do not believe that the Service should be understood to be included as an “Executive agency” within the meaning of the order. The Service is not defined as such an agency under the Administrative Procedure Act, see 5 U.S.C. 1In that memorandum, we concluded that, as a general matter, the Attorney General has the power to control litigation involving the Service 2 N or need we say which of the statutes covered by the order is applicable to the Postal Service. 240 §§ 103-105. Moreover, both the Act and its history reveal that Con­ gress intended to grant the Service at least some measure of insulation from control by the President and to place the Service in a separate category from the conventional executive departments. See Leonard v. United States Postal Service, 489 F.2d 814. In light of that unequivocal intent, we believe that, if the President intended to include the Postal Service under an executive order granting both substantive and proce­ dural authority to the Attorney General, an explicit statement to that effect would ordinarily be expected.3 Since Executive Order No. 12,250 contains no such explicit statement, but instead refers to “Executive agencies” generally, we interpret the order as not subjecting the Serv­ ice to the Attorney General’s coordination authority. L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel 3 We note in addition that in a memorandum on Executive Order No. 12,250 prepared before the order was signed or drafted in finaJ form, this Office referred to the difficult legal problems that would arise if the order were applied to the so-called “independent” agencies. We have understood the failure to respond to this concern as an indication that the independent agencies were not intended to be included. 241

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Limitations on Presidential Authority To Control Export of Certain Hazardous Substances T h e re g u la to ry sc h em e im posed by c e rtain sta tu te s reg u latin g specific h aza rd o u s su b ­ sta n ces fo r p u rp o ses o f h ealth an d safety d o es n ot p re c lu d e th e P re sid en t from im posing e x p o rt c o n tro ls on th o se substances fo r foreign po licy p u rp o ses u n d e r th e E x p o rt A d m in istratio n A c t (E A A ). S ectio n 17(a) o f th e E A A d o es not su p e rsed e o th e r law s im posing e x p o rt c o n tro ls, but ex p ressly reco g n izes th e effect o f su ch o th e r law s; c o n tro ls u n d er th e E A A th u s m ay exist side-by-side w ith c o n tro ls im posed p u rsu an t to o th e r laws. In su latin g th e v ast ran g e o f p ro d u c ts w h ic h a re su b je ct to d o m estic health and safety reg u latio n s fro m e x p o rt c o n tro ls w o u ld d efeat th e g o als o f th e E A A relatin g to natio n al se cu rity , fo reig n p o licy , and e c o n o m ic stability. November 13, 1980 M EM ORANDUM OPIN IO N FOR T H E DEPUTY COUNSEL TO T H E PR ESID EN T This responds to your request for our opinion whether other statutes limit the President’s authority under the Export Administration Act of 1979 (EAA), Pub. L. No. 96-72, 93 Stat. 503 (1979), 30 U.S.C. app. §2401 (Supp. Ill 1979), to control exports of hazardous substances for foreign policy purposes. Your request further pursues the subject of our memorandum of April 11, 1980, for the Special Assistant to the Presi­ dent for Consumer Affairs, in which we found the general authority for such export controls but added a caveat noting that we did not address the effect, if any, of other statutes regulating hazardous substances.* The General Counsel to the United States Trade Representative has since expressed his opinion in a memorandum (hereinafter Memoran­ dum) that the effect of certain of these statutes is to preclude the imposition of export controls under the EAA. We disagree with this reading of the statutes; and for the reasons that follow, we conclude that the President’s authority under the EA A is not so limited. In his Memorandum, the General Counsel states his view that certain statutes currently controlling the products as to which export controls are being considered contain “express provisions” permitting exports of the products.1 The General Counsel therefore concludes that export • N o t e : T h e text o f the A pril 11, 1980, m em orandum appears in this volum e at p. 568. Ed. 1 T h e Federal Food, D rug, and C osm etic A ct, 21 U .S.C. § 381(dXl); the Public H ealth Service A ct, 42 U .S.C. § 263f(aK3); the C onsum er P ro d u ct Safety A ct, 15 U.S.C. §2067 (Supp. II 1978); the Continued 802 controls under the EAA would be inconsistent with its statutory lan­ guage and would intrude upon congressional authority under Article I, § 8, clause 3 o f the Constitution to regulate foreign commerce. The inconsistency is asserted on the basis of § 17(a) of the EAA which provides that “[n]othing contained in this Act. . . . shall be construed to modify, repeal, supersede, or otherwise affect the provisions of any other laws authorizing control over exports of any commodity.” 50 U.S.C. App. § 2416(a). By this section, the General Counsel finds that Congress has expressly excluded from controls under the EAA any commodity the export of which is provided for under any other law, including the seven specific statutes cited. And, in the face of the asserted congressional prohibition of export controls, he concludes that the Executive has no authority to regulate foreign commerce. We have examined the General Counsel’s Memorandum and in our opinion none of its conclusions is correct. I. A. The General Counsel’s Memorandum rests, at bottom, on the view that each of the seven statutes cited expressly authorizes export of the regulated products. We find no such express authorization. The so-called export authorization cited under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 381(d)(1), provides that a food, drug, device, or cosmetic intended for export shall not be deemed to be adulterated or misbranded within the meaning of the law if it meets certain conditions for export including specification by a foreign pur­ chaser, compliance with the laws of the importing country, and appro­ priate labeling. Section 381(d)(1) is thus not an express authorization of exports at all. It is nothing more than an exemption for exports from the regulatory scheme and the standards required for products intended for use in this country. With minor differences in the requirements that must be met before the exemption from domestic standards will be available, the other cited provisions are to the same effect. Thus the Public Health Service Act requires labeling for export and compliance with the requirements of the importing country, 42 U.S.C. § 263f(a)(3) (electronic products emit­ ting radiation); the Consumer Products Safety Act, labeling for export, no unreasonable risk to consumers' within the United States, and notifi­ cation to the Consumer Product Safety Commission of intent to export, 15 U.S.C. § 2067 (Supp. II 1978); the Federal Hazardous Substances Act, marking for exports, labeling in accordance with the specifications of the foreign purchaser and the laws of the foreign country, no unreasonable risk of injury to persons in the United States, and notificaFederal H azardous Substances A ct, 15 U.S.C. § 1264<b) (Supp. II 1978); the Flam m able Fabrics Act, 15 U.S.C. § 1202 (Supp. II 1978); the Federal Insecticide, Fungicidc, and R odenticide A ct, 7 U.S.C. § 136o (Supp. II 1978); the Toxic Substances C ontrol A ct, 15 U.S.C. §2611. 803 tion to the Commission, 15 U.S.C. § 1264(b) (Supp. II 1978); the Flam­ mable Fabrics Act, labeling for export, and no unreasonable risk to persons in the United States, and notification to the Commission, 15 U.S.C. § 1202(a), (c) (Supp. II 1978); the Federal Insecticide, Fungicide, and Rodenticide Act, preparation or packaging in accordance with the specifications of the foreign purchaser and, if applicable, a signed ac­ knowledgment by the purchaser, with a copy to an appropriate official of the importing country, that the pesticide is not registered for use in the United States and cannot be used in the United States, 7 U.S.C. § 136o(a) (Supp. II 1978); and the Toxic Substances Control Act, label­ ing for export, no unreasonable risk of injury to health within the United States or to the environment of the United States, and in some cases notification to the Administrator of the Environmental Protection Agency of intent to export, 15 U.S.C. § 2611. Nowhere in any of the above-referenced provisions is there any indication of an intent to confer an absolute right to export without regard to any other provisions of law.2 There is merely an exemption from the domestic standards that would otherwise apply.3 B. In the absence of any express authorization for exports under these statutes, the further argument in the Memorandum as to the effect of § 17(a) of the EAA has not even the basis asserted therein. The con­ tinuing relevance of other laws providing for export, as § 17(a) is said to recognize, depends first on a finding that other laws in fact provide, in so many words, for export. We have concluded that the cited statutes do not. But even if they did, the effect of § 17(a) would not be to preclude controls under the EAA. The assertion in the Memoran­ dum to the contrary greatly distorts the language of § 17(a). First, § 17(a) does not address, as the Memorandum asserts, the rela­ tionship between the EAA and other laws that provide for export. Section 17(a), in fact, addresses the relationship between the EAA and laws that do affirmatively provide, just to the contrary, for export controls. The seven statutes cited cannot be at the same time laws expressly authorizing exports and laws authorizing controls over ex­ 2 In fact, § 2 o f the Senate version o f the E A A , w hich contained references to the “ right o f export,” was am ended to substitute the w ord “ ability" for the w ord “ right,” see 50 U.S.C. A pp. §2401(1), specifically to avoid the inference o f “a constitutional o r otherw ise legally enforceable right to export free from governm ent restriction.” S. Rep. No. 169, 96th Cong., 1st Sess. 3-4 (1979) (hereinafter cited as “ 1979 Senate R ep o rt” ). If any o f these seven statutes had conferred a right to export, w e think that it w ould have been m entioned at this point. 3 G iven the clarity o f the language, w e need not review the legislative history o f the E A A , although w e do note that there is no indication in the history that any o f these seven statutes is an export co n tro l law. T h e H ouse rep o rt states only that ”[t]he Export A dm inistration A ct o f 1969 constitutes th e basic authority for co n tro llin g the export o f most civilian products from the United States. (R elated acts are th e A rm s Export C o n tro l A ct, pertaining to the export o f arms, ammunition, and im plem ents o f w ar, and the N uclear N on-Proliferation A ct o f 1978, pertaining to the export o f nuclear m aterials and technology.)” H .R . Rep. N o. 200, 96th C ong., 1st Sess. 2-3 (1979) (hereinafter cited as “ 1979 H ouse R ep o rt” ). W e also have no need to rely upon, although again w e certainly do note, the w ell-settled rule that repeals by im plication are not favored. See, e.g., Morton v. Mancari, 417 U.S. 535, 549 (1974). 804 ports. Second, § 17(a) does not address, as the Memorandum asserts, the effect on further controls under the EAA even as to commodities that are controlled under other laws. Again, § 17(a) is addressed to just the contrary situation. The relationship is stated not in terms of the effect on controls under the EAA but in terms of controls under these other laws. And third, even as to these other laws, the effect is just the contrary of that stated in the Memorandum. Section 17(a) is not a preclusion of further controls- at all. Instead, it expressly recognizes the effect of other controls. C. With this statutory construction, the constitutional argument in the Memorandum also falls. The assertion that the Executive may regulate commerce only as Congress has. provided, and thus may not take actions that Congress has expressly forbidden, is meaningless in the context of the EAA, which not only does not forbid the export con­ trols contemplated here but in fact expressly authorizes them.4 II. There are other significant reasons for our opinion that the regula­ tory scheme of the seven cited statutes does not preclude export con­ trols for foreign policy purposes under the EAA. The argument to the contrary ignores the history of § 17(a), fails to take account of the effect of the argument on national security and short-supply controls, and represents a fundamental misunderstanding of the purpose and function of the EAA. A. The provision that is now § 17(a) derives from § 10 of the Export Control Act of 1949, which provided: The Act of February 15, 1936 (49 Stat. 1140), relating to the licensing of exports of tinplate scrap, is hereby super­ seded; but nothing contained in this Act shall be con­ strued to modify, repeal, supersede, or otherwise affect the provisions of any other laws authorizing control over exports of any commodity. Pub. L. No. 81-11, § 10, 63 Stat. 7, 9 (1949). The legislative history of § 10 makes clear both the reason for the change in the law relating to tinplate scrap and the fact that no other changes in existing export control laws were made. Under prior law, the export licensing author­ ity for tinplate scrap was conferred upon the Department of State but was, in practice, handled by the Department of Commerce. Section 10 had the effect of transferring the licensing authority to the agency that would administer the 1949 Act and also conforming the law to the prior practice. S. Rep. No. 31, 81st Cong., 1st Sess. 7 (1949). Yet there 4 W e d o not wish to be understood as conceding, how ever, that the E xecutive has no independent constitutional au th o rity to regulate com m erce for foreign policy reasons. Because the E A A clearly confers this authority by statute, we have no need to consider the constitutional question. 805 were in effect at the time of the 1949 Act export controls on other commodities, such as narcotics, gold, ammunition, arms, implements of war, tobacco seed, and atomic energy materials, H.R. Rep. No. 18, 81st Cong., 1st Sess. 12 (1949); the Senate report, supra, mentions helium also. As to these, “the bill makes no change whatever in the present laws.” S. Rep. No. 31, supra; see also H.R. Rep. No. 18, supra. The Export Administration Act of 1969, Pub. L. No. 91-184, § 12(a), 83 Stat. 841, 846 (1969), retained verbatim the language of § 10. The 1979 Act deleted the language expressly superseding the prior law as to tinplate scrap but retained the language continuing the effectiveness of other laws authorizing control over exports. There is no explanation in the legislative history why the 1969 Act carried over the reference to tinplate scrap or why the 1979 Act deleted it, but the process is in any event not relevant to the issue here. What is important is that the 1979 Act retained in § 17(a) that portion of the prior provisions clearly stating the legislative intent that the EAA did not replace the regula­ tory authority existing pursuant to other laws. By its literal terms, § 17(a) goes no further. As we noted above in discussing the construction given to § 17(a) in the Memorandum, the section does not address the effect, if any, of this other regulatory authority on the authority under the EAA. But in preserving the authority to impose controls pursuant to other laws, § 17(a), like its predecessors, creates a regulatory structure in which export controls under these other laws exist side by side with controls under the EAA. At least in the absence of any indication to the contrary in these other statutes, the reasonable conclusion to be drawn from the history of § 17(a), and the logical implication of the regulatory structure that results, is that controls under the EA A also may exist side by side with these other controls. As we discuss at length above, we find no such contrary indication in any of the seven statutes cited. The Memorandum is addressed only to export controls imposed for foreign policy purposes. But the EAA also provides authority to impose controls in the interests of national security, or to prevent undue diminution of goods in short supply, 50 U.S.C. App. §§ 2404, 2406. The authority as to national security controls is conferred in furtherance of the congressionally declared policy of using export con­ trols “to restrict the export of goods and technology which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States.” 50 U.S.C. App. § 2402(2)(A). As to short-supply controls, the export control authority is intended to implement the policy of using export controls “to protect the domestic economy from the excessive drain of scarce materials and to reduce the serious inflationary impact of foreign demand.” 50 U.S.C. App. § 2402(2)(C). 806 B. The Memorandum does not discuss the effect of § 17(a) on these national security or short-supply controls, but there is nothing in § 17(a) that would limit to foreign policy controls the effect attributed to that provision in the Memorandum. Under that interpretation, national secu­ rity, controls would be precluded merely because another statute im­ posed health and safety regulations on domestic distribution of a par­ ticular product but utilized a more lenient standard for exports. For this is all that the seven cited provisions do; and this, of course, protects the national security not at all. A health-and-safety regulatory scheme that included different standards for domestic distribution and export would similarly preclude short-supply export controls even though the other statute protected the national economy not at all. This interpretation of § 17(a) cannot be squared with the clear legislative intent as expressed in the congressional declarations of policy.5 C. In the final analysis, this result is the clearest indication that the view in the Memorandum must be rejected. In pursuit of national security, foreign policy, and economic stability, the EAA was intended to provide comprehensive authority for the control of exports. Nothing less would meet the stated goals of increasing the emphasis on national security, 1979 Senate Report at 4, and implementing “the full range of U.S. foreign policy goals,” H.R. Rep. No. 482, 96th Cong., 1st Sess. 43 (1979) (1979 Conference Report) while at the same time minimizing uncertainty in export policy, increasing the efficiency of applicable administrative procedures, obtaining increased cooperation by our allies, and providing the Executive with the flexibility to react promptly and appropriately to extreme and varied situations. See 1979 Senate Report at 2-3, 8; 1979 House Report at 4-5; 1979 Conference Report at 43. Insulating a vast range of products from export controls would in one stroke defeat these goals and prevent any kind of a comprehensive and consistent export policy. And, as increased concern about health and safety requires expanded domestic regulation of haz­ ardous substances, this approach would force the Executive to choose, on the one hand, between forgoing domestic .regulation (or seeking in the course of such regulation export standards identical in all circum­ stances to domestic standards) or, on the other hand, retaining the authority to control exports as appropriate under the EAA. We cannot believe that Congress intended to force such a choice. The legislative history and the statements of findings and policy in the EAA are at odds with this interpretation and indicate instead that, where export 5 O ne additional indication that these health-and-safety regulations do not preclude the imposition o f export controls under the E A A is the inclusion o f § 6 (0 o f the A ct, w hich provides that the EA A does not authorize controls on medicine o r medical supplies, 50 U.S.C. A pp. § 2405(f). A lthough the products that fall w ithin this exclusion might not be identical to those regulated under the Federal Food, D rug, and C osm etic A ct there is clearly some overlap. If 21 U.S.C. § 3 8 1 (d X l) had the effect that the M em orandum contends it has, § 6 (0 w ould have been either om itted as unnecessary o r at least phrased w ith reference to § 381(d)(1) 807 controls under the EAA become important for reasons of national security, foreign policy, or short domestic supplies, the President would have the authority, notwithstanding any other statute that allows ex­ ports in the absence of one of these reasons, to impose those controls. For all the foregoing reasons, we reject the view in the Memoran­ dum that the seven statutes cited preclude the imposition of export controls pursuant to the EAA. We find no such preclusion and find instead the President’s continuing authority under the EAA to control exports as appropriate. L e o n U lm a n Deputy Assistant Attorney General Office o f Legal Counsel 808

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Trials of Newspaper Personnel Accused of Disclosing Naval Secrets It is probable that the newspaper personnel accused of violating the Espionage Act by disclosing naval secrets can each be tried in any district in which the newspaper containing the secrets was received by a subscriber or newsstand. The newspaper personnel would be entitled to separate trials unless a conspiracy to violate the Espionage Act can be shown. June 16, 1942 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL In an accompanying memorandum of today’s date,* the substantive aspects of certain disclosures of naval information are discussed. A short statement of facts is there given. This memorandum discusses the following questions: (1) Assuming a violation of law by the reporter, the managing editor of B newspaper, the company publishing it, and the publisher, can they be tried in any district in which the newspaper was received by a subscriber or newsstand? (2) Can these trials be combined? (3) Assuming a violation of the law by the managing editors of B and C newspapers, and a conspiracy between them and A, the reporter, can all be tried jointly in a certain district in which subscribers to both B and C can be found? If no conspiracy exists? The answers appear to be as follows: (1) Each defendant can probably be tried in any district in which the newspaper was received. (2) The trials will be separate, in the absence of proof of conspiracy. (3) Assuming a conspiracy, the trial of all can be held jointly in a common district. * Editor’s Note: That memorandum opinion precedes this one (Criminal Liability for Newspaper Publication of Naval Secrets, 1 Op. O.L.C. Supp. 93 (June 16, 1942)). 102 Trials of Newspaper Personnel Accused of Disclosing Naval Secrets I. Problems of Venue; Place of Trial Assuming a violation of the law by the reporter and his superiors—managing editor, publisher, and newspaper company—it is probable that each defendant can be tried (whether separately or jointly will be discussed below) in any district in which a copy of the newspaper containing the criminal dispatch was received by a subscriber or newsstand. The Constitution of the United States provides that “The trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed . . . ,” Article III, Section 2, and that “In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ,” Amendment VI. These constitutional provisions do not give a defendant a constitutional right to be tried only in the district of his residence or principal place of business. Haas v. Henkel, 216 U.S. 462 (1909). His right is to a trial in the district where the crime was committed. It seems to be reasonably well established by the Supreme Court that a “crime,” which involves a sequence of acts crossing district boundaries, is committed in any district in which any substantial act in the sequence took place. Hyde v. United States, 225 U.S. 347 (1911); United States v. Lombardo, 241 U.S. 73 (1915). The discretion of the Attorney General and the constant supervision of the courts are regarded as sufficient safeguards against double jeopardy and unnecessary multiplicity of suits. The most significant act in the crime of “communicating” or “transmitting” a document relating to national defense to “any person not entitled to receive it” under section 1(d) of the Espionage Act1 must be the actual presentation of the contents of such a document to the person not entitled to receive it. When such communication or transmission is effected through the medium of a newspaper, that act occurs only when the recipient of the newspaper has it in his control. The factual chain of events which constitute the legal crime begins of course when the reporter first illegally scans the forbidden document, but it does not end until the whole institutional apparatus of newspaper publication has deposited the finished paper in the hands of the subscriber or purchaser. To seize upon any one factual event in the crime chain—such as the physical rolling of the papers off a press— and to say that such an event only is “the crime” and that the crime is “committed” only at the locus of that event would be as unrealistic as it would be subversive of 1 Act of June 15, 1917, ch. 30, § 1(d), 40 Stat. 217, 218, codified at 50 U.S.C. § 31(d) (1940). 103 Supplemental Opinions of the Office of Legal Counsel in Volume 1 the policy of the statute. It is not some physical step in the publishing process which is prohibited but the communication of defense information to unauthorized recipients. The fact that there may be unauthorized recipients in many districts only aggravates the crime. It would put an insuperable burden upon the government to require it to show which unauthorized recipients actually passed the information on to the enemy and, hence, to fix its venue there. Direct case authority to support this reasoning is scant. Helpful analogies can, however, be found in cases involving the unlawful transmission of goods and fraudulent mail practices. Charles C. Montgomery, Manual of Federal Jurisdiction and Procedure § 1150 (4th ed. 1942). The famous old case of In re Palliser, 136 U.S. 257 (1890), which held that the offense of tendering a contract for the payment of money in a letter mailed in one district and addressed to a public officer in another, to induce him to violate his official duty, could be tried in the district in which the letter was received by that officer, is squarely in point. The opinion contains excellent supporting language. Opposing authority is equally scant. The federal criminal libel cases are old, by lower courts, not numerous, and poorly reasoned. They have been often criticised. Justin Miller, Handbook of Criminal Law 495 (1934); Recent Cases, Criminal Law—Jurisdiction—Locality of Publication of Libel, 23 Harv. L. Rev. 309 (1910); Comment, Copies of a Printed Criminal Libel as Separate Offenses, 26 Yale L.J. 308 (1916–17). Many state court decisions are to the contrary. Annotation, Venue of Action for Libel in Newspaper, 37 A.L.R. 914 (1925). The leading case, United States v. Smith, 173 F. 227 (D. Ind. 1909), could easily be distinguished or discredited. One section of the judicial code, 28 U.S.C. § 103, could be construed as relevant. This provides that: When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. Rev. Stat. § 731 (2d ed. 1878), 18 Stat. pt. 1, at 139 (repl. vol.), as amended by Act of Mar. 3, 1911, ch. 231, § 42, 36 Stat. 1087, 1100. If the argument above that a significant act of the chain “crime” was “committed” in the district where the newspaper was received is accepted, an equally plausible argument could be made under this section that the offense was “completed” in such district. The argument from the facts and from policy would be substantially the same. For determining the place of trial, and allocating power between courts, the concept of “venue” serves the same function for different federal districts that the concept of “jurisdiction” serves for the states. State courts are—it should be noted by way of analogy—rapidly getting away from the naive notion that a “crime,” 104 Trials of Newspaper Personnel Accused of Disclosing Naval Secrets involving a sequence of acts crossing state boundaries, is physically “located” on some one spot. Thus Mr. Berge observes: [T]he conclusion is irresistible that if the constituent acts of a given crime occur in more than one state, each such state has an equally valid claim to jurisdiction over the whole crime. Such extra-territorial elements should be frankly recognized by courts and no attempt should be made to cover them with legal fictions. Wendell Berge, Criminal Jurisdiction and the Territorial Principle, 30 Mich. L. Rev. 238, 269 (1931). II. Separate Trials Where two or more defendants are accused of the same crime, i.e., if they are conspirators, or principal and accessory, they may be tried together. Even here, however, the court may in its discretion order separate trials, upon proper motion. Where the crimes are different, though related in nature or linked by events, the defendants are entitled to separate trials, if the objection is seasonably raised. See Montgomery, Federal Jurisdiction and Procedure § 1238; William T. Hughes, Federal Practice, Jurisdiction & Procedure § 7084 (1931 & Supp. 1941). In the instant case, unless the conspiracy theory is relied upon, the defendants would appear to be entitled to separate trials. III. Conspiracy If a conspiracy to violate the Espionage Act can be shown (which does not appear probable on the facts now known to me), the defendants can be tried together in any district in which the conspiracy was formed or in which an act was done to effectuate the object of the conspiracy. Hughes, Federal Practice § 6849. IV. Questions of Policy The newspapers usually stand together on questions affecting their common interest. The locus of a suit against reporters, editors and proprietors is a matter of major importance to the publishing trade. If it is established that suits based on libel or violations of the Espionage Act can be brought at any point at which even a single subscriber receives the publication, the trade would feel itself in grave jeopardy. Accordingly, an attempt to start a prosecution at a point remote from the place of publication might raise a nationwide outcry from the press, and prevent the public from reaching an understanding of the merits of the case. OSCAR S. COX Assistant Solicitor General 105

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Designation of Acting Solicitor of Labor Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment, could be given a second position in the non-career Senior Executive Service in the Department of Labor before or after his recess appointment expires and, while serving in his non-career Senior Executive Service position, could be designated as the Acting Solicitor after his recess appointment expires. November 15, 2002 MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT You have asked whether Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment, could be designated the Acting Solicitor after his recess appointment expires. You have asked us to address two scenarios. Under the first scenario, Mr Scalia would be given a second position in the non-career Senior Executive Service in the Department of Labor before his recess appointment expires. Under the second scenario, he would be given the non-career Senior Executive Service position in the Department of Labor after his recess appointment expires. We conclude, for the reasons stated below, that under either scenario Mr. Scalia could be designated, while serving in his non-career Senior Executive Service position, as the Acting Solicitor after his recess appointment expires. On April 30, 2001, the President nominated Eugene Scalia to be Solicitor for the Department of Labor. 147 Cong. Rec. 6508 (2001). After the Senate returned all pending nominations when it took a long intrasession recess, the President nominated Mr. Scalia again on September 4, 2001. 147 Cong. Rec. 16,339 (2001). Once again, the Senate failed to act on the nomination. The President gave Mr. Scalia a recess appointment during the Senate’s recess from December 20, 2001, to January 23, 2002, and submitted his nomination to the Senate on February 5, 2002. 148 Cong. Rec. 600 (2002). The Senate has not acted upon this last nomination, and Mr. Scalia’s recess appointment will expire when the Senate next adjourns sine die. U.S. Const. art. II, § 2, cl. 3. I. Under either scenario, Mr. Scalia would lawfully hold a position in the noncareer Senior Executive Service. To begin with the second scenario: There is no question that Mr. Scalia may be given a position in the non-career Senior Executive Service in the Department of Labor after his recess appointment as Solicitor for the Department of Labor expires. 1 1 It is possible that an interruption in Mr. Scalia’s government service—i.e., the time between the expiration of his recess appointment and the commencement of his work in the non-career Senior 211 227-329 VOL_26_PROOF.pdf 221 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 As for the first scenario: We also believe that Mr. Scalia, while holding the office of Solicitor for the Department of Labor by recess appointment, could simultaneously hold a position in the non-career Senior Executive Service in the Department of Labor. We have repeatedly concluded that “there is no longer any prohibition against dual office-holding.” Memorandum for Honorable John D. Ehrlichman, Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, at 2 (Feb. 13, 1969) (“Rehnquist Memorandum”); see also Memorandum for James H. Thessin, Deputy Legal Adviser, Department of State, from Randolph D. Moss, Deputy Assistant Attorney General, Re: Dual Office-Holding at 2 (Dec. 3, 1997) (“Dual Office-Holding”); Memorandum for Philip B. Heymann, Deputy Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Creation of an Office of Investigative Agency Policies (Oct. 26, 1993) (“Office of Investigative Agency Policies”); Dual Office of Chief Judge of Court of Veterans Appeals and Director of the Office of Government Ethics, 13 Op. O.L.C. 241, 242 (1989) (“Dual Office”); Memorandum for Arnold Intrater, General Counsel, Office of White House Administration, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Dual Office of Executive Secretary of National Security Council and Special Assistant (Mar. 1, 1988); Memorandum for the Honorable George P. Williams, Associate Counsel to the President, from Leon Ulman, Acting Assistant Attorney General, Office of Legal Counsel, Re: Dual Appointment (June 24, 1974); Memorandum for the Honorable Myer Feldman, Special Counsel to the President, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, Re: Fixing of Salary of Director of Office of Economic Opportunity (Aug. 19, 1964). In 1964, Congress repealed a statute generally barring the holding of more than one office, see Rehnquist Memorandum at 1, and the current statute forbidding the receipt of pay for holding more than one position, 5 U.S.C. § 5533 (2000), “impliedly permits” dual officeholding. Dual Office, 13 Op. O.L.C. at 242. Furthermore, as we have pointed out, it is of no consequence if one of the offices to be held is Senate-confirmed and the other is not. See Rehnquist Memorandum at 2. A possible limit on the holding of two offices, however, may arise from the doctrine of “incompatibility.” This doctrine, which existed in common law, “precludes a person from holding two offices if public policy would make it improper for the person to perform both functions, such as when the functions of the offices are inconsistent with each other.” Office of Investigative Agency Policies at 6 (citations omitted). “The doctrine has been stated in various ways, sometimes tautologically, but usually states that offices that are incompatible ‘are such as bear a special relation to each other; one being subordinate to and interferExecutive Service position—might have certain adverse consequences for him. But this issue, which you have not asked us to address, has no bearing on your question. 212 227-329 VOL_26_PROOF.pdf 222 10/22/12 11:13 AM Designation of Acting Solicitor of Labor ing with the other so as, in the language of Coke, to induce the presumption that they cannot be executed with impartiality and honesty.’” Id. (quoting 3 McQuillin, The Law on Municipal Corporations § 12.67 (1982)). As we have noted, “[i]t is arguable that [the doctrine] has either fallen into desuetude or been repealed by statute.” Memorandum for Edward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Appointment as Associate Attorney General at 3, 4 (June 14, 1983). But see United States v. Thompson, 475 F.2d 1359, 1363 (5th Cir. 1973) (discussing whether positions have any “inherent” conflict). Even assuming the continued validity of the doctrine, however, a recess appointee could be appointed to another office as long as “[n]either office, as a matter of statute, reports to the other or reviews determinations that the other has made.” See Dual Office-Holding at 4. Under the Dual Compensation Act, 5 U.S.C. § 5533, the recess appointee could receive the pay for only one of the offices. As we have interpreted the Act, the holder of two offices “must be paid the higher salary if it is fixed by law,” because he “would otherwise be waiving a right to compensation established pursuant to statute—which is unlawful.” Dual Office, 13 Op. O.L.C. at 243 n.3 (citations omitted). 2 II. Under either of your two scenarios, we believe that, after expiration of his recess appointment, Mr. Scalia may be designated under the Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d (2000), to act in the position he will have vacated when his recess appointment expired. Under the Vacancies Reform Act, the President “may direct an officer or employee of [an] Executive agency to perform the functions and duties of [a] vacant [Senate-confirmed] office temporarily in an acting capacity,” subject to specified time limits, provided that, during the year preceding the occurrence of the vacancy, the officer or employee served for at least 90 days in a position in that agency for which the rate of pay equaled or exceeded the rate for GS-15 of the General Schedule. 5 U.S.C. § 3345(a)(3). By virtue of his non-career Senior Executive Service position with the Department of Labor, Mr. Scalia would be “an officer or employee” of that agency, and, during the year before the expiration of his recess appointment created a vacancy, he would have served for at least 90 days in a position—the office of Solicitor, to which he was recess appointed—for which the pay exceeded the GS-15 rate. By 2 A Senior Executive Salary might, or might not, exceed the Executive Level IV pay of the Solicitor of Labor. Salaries in the Senior Executive Service cover a range. 5 U.S.C. § 5382(a). The lowest level of Senior Executive Service pay, even with a “locality-based comparability” adjustment for Washington, D.C., see 5 U.S.C. § 5304 (2000), would be less than the pay for Executive Level IV, while the higher levels would exceed the pay for Executive Level IV. 213 227-329 VOL_26_PROOF.pdf 223 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 the plain terms of the Vacancies Reform Act, he would be eligible to be designated to act. 3 There are two contrary arguments, the first based on the Vacancies Reform Act and the second on the Recess Appointments Clause. In our view, neither argument is persuasive. The first argument is that, under the Vacancies Reform Act, the relevant vacancy would have occurred when the recess appointee’s predecessor left office and that the recess appointee, unless he qualified by virtue of service in the agency before then, would not be able to act in the position. The basis for this argument would be the provision of the Vacancies Reform Act stating that the Act is the exclusive means for designation of an acting official, with two exceptions—(1) a statute expressly authorizing the President, a court, or a head of a department to name an acting official or a statute expressly designating an official to act, or (2) the Recess Appointments Clause of the Constitution. 5 U.S.C. § 3347(a). According to this argument, the Vacancies Reform Act thus treats a recess appointment as identical to an acting designation, and an acting designation does not fill an office but only assigns its duties and powers. The provisions of the Vacancies Reform Act that allow designations of acting officials but set time limits on their service, for example, contemplate that a “vacancy” occurs when the occupant dies or resigns or is otherwise unavailable (except as a result of sickness), 5 U.S.C. §§ 3345-3346, and the departure of an acting official does not create a new vacancy. So, too, as this argument would go, the expiration of a recess appointment does not create a new vacancy. The language of the Vacancies Reform Act refutes this argument. While the statute provides that an acting official only will “perform the functions and duties of the [vacant] office temporarily,” id. § 3345(a)(1), (2), (3), it states that a recess appointment “fill[s] a vacancy,” id. § 3347(a)(2). Therefore, when the recess appointment ends, a new vacancy is created. We accordingly would read the statutory reference to recess appointments as simply making clear that Congress did not intend, by the Vacancies Reform Act, to restrict the President’s recess appointment power in any way. The second argument is that, because an acting official has the same duties and powers as a recess appointee, a designation to act would extend the recess appointment past the constitutionally mandated limit of “the End of [the Senate’s] next Session.” U.S. Const. art. II, § 2, cl. 3. This argument, in our view, would ignore the differences between holding an office and acting in it. An acting official does not hold the office, but only “perform[s] the functions and duties of the 3 A provision of the Vacancies Reform Act that, in some circumstances, forbids an official to act in a position for which he has been nominated, 5 U.S.C. § 3345(b)(1), does not apply if an official is acting pursuant to the President’s designation. See Guidance on Application of the Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (Question 15). 214 227-329 VOL_26_PROOF.pdf 224 10/22/12 11:13 AM Designation of Acting Solicitor of Labor office.” 5 U.S.C. § 3345(a)(1), (2), (3). He is not “appointed” to the office, but only “direct[ed]” or authorized to discharge its functions and duties, and he thus receives the pay of his permanent position, not of the office in which he acts. See 5 U.S.C. § 5535(a) (2000). A recess appointee, on the other hand, is appointed by one of the methods specified in the Constitution itself, see Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not an “inferior” procedure to appointment with Senate confirmation); he holds the office; and he receives its pay. We therefore conclude that a designation to act would not unconstitutionally extend the tenure of a recess appointee. Mr. Scalia’s service as Acting Solicitor would be subject to the time limits in 5 U.S.C. § 3346. Ordinarily, an acting official’s service, absent any further action, may continue for 210 days from the occurrence of the vacancy. 5 U.S.C. § 3346(a)(1). However, “[i]f a vacancy occurs during an adjournment of the Congress sine die, the 210-day period . . . shall begin on the day that the Senate first reconvenes.” Id. § 3346(c). If the Senate does not adjourn sine die before the House, we believe that the vacancy here would occur “during an adjournment sine die of the Congress.” The office would be filled at all times that Congress was in session, because the recess appointment would expire “at the End of [the Senate’s] . . . Session.” U.S. Const. art. II, § 2, cl. 3. Notwithstanding the usual 210-day limit, if the President submitted a nomination for the vacant office (including a nomination of Mr. Scalia), Mr. Scalia’s service could continue as long as the nomination was pending in the Senate. Id. § 3346(a)(2). If the Senate rejected or returned the nomination or the President withdrew it, a new 210-day period would begin. Id. § 3346(b)(1). Once again, however, if the President submitted a nomination, the service could continue while the nomination was pending. Id. § 3346(b)(2). Rejection, return, or withdrawal of the nomination would start a final 210-day period, which would not be suspended by the President’s making another nomination. Id. § 3346(b)(2)(B). If any of the 210-day periods ends when the Senate is not in session, the second day on which the Senate is next in session and is receiving nominations is deemed the last day of the period. Id. § 3348(c). M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 215 227-329 VOL_26_PROOF.pdf 225 10/22/12 11:13 AM

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Constitutionality of Seizing the Passports of Individuals Found to be Importing Controlled Substances Into the United States A C ustom s Service directive to seize as evidence o f a federal crim e the passports of individuals found to be im porting controlled substances into the U nited S tates would not implicate the Fourth o r Fifth A m endm ents to the U nited States Constitution, nor give rise to any valid constitutional claim s o f denial o f due process or deprivation o f freedom to travel. March 15, 1988 M em orandum O p in io n f o r t h e A ttorney G eneral This memorandum evaluates the legality of the proposal by the United States Customs Service to seize the United States passports of individuals found to be in possession of illegal drugs upon entering the United States. In our view, the proposal involves nothing more than the lawful seizure of evidence of crime and raises no novel or substantial questions under the Fourth or Fifth Amendments. Indeed, according to the Customs Service, current practice is to seize passports in a large number of serious crimes. The current proposal would simply extend that practice to all cases involving the importation of any quantity of illegal drugs. There has been some confusion in the press accounts describing the Customs pro­ posal and, therefore, we begin with a brief description of the plan. I. Background Under the Customs Service directive, beginning March 15,1988, Customs Ser­ vice officials are to seize an individual’s U.S. passport “as criminal evidence” and all “other evidentiary material” whenever “a person is found to be in viola­ tion of federal, state, or local criminal laws regarding the importation and/or pos­ session of controlled substances.” Memorandum to All Regional Commission­ ers, District Directors, Inspection and Control Stations, Regional and District Counsels, Special Agents in Charge, from Commissioner of Customs, Re: Seizure of Controlled Substance Violator Passports for Evidence at 1 (Mar. 8, 1988) (“Customs Directive”). The individual will be given a custody receipt for retained or seized property such as the passport and other personal items being held as ev­ idence. According to officials from the State Department, an individual whose passport is seized and held as evidence of importation of illegal drugs may ap­ ply for, and, at least absent a risk to national security, be granted, a new pass­ port.1 1 Meeting with Mary V. Mochary, Deputy Legal Advisor, United States Department of Slate (M ar 14,1988). 59 The local Customs Duty Agent will then be notified of the violation, and make a determination whether the violator should be arrested or released. In addition, the Customs Duty Agent is directed to “attempt to obtain federal prosecution of the violator” under 21 U.S.C. § 844 (possession of a controlled substance) and 21 U.S.C. § 952 (importation of a controlled substance), or, if federal prosecu­ tion is declined, to “attempt to obtain state or local prosecution for violations of any applicable state laws concerning controlled substances.” Customs Directive at 2. If federal, state, or local prosecution is accepted, the Customs Duty Agent is directed to initiate a chain of custody and transfer the passport and evidence to the appropriate officials for use in prosecution. In addition, “[t]he chain of cus­ tody must state that once the passport is no longer required as criminal evidence, th e . .. officer having possession must send it directly to the Department of State.” Id. If federal, state, and local prosecution is declined, the Customs Service is to forward seized passports to the Department of State for disposition and notify the violator of the address to which he may direct inquiries concerning his passport. II. Discussion As described in the Customs Directive, the plan to seize the passports of those engaged in the importation of controlled substances into the United States ap­ pears to involve nothing more than the lawful seizure of evidence of a crime pur­ suant to a lawful search. It has long been established that “routine searches of persons and things may be made upon their entry into the country without first obtaining a search warrant and without establishing probable cause or any sus­ picion at all in the individual case.” 1 Wayne R. LaFave & Jerold H. Israel, Crim­ inal Procedure § 3.9, at 326 (1984) (footnote omitted). According to the Supreme Court, “searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property cross­ ing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). Assuming a lawful border search, customs officials are entitled to seize all ev­ idence of a crime for use in subsequent prosecution. In Warden v. Hayden, 387 U.S. 294 (1967), the Supreme Court abandoned any distinction between seizure of ‘“ mere evidence’” and seizure of “fruits, instrumentalities or contraband” for purposes of the Fourth Amendment, and held that evidence could be seized so long as there is “a nexus—automatically provided in the case of fruits, instru­ mentalities or contraband—between the item to be seized and criminal behav­ ior.” Id. at 307. The passport of an individual found to be in possession of a controlled sub­ stance upon entering the United States is clearly subject to lawful seizure. Under federal law, it is a felony “to import into the United States from any place out­ side thereof, any controlled substance . . . or any narcotic drug.” 21 U.S.C. § 952(a). As recently stated by the Fourth Circuit, “[a] critical element of the of­ fense is that the defendant import the substance or cause it to be imported.” United 60 States v. Samad, 754 F.2d 1091,1096(4thCir. 1984). Under federal law, the only means by which an American can lawfully enter or leave the country—absent a presidentially granted exception— is with a passport. See 8 U.S.C. § 1185(b). Thus, even assuming that an individual’s passport is not itself an instrumentality of the crime of importing drugs, it certainly constitutes evidence with a nexus to the crime of importation of drugs. The passport is evidence of the individual’s identification, destination, and normally his place of origin. Since the offense of importation requires the prosecution to prove that the defendant imported drugs (1) into the United States, and (2) from a place outside of the United States, there is certainly a nexus between the defendant’s passport and criminal behavior. See Warden v. Hayden, 387 U.S. at 307. Of course, an individual whose passport has been seized as evidence in these circumstances may be entitled to its return following conviction, acquittal, or a decision not to prosecute.2 See Warden v. Hayden, 387 U.S. at 307-08. But the mere fact that properly seized evidence may be subject to return does not in any way affect the legality of the initial seizure. Id. at 307-10. Under the Customs Directive, when they are of no further evidentiary use, passports seized as evi­ dence of importation of controlled substances are to be forwarded to the Depart­ ment of State with appropriate notification to the individual to whom the pass­ port was issued. The State Department may hold the passport pending a request for its return or determine immediately whether there are adequate grounds un­ der applicable regulations for revoking the passport.3 There is no valid constitu­ tional objection to this scheme. First, post-deprivation process is necessarily ad­ equate when a passport is seized lawfully as evidence of crime. See Warden v. Hayden, 387 U.S. at 307-08; cf. Haig v. Agee, 453 U.S. 280,309-10 (1981) (post­ revocation notice and hearing is constitutionally sufficient when passport revoked on the ground that “there is a substantial likelihood of ‘serious damage’ to na­ tional security or foreign policy as a result of a passport holder’s activities in for­ eign countries”). 2 In addition, an individual may seek return o f his passport prior to trial pursuant to Federal Rule of Criminal Procedure 41 (e) That rule provides. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return o f the property on the ground that he is entitled to lawful possession o f the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision o f the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district o f trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12 Thus, the denial of a motion for the return o f seized property under Rule 41(e) is in effect a finding that the search and seizure were lawful, and therefore an individual whose passport has been seized would have no independent legal objection to retention o f his passport for use as evidence. 3 At a meeting on March 14,1988, Mary V. Mochary, Deputy Legal Advisor, United States Department of State, informed this Office that the State Department does not intend to revoke passports it receives from the Customs Service pursuant to the Customs Directive. According to Ms. Mochary, the State Department’s practice has been to hold passports used as evidence until the persons to whom they were issued request their return or until the pass­ ports expire. Ms. Mochary stated that few, if any, individuals have requested return o f a seized passport, preferring simply to apply for and be issued a new one. 61 Further, there would be no unconstitutional infringement of the citizen’s free­ dom to travel abroad. In the first place, the freedom to travel apparently will not be infringed at all since, as noted below, the State Department will issue a new passport even to a person whose passport has been seized as evidence in a drug trafficking or other criminal prosecution. In light of the availability of a replace­ ment passport, there is no plausible argument that a temporary deprivation of one’s passport meaningfully restricts the liberty to travel abroad. In any event, the Supreme Court has recognized repeatedly that this freedom “is subject to reasonable governmental regulation,” and that “thefreedom to travel outside the United States must be distinguished from the right to travel within the United States.” Haig v. Agee, 453 U.S. at 306. For this proposition, the Agee Court relied on Califano v. Aznavorian, 439 U.S. 170 (1978), in which the Court explained: The constitutional right of interstate travel is virtually unqual­ ified. By contrast the ‘right’ of international travel has been con­ sidered to be no more than an aspect o f the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment. As such this ‘right,’ the Court has held, can be regulated within the bounds of due process. Id. at 176 (citations omitted) (quoting Califano v. Torres, 435 U.S. 1, 4 n.6 (1978)). For the reasons already stated, the seizure and retention of a passport as evidence of criminal activity is consistent with due process. Whether the Secre­ tary o f State’s potential, future revocation o f the passport would be reasonable and comply with due process will depend on the facts and circumstances sur­ rounding that action, see generally Haig v. Agee, and would not bear upon the legality of the actions to be taken pursuant to the Customs Directive.4 Thus, even if replacement passports were not provided, there would be no constitutional im­ pediment to seizing passports in this manner. Conclusion The Customs Directive to seize as evidence the passports of individuals found to be importing controlled substances into the United States raises no novel or substantial constitutional questions. Supreme Court precedent clearly establishes 4 U nder the State D epartm ent’s current regulations, a passport may be revoked if “ [t]he Secretary determines that the national’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy o f the United States ” See 22 C.F.R. §§ 51.71(a), 51.70(b)(4). Any action taken by the Secretary that adversely affects the ability o f a person to receive or use a passport is subject to the provisions of 22 C.F.R. §§ 51.80 - 51.89, which provide for notice and hearing. O f course, after a passport is no longer o f any evidentiary use but prior to any determination by the Secre­ tary, an individual may seek return of a passport (as in the case o f all evidence) by initiating a ‘“ possessory action to reclaim that which is wrongfully withheld.’” Warden v H ayden, 387 U.S. at 308 (quoting Land v Dollar, 330 U.S. 7 3 1 ,7 3 8 (1947)). 62 that the passport of an individual found to be importing drugs may be seized as the instrumentality or evidence of a federal crime. Nor does the proposal give rise to a valid due process objection or an objection based on the freedom of in­ ternational travel. C harles J. C o o per Assistant Attorney General Office o f Legal Counsel 63

Write a legal research memo on the following topic.

Investigative Authority of the General Accounting Office T he G eneral A ccounting Office lacks statutory authority to review the E xecutive’s discharge o f its constitutional foreign policy responsibilities. G A O is precluded by the Intelligence O versight Act from access to intelligence inform ation. T he m em orandum also reviews generally the executive privilege principles that apply in the contexts o f intelligence, law enforcem ent, and deliberative process inform ation. August 16, 1988 M em o ran d u m O p in io n N a t io n a l fo r the E x e c u t iv e S e c r e t a r y S e c u r it y C o u n c i l Introduction and Summary This memorandum is in response to your request for the opinion of this Office on whether, or to what extent, the Administration has a legal basis for declining to cooperate with the pending General Accounting Office (“GAO”) investigation concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its June 23,1988 letter to the National Security Council, GAO described the nature and purpose of the investigation: In order to evaluate whether “information about illegal activities by high level officials of other nations may not be adequately considered in U.S. foreign policy decisions . . . , the General Accounting Office is undertaking an initial case study of how information about General Noriega was developed by various government agencies, and what role such information played in policy decisions regarding Panama.” As stated in the National Security Council’s response to GAO of July 13,1988, representatives of GAO have made it clear that GAO’s “three areas of interest [are] intelligence files, law enforce­ ment files, and the deliberative process of the Executive branch, including inter­ nal communications and deliberations leading to Executive branch actions taken pursuant to the President’s constitutional authority.” Specifically, you have asked this Office to advise you as to whether the GAO investigation is within GAO’s statutory authority; whether there are statutory or constitutional grounds for denying GA O ’s request to the extent it is directed specifically at intelligence information, at law enforcement information, or at de­ liberative process information; and whether there are other grounds for denying GAO’s request in whole or in part. As explained below, we conclude that on the present record the GAO investigation is beyond GAO’s statutory investigative 171 authority.1 Because of this conclusion it is unnecessary to address any constitu­ tional basis for challenging GAO’s authority to conduct the investigation. In ad­ dition, we are unable to evaluate the strength of any constitutional objection to providing particular information because specific information requests have not yet been made. As a matter of general guidance, however, we outline the consti­ tutional principles which would be applied in evaluating whether particular in­ formation can be withheld. I. Authority to Conduct the Investigation A. G AO ’s Investigative Authority 1. Statutory Limitations G A O ’s investigative authority is set forth in subchapter II of chapter 7 of title 31 o f the U.S. Code. Except for section 7 17(b), the various grants of authority in subchapter II are limited to auditing the finances of government agencies and are thus inadequate bases for the GAO Noriega investigation, which clearly goes well beyond a financial audit. See 31 U.S.C. §§ 711-715. Accordingly, GAO must base this investigation on its authority in section 717(b) to “evaluate the results of a program or activity the Government carries out under existing law.” 2 Op. O.L.C. 415,420 (1978) (emphasis added) (where a GAO investigation goes be­ yond fiscal matters, GAO’s authority must be based on section 204(a), the sub­ stantially identical predecessor version of section 717(b)). We believe as a matter of statutory construction that the phrase “program or activity . . . under existing law ” must refer only to activities carried out pursuant to statute, and not activities carried out pursuant to the Executive’s discharge of its own constitutional responsibilities.2 The juxtaposition of “program or activ­ ity” with “existing law” strongly suggests an intent to refer to statutory respon­ sibilities. Moreover, the use of the qualifier “existing” appears to suggest that the laws at issue are statutes that m ay lapse rather than constitutional authorities of the President, which are of greater permanence. Finally, the legislative history of section 717(b) confirms that Congress’ focus of concern was the oversight of its legislative programs: “It is intended that in performing [evaluations under sec­ tion 7 17(b)], the Comptroller General shall review and analyze Government pro­ gram results in a manner which will assist the Congress to determine whether those programs and activities are achieving the objectives of the law.” H.R. Rep. No. 1215,91st Cong., 2d Sess. 82 (1970). Nothing in the legislative history man­ 1 M oreover, in addition to G A O ’s lack o f statutory authority to pursue this investigation, we believe that the In­ telligence Oversight A ct for Fiscal Year 1981, Pub. L. No. 9 6-450, § 407,94 Stat. 1975, 1981 (1980), extinguishes w hatever authority GAO might otherwise possess in gaining access to intelligence information 2 The views we express here concerning the limitations on G A O ’s investigative authority under section 717(b) are not novel. In 1978, the O ffice opined that G A O ’s authonty under the similarly worded predecessor to 717(b) did not extend to the discharge o f the President's constitutional, as opposed to statutory, responsibilities. 2 Op. O.L.C. 415, 420 (1978) (“ [T]he appointment o f officers o f the United States by the President by and with the ad­ vice o f the Senate does not constitute a G overnment program or activity carried out under existing law . . . . ”). 172 ifests any congressional intent to extend GAO’s investigative authority beyond statutory programs into the Executive’s discharge of its constitutional responsi­ bilities. See S. Rep. No. 924, 93d Cong., 2d Sess. 72 (1974); S. Rep. No. 202, 91st Cong., 1st Sess. (1969); H.R. Rep. No. 1215, supra, at 18, 34, 81-84; 116 Cong. Rec. 24,597 (1970). 2. GAO Has Not Justified its Investigation Under Section 717(b) We conclude on the record before us that GAO has not established that it has authority under section 717(b) to pursue this investigation. The subject of the in­ vestigation according to GAO is foreign policymaking, a subject matter which is generally within the purview of the President’s power under Article II of the Con­ stitution. GAO has failed to assert any interest in evaluating the results of any specific statutory program or activity that may relate to foreign policy. As this Office has consistently observed,3 Section 1 of Article II confers on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitu­ tion permits Congress to impose by exercising one of its enumerated powers. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Specifically, the President’s constitutional authority includes the authority to ne­ gotiate with foreign nations, to articulate the foreign policy of the United States, to carry out diplomatic and intelligence missions, and to protect the lives of Amer­ icans abroad. Id. Of course, pursuant to its own substantial authority under the Commerce Clause and its exclusive power of appropriation, Congress has enacted statutes that relate to the foreign policy of the United States. For instance, Congress has appropriated funds for foreign assistance and enacted statutes regulating arms sales to foreign governments. If GAO were to express a specific interest in ma­ terials relating to such statutes, there would be reasonable and legitimate ques­ tions as to which materials were within the scope of G AO’s section 717(b) au­ thority, and which were not. The request before us, however, does not present these close questions. The GAO letter of June 23,1988 makes it clear that foreign policymaking is the sub­ ject of the GAO investigation, and it provides no basis for concluding that GAO is interested in reviewing Executive foreign policymaking pursuant to statutory authority. The GAO letter states that the GAO investigation is premised on a con­ cern that “information about illegal activities by high level officials of other na­ tions may not be adequately considered in U.S. foreign policy decisions” and that it is directed at learning “what role [information about General Noriega] played in policy decisions regarding Panama.” The GAO letter thus demonstrates an in­ 3 See, e g , Memorandum for Judith H. Bello, General Counsel, Office of the United States Trade Representa­ tive, from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re The President's Authority to Terminate the International Express M ail Agreement With Argentina Without the Consent o f the Postal Service (June 2, 1988). 173 terest in our “diplomatic” or “national security” foreign relations with Panama and General Noriega, and provides no basis for concluding that it relates to ac­ tivities undertaken by the Executive under any specific statute. We therefore conclude based on the nature of the GAO request that the sub­ ject of the GAO investigation is the Executive’s discharge of its constitutional foreign policy responsibilities, not its statutory responsibilities. The subject is thus not “a program or activity the Government carries our under existing law,” and it is beyond GAO’s authority under 31 U.S.C. § 717(b). Accordingly, unless this request is tailored to inquire specifically about a program or activity carried out under existing statutory law, we believe there is no obligation to grant GAO access to executive branch agencies for purposes of conducting this investiga­ tion. B. Intelligence Oversight In addition to the infirmity in GAO’s statutory authority to pursue this inves­ tigation, we believe that GAO is specifically precluded by statute from access to intelligence information. In establishing by law the oversight relationship be­ tween the intelligence committees and the executive branch, Congress indicated that such oversight would be the exclusive means for Congress to gain access to confidential intelligence information in the possession of the executive branch.4 This intelligence oversight system has been codified at 50 U.S.C. § 413. That section sets forth requirements for the Director of Central Intelligence, the heads of all other federal agencies involved in intelligence activities, and the President to inform the Congress through the intelligence committees (and in some cir­ cumstances the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate) of intelligence activities. The legislative history of section 413 makes it clear that both the legislative and executive branches believed they were establishing a comprehensive scheme for congressional oversight of intelligence activities that would constitute the ex­ clusive means of congressional oversight. As President Carter stated when he signed the section into law, it establishes, for the first time in statute, a comprehensive system for congressional oversight of intelligence activities The over­ sight legislation that was passed ... codifies the current practice 4 As a general matter, intelligence gathering is often viewed as a form of diplomatic activity that is within the President’s Article n powers. As Professor Louis Henkin has noted, “[t]he gathering of information is a principal purpose of sending ambassadors and maintaining diplomatic relations, an exclusive Presidential power. It is only a small extension to conclude that gathering information by any means is part of the President’s ‘eyes and ears’ function. There is, therefore, a strong case for presidential authonty to obtain intelligence not only through our em­ bassies but also through our agents representing the Executive . . . . ” Letter from Louis Henkin to Representative Louis Stokes, March 31, 1987, reprinted in HM. 1013, H.R. 1371, and Other Proposals Which Address the Issue o f Affording Prior Notice of Covert Actions to Congress: Hearings Before the Subcomm on Legislation o f the House Permanent Select Comm, on Intelligence, 100th Cong., 1st Sess. 221 (1987). 174 and relationship that has developed between this administration and the Senate and House intelligence committees over the past 3 years.5 Senator Huddleston, sponsor of the floor amendment containing the version of section 413 that was enacted into law, emphasized upon the amendment’s in­ troduction the comprehensive and exclusive nature of the scheme being estab­ lished: “this amendment is identical to Senate bill 2284 which the Senate passed by a vote of 89 to 1 on June 3 of this year. It is a bill that establishes the con­ gressional oversight procedures dealing with our intelligence agencies.”6 Sena­ tor Huddleston also agreed, in a floor colloquy with Senator Javits on S. 2284, with the following statement by Senator Javits: 1 agree thoroughly with the need for simplifying [the practice of the oversight committees]. There are some seven committees here that could have had this wrestling match with the executive . . . . I am satisfied ... that the method we now have chosen ... repre­ sents a fair, effective, and objective way in which to accomplish the results of simplifying the intelligence relations between the President and Congress ... and limiting further the opportunities for misadventure, premature disclosure, and so forth . . . . What we are doing is simply legislating... a new arrangement or modus vivendi for the handling of information and consultations between Congress and the intelligence agencies ... ? The Senate report on S. 2284 also confirms the understanding that congres­ sional oversight with respect to intelligence matters was to be limited to the in­ telligence committees. In the “general statement” that preceded the section by section analysis, the report noted: Out of necessity, intelligence activities are conducted primar­ ily in secret. Because of that necessary secrecy, they are not sub­ ject to public scrutiny and debate as is the case for most foreign policy and defense issues. Therefore, the Congress, through its in­ telligence oversight committees, has especially important duties in overseeing these vital activities by the intelligence agencies of the United States. [50 U.S.C. § 413] is intended to authorize the process by which information concerning intelligence activities 3 16 Weekly Comp. Pres. Doc. 2231 (Oct. 14, 1980). 6 126 Cong. Rec. 17,692 (1980). 7 126 Cong. Rec. 17,692-93 (1980) Senator Moyruhan agreed with the position of Senators Huddleston and Javits that a major purpose of the Intelligence Oversight Act was to reduce the number of congressional commit­ tees that sought intelligence information: “there is a rule of intelligence, which the Senator [Javits] knows well from his wartime experience, which is that you protect sensitive information by compartmentation. The more important that matter is the fewer persons you want to know about i t . . . . ” Id. at 17,694. 175 of the United States is to be shared by the two branches in order to enable them to fulfill their respective duties and obligations to govern intelligence activities within the constitutional framework. The Executive branch and the intelligence oversight committees have developed over the last four years a practical relationship based on comity and mutual understanding, without confronta­ tion. The purpose of [section 413] is to carry this working rela­ tionship forward into statute.8 Based on the evidence of intent on the part of both the legislative and execu­ tive branches that oversight by the intelligence committees would be the exclu­ sive method of congressional oversight concerning intelligence information, we conclude that 50 U.S.C. § 413 stands as statutory authority for the Administra­ tion to decline to provide GAO with access to any intelligence information sought in the Noriega investigation. II. Executive Privilege Should GAO, in response to an appropriate direction from Congress, subse­ quently undertake an investigation properly related to its statutory authority, it would then be necessary to review established principles concerning the main­ tenance of confidentiality with respect to certain executive branch information. Congressional investigations normally do not pose this problem to the degree suggested by the pending GAO investigation because they are properly tailored to address non- confidential subjects. Disturbingly, and in contrast, the type of information in which GAO expressed interest in its letter of June 23, 1988 sug­ gests a desire to review confidential material generally not available outside the executive branch, such as intelligence, law enforcement, and deliberative process information.9 Since GAO has not yet made any specific requests, we cannot analyze the case for withholding any particular document or information. What we do below is summarize briefly the general executive privilege principles that apply in the in­ dividual contexts of intelligence, law enforcement, and deliberative process in­ formation. A. Protection of Intelligence Information In the hierarchy of executive privilege, the “protection of national security” constitutes the strongest interest that can be asserted by the President and one to 8 S Rep. No. 730, 96th Cong., 2d Sess. 5 (1980) (emphasis added) More specifically, the Senate report stated that “[t]his amendment repeals the congressional reporting requirement of the Hughes-Ryan Amendment of 1974 . . . The effect is to limit reporting to the two intelligence oversight committees, as compared with the seven com­ mittees that now receive such reports . . . ” Id at 5. 9 This subject is usually discussed in terms of “executive privilege,” and we will use that convention here. The question, however, is not strictly speaking just one of executive privilege. The pnvdege itself need not be claimed formally vis-a-vis Congress except m response to a lawful subpoena 176 which the courts have traditionally shown the utmost deference. In United States v. Nixon, for instance, the Court contrasted President Nixon’s claim of executive privilege based on the Executive’s general interest in confidentiality with a claim based on the President’s national security responsibilities: [President Nixon] does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the Courts have traditionally shown the utmost deference to Presidential responsibilities. 418 U.S. 683,710(1974) (emphasis added). B. Protection of Law Enforcement Information With respect to open law enforcement files, it has been the policy of the ex­ ecutive branch throughout our Nation’s history to protect these files from any breach of confidentiality, except in extraordinary circumstances. Attorney Gen­ eral Robert H. Jackson well articulated the basic position: It is the position of this Department, restated now with the ap­ proval of and at the direction of the President, that all investiga­ tive reports are confidential documents of the executive depart­ ment of the Government, to aid in the duty laid upon the President by the Constitution to “take care that the Laws be faithfully exe­ cuted,” and that congressional or public access to them would not be in the public interest. Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospec­ tive defendant, could have no greater help than to know how much or how little information that Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. 40 Op. Att’y Gen. 45, 46 (1941). There are, however, circumstances in which the Department of Justice may decide to disclose to Congress information about prosecutorial decisions. This is particularly true where an investigation has been closed without further prose­ cution. In such a situation concerns about real or perceived congressional inter­ ference with an investigation, and about the effects of undue pretrial publicity on a jury, would disappear. Still, extreme caution must be applied whenever the dis­ closure of such records is contemplated. Much of the information in a closed criminal enforcement file such as unpublished details of allegations against par­ 177 ticular individuals and details that would reveal confidential sources and inves­ tigative techniques and methods would continue to merit protection. C. Protection of Deliberative Process Information The Constitution gives the President the power to protect the confidentiality of deliberations within the executive branch. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 446 455 (1977); United States v. Nixon, 418 U.S. at 708. This is independent of the President’s power over foreign affairs or national se­ curity, or law enforcement; it is rooted instead in “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Pres­ idential decisionmaking.” Id. at 708. The Supreme Court has held that, for this reason, communications among the President and his advisers enjoy “a pre­ sumptive privilege” against disclosure in court. Id. The reasons for this privilege, the Court said in United States v. Nixon, are “plain.” “Human experience teaches that those who expect public dissemina­ tion of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Id. at 705. Often, an advisor’s remarks can be fully understood only in the context of a particular debate and of the positions others have taken. Advisors change their views, or make mistakes which others correct; this is indeed the purpose of internal debate. The result is that advisors are likely to be inhibited if they must anticipate that their remarks will be disclosed to others, not party to the debate, who may misunderstand the significance of a particular statement or discussion taken out of context. Some advisors may hesitate out of self interest to make remarks that might later be used against their colleagues or superiors. As the Supreme Court has stated, “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making de­ cisions and to do so in a way many would be unwilling to express except pri­ vately.” Id. at 708. These reasons for the constitutional privilege have at least as much force when it is Congress, instead of a court, that is seeking information.10The United States Court of Appeals for the District of Columbia Circuit has explicitly held that the privilege protects presidential communications against congressional in­ quiries." 10 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations against Congress to some degree. See United States v Nixon, 418 U S. at 712 n.19. Moreover, in Nixon v. Admin­ istrator o f Gen. Servs., 433 U.S. 425 (1977), the Court held that the constitutional privilege protects executive branch deliberations from disclosure to members of the same branch in a later administration; the Court rejected the specific claim of privilege in that case not because the privilege was inapplicable but because the intrusion was limited and the interests justifying the intrusion were strong and nearly unique. See id. at 446-55. 11 During the Watergate investigation the court of appeals rejected a Senate committee’s efforts to obtain tape recordings of conversations in President Nixon’s offices The court held that the tapes were constitutionally privi­ leged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir 1974) (en banc). The court held that the com­ mittee was not entitled to the recordings unless it showed that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions ” Id at 731 (emphasis added). 178 D. Accommodation with Congress 1. Governing Principles Because a claim of executive privilege is not absolute, the executive branch has a duty to seek to accommodate requests that are within Congress’ legitimate oversight powers. See United States v. AT&T, 567 F.2d 121, 127 130 (D.C. Cir. 1977) (suggesting that, even when a claim of executive privilege rests on national security grounds, the Executive does not enjoy clear and absolute discretion to deny legitimate congressional requests for information, but that each of the two branches must attempt to balance and accommodate the legitimate needs of the other).12 This duty of accommodation means that the Executive should attempt to satisfy the requests of Congress as completely as it can without making harm­ ful disclosures. See Memorandum for the Attorney General from John M. Har­ mon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitu­ tional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee (Jan. 13, 1981). In this spirit, the Executive has occasionally offered Congress sum­ maries of documents prepared in such a manner as not to disclose, for example, deliberative aspects that might chill executive branch decisionmaking. See id. at 22-23. The nature of the accommodation required in responding to a congressional request for information depends on the balance of interests between the Execu­ tive and Congress. In order for its interests to be given weight, Congress must ar­ ticulate its need for the particular materials; it must “point[] to . .. specific leg­ islative decisions that cannot responsibly be made without access to materials uniquely contained” in the presumptively privileged documents (or testimony) it has requested, and show that the material “is demonstrably critical to the re­ sponsible fulfillment of the Committee’s functions.” Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d at 731, 733.13 12 It should be emphasized, however, that in United States v. AT&T the information Congress sought related to wiretaps on American citizens placing telephone calls from the United States. Although these wiretaps were justi­ fied on national security grounds and the President, in turn, could assert national security as a basis for withhold­ ing the information, Congress clearly had a substantial interest in this subject matter, because the wiretaps impli­ cated the individual rights of American citizens. Accordingly, we believe that a court may view the relative weights of executive and legislative interests differently when the information sought relates directly to the conduct of for­ eign relations rather than to the rights of American citizens. 13 In Senate Select Committee, for example, the court held that the committee had not made a sufficient show­ ing of need for copies of the presidential tape recordings, given that the President had already released transcripts of the recordings. The committee argued that it needed the tape recordings “in order to verify the accuracy o f’ the transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the inflection and tone of voice of the speakers. But the court answered that in order to legislate a committee of Con­ gress seldom needs a “precise reconstruction of past events.” 498 F.2d at 732. “The Committee has . . . shown no more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the transcripts may contain.” Id. at 733. For this reason, the court stated, “the need demon­ strated by the Select Committee .. is too attenuated and too tangential to its functions” to override the President’s constitutional privilege Id 179 2. Procedural Issues Only rarely do congressional requests for information result in a subpoena of an executive branch official or in other congressional action. In most cases the informal process of negotiation and accommodation recognized by the courts, and mandated for this Administration by President Reagan,14 is sufficient to re­ solve any dispute. On occasion, however, the process breaks down, and a sub­ poena is issued by a congressional committee or subcommittee.15 At that point, it would be necessary to consider asking the President to assert executive privi­ lege. Under the terms of the President’s Memorandum, executive privilege can­ not be asserted vis-a-vis Congress without specific authorization by the Presi­ dent, based on recommendations made to him by the concerned department head, the Attorney General, and the Counsel to the President. Conclusion We believe that there are statutory grounds which preclude GAO’s present re­ quest for access to executive branch agencies for the purposes of conducting the investigation described in its letter of June 23, 1988. Should GAO’s request be reformulated in a manner which properly relates it to a congressional interest within the terms of 31 U.S.C. § 717(b) and which comports with the statutory re­ strictions on access to intelligence information found in 50 U.S.C. § 413, it will be appropriate at that time to consider the application of additional lawful au­ thority to withhold particular national security, intelligence, law enforcement, or deliberative process information. This Office is available for consultation with respect to requests for particular documents or information. D o u g l a s W . K m ie c Acting Assistant Attorney General Office of Legal Counsel 14 President Reagan’s November 4,1982 Memorandum for the Heads of Executive Departments and Agencies on “Procedures Governing Responses to Congressional Requests for Information” states: The policy of this Administration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch . [E]xecutive pnvilege will be asserted only in the most compelling circumstances, and only after care­ ful review demonstrates that assertion of the privilege is necessary Historically, good faith negotia­ tions between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving con­ flicts between the Branches. 15 In the current context, such a subpoena could only be issued after GAO had reported to its congressional re­ quester that it was unable to obtain the information from the executive branch. Before requesting that a congres­ sional committee issue a subpoena, GAO might attempt to enforce its request for information pursuant to the judi­ cial enforcement mechanism authorized under 3 1 U S C §716. Such a course of action could be successfully resisted by the executive branch without a claim of executive pnvilege, however, because judicial enforcement is precluded whenever the Director of the Office of Management and Budget or the President certify that the information could be withheld under exemptions (b)(5) (information withholdable in litigation) or (b)(7) (law enforcement informa­ tion) of the Freedom of Information Act (5 U.S.C. § 552(b)(5), (b)(7)) and ‘‘disclosure reasonably could be expected to impair substantially the operations of the Government." 31 U S C § 716(d)(1)(C). Upon such a certification, GAO would presumably refer enforcement to the congressional committee. 180

Write a legal research memo on the following topic.

Investigative Authority of the General Accounting Office T he G eneral A ccounting Office lacks statutory authority to review the E xecutive’s discharge o f its constitutional foreign policy responsibilities. G A O is precluded by the Intelligence O versight Act from access to intelligence inform ation. T he m em orandum also reviews generally the executive privilege principles that apply in the contexts o f intelligence, law enforcem ent, and deliberative process inform ation. August 16, 1988 M em o ran d u m O p in io n N a t io n a l fo r the E x e c u t iv e S e c r e t a r y S e c u r it y C o u n c i l Introduction and Summary This memorandum is in response to your request for the opinion of this Office on whether, or to what extent, the Administration has a legal basis for declining to cooperate with the pending General Accounting Office (“GAO”) investigation concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its June 23,1988 letter to the National Security Council, GAO described the nature and purpose of the investigation: In order to evaluate whether “information about illegal activities by high level officials of other nations may not be adequately considered in U.S. foreign policy decisions . . . , the General Accounting Office is undertaking an initial case study of how information about General Noriega was developed by various government agencies, and what role such information played in policy decisions regarding Panama.” As stated in the National Security Council’s response to GAO of July 13,1988, representatives of GAO have made it clear that GAO’s “three areas of interest [are] intelligence files, law enforce­ ment files, and the deliberative process of the Executive branch, including inter­ nal communications and deliberations leading to Executive branch actions taken pursuant to the President’s constitutional authority.” Specifically, you have asked this Office to advise you as to whether the GAO investigation is within GAO’s statutory authority; whether there are statutory or constitutional grounds for denying GA O ’s request to the extent it is directed specifically at intelligence information, at law enforcement information, or at de­ liberative process information; and whether there are other grounds for denying GAO’s request in whole or in part. As explained below, we conclude that on the present record the GAO investigation is beyond GAO’s statutory investigative 171 authority.1 Because of this conclusion it is unnecessary to address any constitu­ tional basis for challenging GAO’s authority to conduct the investigation. In ad­ dition, we are unable to evaluate the strength of any constitutional objection to providing particular information because specific information requests have not yet been made. As a matter of general guidance, however, we outline the consti­ tutional principles which would be applied in evaluating whether particular in­ formation can be withheld. I. Authority to Conduct the Investigation A. G AO ’s Investigative Authority 1. Statutory Limitations G A O ’s investigative authority is set forth in subchapter II of chapter 7 of title 31 o f the U.S. Code. Except for section 7 17(b), the various grants of authority in subchapter II are limited to auditing the finances of government agencies and are thus inadequate bases for the GAO Noriega investigation, which clearly goes well beyond a financial audit. See 31 U.S.C. §§ 711-715. Accordingly, GAO must base this investigation on its authority in section 717(b) to “evaluate the results of a program or activity the Government carries out under existing law.” 2 Op. O.L.C. 415,420 (1978) (emphasis added) (where a GAO investigation goes be­ yond fiscal matters, GAO’s authority must be based on section 204(a), the sub­ stantially identical predecessor version of section 717(b)). We believe as a matter of statutory construction that the phrase “program or activity . . . under existing law ” must refer only to activities carried out pursuant to statute, and not activities carried out pursuant to the Executive’s discharge of its own constitutional responsibilities.2 The juxtaposition of “program or activ­ ity” with “existing law” strongly suggests an intent to refer to statutory respon­ sibilities. Moreover, the use of the qualifier “existing” appears to suggest that the laws at issue are statutes that m ay lapse rather than constitutional authorities of the President, which are of greater permanence. Finally, the legislative history of section 717(b) confirms that Congress’ focus of concern was the oversight of its legislative programs: “It is intended that in performing [evaluations under sec­ tion 7 17(b)], the Comptroller General shall review and analyze Government pro­ gram results in a manner which will assist the Congress to determine whether those programs and activities are achieving the objectives of the law.” H.R. Rep. No. 1215,91st Cong., 2d Sess. 82 (1970). Nothing in the legislative history man­ 1 M oreover, in addition to G A O ’s lack o f statutory authority to pursue this investigation, we believe that the In­ telligence Oversight A ct for Fiscal Year 1981, Pub. L. No. 9 6-450, § 407,94 Stat. 1975, 1981 (1980), extinguishes w hatever authority GAO might otherwise possess in gaining access to intelligence information 2 The views we express here concerning the limitations on G A O ’s investigative authority under section 717(b) are not novel. In 1978, the O ffice opined that G A O ’s authonty under the similarly worded predecessor to 717(b) did not extend to the discharge o f the President's constitutional, as opposed to statutory, responsibilities. 2 Op. O.L.C. 415, 420 (1978) (“ [T]he appointment o f officers o f the United States by the President by and with the ad­ vice o f the Senate does not constitute a G overnment program or activity carried out under existing law . . . . ”). 172 ifests any congressional intent to extend GAO’s investigative authority beyond statutory programs into the Executive’s discharge of its constitutional responsi­ bilities. See S. Rep. No. 924, 93d Cong., 2d Sess. 72 (1974); S. Rep. No. 202, 91st Cong., 1st Sess. (1969); H.R. Rep. No. 1215, supra, at 18, 34, 81-84; 116 Cong. Rec. 24,597 (1970). 2. GAO Has Not Justified its Investigation Under Section 717(b) We conclude on the record before us that GAO has not established that it has authority under section 717(b) to pursue this investigation. The subject of the in­ vestigation according to GAO is foreign policymaking, a subject matter which is generally within the purview of the President’s power under Article II of the Con­ stitution. GAO has failed to assert any interest in evaluating the results of any specific statutory program or activity that may relate to foreign policy. As this Office has consistently observed,3 Section 1 of Article II confers on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitu­ tion permits Congress to impose by exercising one of its enumerated powers. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Specifically, the President’s constitutional authority includes the authority to ne­ gotiate with foreign nations, to articulate the foreign policy of the United States, to carry out diplomatic and intelligence missions, and to protect the lives of Amer­ icans abroad. Id. Of course, pursuant to its own substantial authority under the Commerce Clause and its exclusive power of appropriation, Congress has enacted statutes that relate to the foreign policy of the United States. For instance, Congress has appropriated funds for foreign assistance and enacted statutes regulating arms sales to foreign governments. If GAO were to express a specific interest in ma­ terials relating to such statutes, there would be reasonable and legitimate ques­ tions as to which materials were within the scope of G AO’s section 717(b) au­ thority, and which were not. The request before us, however, does not present these close questions. The GAO letter of June 23,1988 makes it clear that foreign policymaking is the sub­ ject of the GAO investigation, and it provides no basis for concluding that GAO is interested in reviewing Executive foreign policymaking pursuant to statutory authority. The GAO letter states that the GAO investigation is premised on a con­ cern that “information about illegal activities by high level officials of other na­ tions may not be adequately considered in U.S. foreign policy decisions” and that it is directed at learning “what role [information about General Noriega] played in policy decisions regarding Panama.” The GAO letter thus demonstrates an in­ 3 See, e g , Memorandum for Judith H. Bello, General Counsel, Office of the United States Trade Representa­ tive, from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re The President's Authority to Terminate the International Express M ail Agreement With Argentina Without the Consent o f the Postal Service (June 2, 1988). 173 terest in our “diplomatic” or “national security” foreign relations with Panama and General Noriega, and provides no basis for concluding that it relates to ac­ tivities undertaken by the Executive under any specific statute. We therefore conclude based on the nature of the GAO request that the sub­ ject of the GAO investigation is the Executive’s discharge of its constitutional foreign policy responsibilities, not its statutory responsibilities. The subject is thus not “a program or activity the Government carries our under existing law,” and it is beyond GAO’s authority under 31 U.S.C. § 717(b). Accordingly, unless this request is tailored to inquire specifically about a program or activity carried out under existing statutory law, we believe there is no obligation to grant GAO access to executive branch agencies for purposes of conducting this investiga­ tion. B. Intelligence Oversight In addition to the infirmity in GAO’s statutory authority to pursue this inves­ tigation, we believe that GAO is specifically precluded by statute from access to intelligence information. In establishing by law the oversight relationship be­ tween the intelligence committees and the executive branch, Congress indicated that such oversight would be the exclusive means for Congress to gain access to confidential intelligence information in the possession of the executive branch.4 This intelligence oversight system has been codified at 50 U.S.C. § 413. That section sets forth requirements for the Director of Central Intelligence, the heads of all other federal agencies involved in intelligence activities, and the President to inform the Congress through the intelligence committees (and in some cir­ cumstances the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate) of intelligence activities. The legislative history of section 413 makes it clear that both the legislative and executive branches believed they were establishing a comprehensive scheme for congressional oversight of intelligence activities that would constitute the ex­ clusive means of congressional oversight. As President Carter stated when he signed the section into law, it establishes, for the first time in statute, a comprehensive system for congressional oversight of intelligence activities The over­ sight legislation that was passed ... codifies the current practice 4 As a general matter, intelligence gathering is often viewed as a form of diplomatic activity that is within the President’s Article n powers. As Professor Louis Henkin has noted, “[t]he gathering of information is a principal purpose of sending ambassadors and maintaining diplomatic relations, an exclusive Presidential power. It is only a small extension to conclude that gathering information by any means is part of the President’s ‘eyes and ears’ function. There is, therefore, a strong case for presidential authonty to obtain intelligence not only through our em­ bassies but also through our agents representing the Executive . . . . ” Letter from Louis Henkin to Representative Louis Stokes, March 31, 1987, reprinted in HM. 1013, H.R. 1371, and Other Proposals Which Address the Issue o f Affording Prior Notice of Covert Actions to Congress: Hearings Before the Subcomm on Legislation o f the House Permanent Select Comm, on Intelligence, 100th Cong., 1st Sess. 221 (1987). 174 and relationship that has developed between this administration and the Senate and House intelligence committees over the past 3 years.5 Senator Huddleston, sponsor of the floor amendment containing the version of section 413 that was enacted into law, emphasized upon the amendment’s in­ troduction the comprehensive and exclusive nature of the scheme being estab­ lished: “this amendment is identical to Senate bill 2284 which the Senate passed by a vote of 89 to 1 on June 3 of this year. It is a bill that establishes the con­ gressional oversight procedures dealing with our intelligence agencies.”6 Sena­ tor Huddleston also agreed, in a floor colloquy with Senator Javits on S. 2284, with the following statement by Senator Javits: 1 agree thoroughly with the need for simplifying [the practice of the oversight committees]. There are some seven committees here that could have had this wrestling match with the executive . . . . I am satisfied ... that the method we now have chosen ... repre­ sents a fair, effective, and objective way in which to accomplish the results of simplifying the intelligence relations between the President and Congress ... and limiting further the opportunities for misadventure, premature disclosure, and so forth . . . . What we are doing is simply legislating... a new arrangement or modus vivendi for the handling of information and consultations between Congress and the intelligence agencies ... ? The Senate report on S. 2284 also confirms the understanding that congres­ sional oversight with respect to intelligence matters was to be limited to the in­ telligence committees. In the “general statement” that preceded the section by section analysis, the report noted: Out of necessity, intelligence activities are conducted primar­ ily in secret. Because of that necessary secrecy, they are not sub­ ject to public scrutiny and debate as is the case for most foreign policy and defense issues. Therefore, the Congress, through its in­ telligence oversight committees, has especially important duties in overseeing these vital activities by the intelligence agencies of the United States. [50 U.S.C. § 413] is intended to authorize the process by which information concerning intelligence activities 3 16 Weekly Comp. Pres. Doc. 2231 (Oct. 14, 1980). 6 126 Cong. Rec. 17,692 (1980). 7 126 Cong. Rec. 17,692-93 (1980) Senator Moyruhan agreed with the position of Senators Huddleston and Javits that a major purpose of the Intelligence Oversight Act was to reduce the number of congressional commit­ tees that sought intelligence information: “there is a rule of intelligence, which the Senator [Javits] knows well from his wartime experience, which is that you protect sensitive information by compartmentation. The more important that matter is the fewer persons you want to know about i t . . . . ” Id. at 17,694. 175 of the United States is to be shared by the two branches in order to enable them to fulfill their respective duties and obligations to govern intelligence activities within the constitutional framework. The Executive branch and the intelligence oversight committees have developed over the last four years a practical relationship based on comity and mutual understanding, without confronta­ tion. The purpose of [section 413] is to carry this working rela­ tionship forward into statute.8 Based on the evidence of intent on the part of both the legislative and execu­ tive branches that oversight by the intelligence committees would be the exclu­ sive method of congressional oversight concerning intelligence information, we conclude that 50 U.S.C. § 413 stands as statutory authority for the Administra­ tion to decline to provide GAO with access to any intelligence information sought in the Noriega investigation. II. Executive Privilege Should GAO, in response to an appropriate direction from Congress, subse­ quently undertake an investigation properly related to its statutory authority, it would then be necessary to review established principles concerning the main­ tenance of confidentiality with respect to certain executive branch information. Congressional investigations normally do not pose this problem to the degree suggested by the pending GAO investigation because they are properly tailored to address non- confidential subjects. Disturbingly, and in contrast, the type of information in which GAO expressed interest in its letter of June 23, 1988 sug­ gests a desire to review confidential material generally not available outside the executive branch, such as intelligence, law enforcement, and deliberative process information.9 Since GAO has not yet made any specific requests, we cannot analyze the case for withholding any particular document or information. What we do below is summarize briefly the general executive privilege principles that apply in the in­ dividual contexts of intelligence, law enforcement, and deliberative process in­ formation. A. Protection of Intelligence Information In the hierarchy of executive privilege, the “protection of national security” constitutes the strongest interest that can be asserted by the President and one to 8 S Rep. No. 730, 96th Cong., 2d Sess. 5 (1980) (emphasis added) More specifically, the Senate report stated that “[t]his amendment repeals the congressional reporting requirement of the Hughes-Ryan Amendment of 1974 . . . The effect is to limit reporting to the two intelligence oversight committees, as compared with the seven com­ mittees that now receive such reports . . . ” Id at 5. 9 This subject is usually discussed in terms of “executive privilege,” and we will use that convention here. The question, however, is not strictly speaking just one of executive privilege. The pnvdege itself need not be claimed formally vis-a-vis Congress except m response to a lawful subpoena 176 which the courts have traditionally shown the utmost deference. In United States v. Nixon, for instance, the Court contrasted President Nixon’s claim of executive privilege based on the Executive’s general interest in confidentiality with a claim based on the President’s national security responsibilities: [President Nixon] does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the Courts have traditionally shown the utmost deference to Presidential responsibilities. 418 U.S. 683,710(1974) (emphasis added). B. Protection of Law Enforcement Information With respect to open law enforcement files, it has been the policy of the ex­ ecutive branch throughout our Nation’s history to protect these files from any breach of confidentiality, except in extraordinary circumstances. Attorney Gen­ eral Robert H. Jackson well articulated the basic position: It is the position of this Department, restated now with the ap­ proval of and at the direction of the President, that all investiga­ tive reports are confidential documents of the executive depart­ ment of the Government, to aid in the duty laid upon the President by the Constitution to “take care that the Laws be faithfully exe­ cuted,” and that congressional or public access to them would not be in the public interest. Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospec­ tive defendant, could have no greater help than to know how much or how little information that Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. 40 Op. Att’y Gen. 45, 46 (1941). There are, however, circumstances in which the Department of Justice may decide to disclose to Congress information about prosecutorial decisions. This is particularly true where an investigation has been closed without further prose­ cution. In such a situation concerns about real or perceived congressional inter­ ference with an investigation, and about the effects of undue pretrial publicity on a jury, would disappear. Still, extreme caution must be applied whenever the dis­ closure of such records is contemplated. Much of the information in a closed criminal enforcement file such as unpublished details of allegations against par­ 177 ticular individuals and details that would reveal confidential sources and inves­ tigative techniques and methods would continue to merit protection. C. Protection of Deliberative Process Information The Constitution gives the President the power to protect the confidentiality of deliberations within the executive branch. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 446 455 (1977); United States v. Nixon, 418 U.S. at 708. This is independent of the President’s power over foreign affairs or national se­ curity, or law enforcement; it is rooted instead in “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Pres­ idential decisionmaking.” Id. at 708. The Supreme Court has held that, for this reason, communications among the President and his advisers enjoy “a pre­ sumptive privilege” against disclosure in court. Id. The reasons for this privilege, the Court said in United States v. Nixon, are “plain.” “Human experience teaches that those who expect public dissemina­ tion of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Id. at 705. Often, an advisor’s remarks can be fully understood only in the context of a particular debate and of the positions others have taken. Advisors change their views, or make mistakes which others correct; this is indeed the purpose of internal debate. The result is that advisors are likely to be inhibited if they must anticipate that their remarks will be disclosed to others, not party to the debate, who may misunderstand the significance of a particular statement or discussion taken out of context. Some advisors may hesitate out of self interest to make remarks that might later be used against their colleagues or superiors. As the Supreme Court has stated, “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making de­ cisions and to do so in a way many would be unwilling to express except pri­ vately.” Id. at 708. These reasons for the constitutional privilege have at least as much force when it is Congress, instead of a court, that is seeking information.10The United States Court of Appeals for the District of Columbia Circuit has explicitly held that the privilege protects presidential communications against congressional in­ quiries." 10 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations against Congress to some degree. See United States v Nixon, 418 U S. at 712 n.19. Moreover, in Nixon v. Admin­ istrator o f Gen. Servs., 433 U.S. 425 (1977), the Court held that the constitutional privilege protects executive branch deliberations from disclosure to members of the same branch in a later administration; the Court rejected the specific claim of privilege in that case not because the privilege was inapplicable but because the intrusion was limited and the interests justifying the intrusion were strong and nearly unique. See id. at 446-55. 11 During the Watergate investigation the court of appeals rejected a Senate committee’s efforts to obtain tape recordings of conversations in President Nixon’s offices The court held that the tapes were constitutionally privi­ leged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir 1974) (en banc). The court held that the com­ mittee was not entitled to the recordings unless it showed that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions ” Id at 731 (emphasis added). 178 D. Accommodation with Congress 1. Governing Principles Because a claim of executive privilege is not absolute, the executive branch has a duty to seek to accommodate requests that are within Congress’ legitimate oversight powers. See United States v. AT&T, 567 F.2d 121, 127 130 (D.C. Cir. 1977) (suggesting that, even when a claim of executive privilege rests on national security grounds, the Executive does not enjoy clear and absolute discretion to deny legitimate congressional requests for information, but that each of the two branches must attempt to balance and accommodate the legitimate needs of the other).12 This duty of accommodation means that the Executive should attempt to satisfy the requests of Congress as completely as it can without making harm­ ful disclosures. See Memorandum for the Attorney General from John M. Har­ mon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitu­ tional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee (Jan. 13, 1981). In this spirit, the Executive has occasionally offered Congress sum­ maries of documents prepared in such a manner as not to disclose, for example, deliberative aspects that might chill executive branch decisionmaking. See id. at 22-23. The nature of the accommodation required in responding to a congressional request for information depends on the balance of interests between the Execu­ tive and Congress. In order for its interests to be given weight, Congress must ar­ ticulate its need for the particular materials; it must “point[] to . .. specific leg­ islative decisions that cannot responsibly be made without access to materials uniquely contained” in the presumptively privileged documents (or testimony) it has requested, and show that the material “is demonstrably critical to the re­ sponsible fulfillment of the Committee’s functions.” Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d at 731, 733.13 12 It should be emphasized, however, that in United States v. AT&T the information Congress sought related to wiretaps on American citizens placing telephone calls from the United States. Although these wiretaps were justi­ fied on national security grounds and the President, in turn, could assert national security as a basis for withhold­ ing the information, Congress clearly had a substantial interest in this subject matter, because the wiretaps impli­ cated the individual rights of American citizens. Accordingly, we believe that a court may view the relative weights of executive and legislative interests differently when the information sought relates directly to the conduct of for­ eign relations rather than to the rights of American citizens. 13 In Senate Select Committee, for example, the court held that the committee had not made a sufficient show­ ing of need for copies of the presidential tape recordings, given that the President had already released transcripts of the recordings. The committee argued that it needed the tape recordings “in order to verify the accuracy o f’ the transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the inflection and tone of voice of the speakers. But the court answered that in order to legislate a committee of Con­ gress seldom needs a “precise reconstruction of past events.” 498 F.2d at 732. “The Committee has . . . shown no more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the transcripts may contain.” Id. at 733. For this reason, the court stated, “the need demon­ strated by the Select Committee .. is too attenuated and too tangential to its functions” to override the President’s constitutional privilege Id 179 2. Procedural Issues Only rarely do congressional requests for information result in a subpoena of an executive branch official or in other congressional action. In most cases the informal process of negotiation and accommodation recognized by the courts, and mandated for this Administration by President Reagan,14 is sufficient to re­ solve any dispute. On occasion, however, the process breaks down, and a sub­ poena is issued by a congressional committee or subcommittee.15 At that point, it would be necessary to consider asking the President to assert executive privi­ lege. Under the terms of the President’s Memorandum, executive privilege can­ not be asserted vis-a-vis Congress without specific authorization by the Presi­ dent, based on recommendations made to him by the concerned department head, the Attorney General, and the Counsel to the President. Conclusion We believe that there are statutory grounds which preclude GAO’s present re­ quest for access to executive branch agencies for the purposes of conducting the investigation described in its letter of June 23, 1988. Should GAO’s request be reformulated in a manner which properly relates it to a congressional interest within the terms of 31 U.S.C. § 717(b) and which comports with the statutory re­ strictions on access to intelligence information found in 50 U.S.C. § 413, it will be appropriate at that time to consider the application of additional lawful au­ thority to withhold particular national security, intelligence, law enforcement, or deliberative process information. This Office is available for consultation with respect to requests for particular documents or information. D o u g l a s W . K m ie c Acting Assistant Attorney General Office of Legal Counsel 14 President Reagan’s November 4,1982 Memorandum for the Heads of Executive Departments and Agencies on “Procedures Governing Responses to Congressional Requests for Information” states: The policy of this Administration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch . [E]xecutive pnvilege will be asserted only in the most compelling circumstances, and only after care­ ful review demonstrates that assertion of the privilege is necessary Historically, good faith negotia­ tions between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving con­ flicts between the Branches. 15 In the current context, such a subpoena could only be issued after GAO had reported to its congressional re­ quester that it was unable to obtain the information from the executive branch. Before requesting that a congres­ sional committee issue a subpoena, GAO might attempt to enforce its request for information pursuant to the judi­ cial enforcement mechanism authorized under 3 1 U S C §716. Such a course of action could be successfully resisted by the executive branch without a claim of executive pnvilege, however, because judicial enforcement is precluded whenever the Director of the Office of Management and Budget or the President certify that the information could be withheld under exemptions (b)(5) (information withholdable in litigation) or (b)(7) (law enforcement informa­ tion) of the Freedom of Information Act (5 U.S.C. § 552(b)(5), (b)(7)) and ‘‘disclosure reasonably could be expected to impair substantially the operations of the Government." 31 U S C § 716(d)(1)(C). Upon such a certification, GAO would presumably refer enforcement to the congressional committee. 180

Write a legal research memo on the following topic.

Investigative Authority of the General Accounting Office T he G eneral A ccounting Office lacks statutory authority to review the E xecutive’s discharge o f its constitutional foreign policy responsibilities. G A O is precluded by the Intelligence O versight Act from access to intelligence inform ation. T he m em orandum also reviews generally the executive privilege principles that apply in the contexts o f intelligence, law enforcem ent, and deliberative process inform ation. August 16, 1988 M em o ran d u m O p in io n N a t io n a l fo r the E x e c u t iv e S e c r e t a r y S e c u r it y C o u n c i l Introduction and Summary This memorandum is in response to your request for the opinion of this Office on whether, or to what extent, the Administration has a legal basis for declining to cooperate with the pending General Accounting Office (“GAO”) investigation concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its June 23,1988 letter to the National Security Council, GAO described the nature and purpose of the investigation: In order to evaluate whether “information about illegal activities by high level officials of other nations may not be adequately considered in U.S. foreign policy decisions . . . , the General Accounting Office is undertaking an initial case study of how information about General Noriega was developed by various government agencies, and what role such information played in policy decisions regarding Panama.” As stated in the National Security Council’s response to GAO of July 13,1988, representatives of GAO have made it clear that GAO’s “three areas of interest [are] intelligence files, law enforce­ ment files, and the deliberative process of the Executive branch, including inter­ nal communications and deliberations leading to Executive branch actions taken pursuant to the President’s constitutional authority.” Specifically, you have asked this Office to advise you as to whether the GAO investigation is within GAO’s statutory authority; whether there are statutory or constitutional grounds for denying GA O ’s request to the extent it is directed specifically at intelligence information, at law enforcement information, or at de­ liberative process information; and whether there are other grounds for denying GAO’s request in whole or in part. As explained below, we conclude that on the present record the GAO investigation is beyond GAO’s statutory investigative 171 authority.1 Because of this conclusion it is unnecessary to address any constitu­ tional basis for challenging GAO’s authority to conduct the investigation. In ad­ dition, we are unable to evaluate the strength of any constitutional objection to providing particular information because specific information requests have not yet been made. As a matter of general guidance, however, we outline the consti­ tutional principles which would be applied in evaluating whether particular in­ formation can be withheld. I. Authority to Conduct the Investigation A. G AO ’s Investigative Authority 1. Statutory Limitations G A O ’s investigative authority is set forth in subchapter II of chapter 7 of title 31 o f the U.S. Code. Except for section 7 17(b), the various grants of authority in subchapter II are limited to auditing the finances of government agencies and are thus inadequate bases for the GAO Noriega investigation, which clearly goes well beyond a financial audit. See 31 U.S.C. §§ 711-715. Accordingly, GAO must base this investigation on its authority in section 717(b) to “evaluate the results of a program or activity the Government carries out under existing law.” 2 Op. O.L.C. 415,420 (1978) (emphasis added) (where a GAO investigation goes be­ yond fiscal matters, GAO’s authority must be based on section 204(a), the sub­ stantially identical predecessor version of section 717(b)). We believe as a matter of statutory construction that the phrase “program or activity . . . under existing law ” must refer only to activities carried out pursuant to statute, and not activities carried out pursuant to the Executive’s discharge of its own constitutional responsibilities.2 The juxtaposition of “program or activ­ ity” with “existing law” strongly suggests an intent to refer to statutory respon­ sibilities. Moreover, the use of the qualifier “existing” appears to suggest that the laws at issue are statutes that m ay lapse rather than constitutional authorities of the President, which are of greater permanence. Finally, the legislative history of section 717(b) confirms that Congress’ focus of concern was the oversight of its legislative programs: “It is intended that in performing [evaluations under sec­ tion 7 17(b)], the Comptroller General shall review and analyze Government pro­ gram results in a manner which will assist the Congress to determine whether those programs and activities are achieving the objectives of the law.” H.R. Rep. No. 1215,91st Cong., 2d Sess. 82 (1970). Nothing in the legislative history man­ 1 M oreover, in addition to G A O ’s lack o f statutory authority to pursue this investigation, we believe that the In­ telligence Oversight A ct for Fiscal Year 1981, Pub. L. No. 9 6-450, § 407,94 Stat. 1975, 1981 (1980), extinguishes w hatever authority GAO might otherwise possess in gaining access to intelligence information 2 The views we express here concerning the limitations on G A O ’s investigative authority under section 717(b) are not novel. In 1978, the O ffice opined that G A O ’s authonty under the similarly worded predecessor to 717(b) did not extend to the discharge o f the President's constitutional, as opposed to statutory, responsibilities. 2 Op. O.L.C. 415, 420 (1978) (“ [T]he appointment o f officers o f the United States by the President by and with the ad­ vice o f the Senate does not constitute a G overnment program or activity carried out under existing law . . . . ”). 172 ifests any congressional intent to extend GAO’s investigative authority beyond statutory programs into the Executive’s discharge of its constitutional responsi­ bilities. See S. Rep. No. 924, 93d Cong., 2d Sess. 72 (1974); S. Rep. No. 202, 91st Cong., 1st Sess. (1969); H.R. Rep. No. 1215, supra, at 18, 34, 81-84; 116 Cong. Rec. 24,597 (1970). 2. GAO Has Not Justified its Investigation Under Section 717(b) We conclude on the record before us that GAO has not established that it has authority under section 717(b) to pursue this investigation. The subject of the in­ vestigation according to GAO is foreign policymaking, a subject matter which is generally within the purview of the President’s power under Article II of the Con­ stitution. GAO has failed to assert any interest in evaluating the results of any specific statutory program or activity that may relate to foreign policy. As this Office has consistently observed,3 Section 1 of Article II confers on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitu­ tion permits Congress to impose by exercising one of its enumerated powers. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Specifically, the President’s constitutional authority includes the authority to ne­ gotiate with foreign nations, to articulate the foreign policy of the United States, to carry out diplomatic and intelligence missions, and to protect the lives of Amer­ icans abroad. Id. Of course, pursuant to its own substantial authority under the Commerce Clause and its exclusive power of appropriation, Congress has enacted statutes that relate to the foreign policy of the United States. For instance, Congress has appropriated funds for foreign assistance and enacted statutes regulating arms sales to foreign governments. If GAO were to express a specific interest in ma­ terials relating to such statutes, there would be reasonable and legitimate ques­ tions as to which materials were within the scope of G AO’s section 717(b) au­ thority, and which were not. The request before us, however, does not present these close questions. The GAO letter of June 23,1988 makes it clear that foreign policymaking is the sub­ ject of the GAO investigation, and it provides no basis for concluding that GAO is interested in reviewing Executive foreign policymaking pursuant to statutory authority. The GAO letter states that the GAO investigation is premised on a con­ cern that “information about illegal activities by high level officials of other na­ tions may not be adequately considered in U.S. foreign policy decisions” and that it is directed at learning “what role [information about General Noriega] played in policy decisions regarding Panama.” The GAO letter thus demonstrates an in­ 3 See, e g , Memorandum for Judith H. Bello, General Counsel, Office of the United States Trade Representa­ tive, from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re The President's Authority to Terminate the International Express M ail Agreement With Argentina Without the Consent o f the Postal Service (June 2, 1988). 173 terest in our “diplomatic” or “national security” foreign relations with Panama and General Noriega, and provides no basis for concluding that it relates to ac­ tivities undertaken by the Executive under any specific statute. We therefore conclude based on the nature of the GAO request that the sub­ ject of the GAO investigation is the Executive’s discharge of its constitutional foreign policy responsibilities, not its statutory responsibilities. The subject is thus not “a program or activity the Government carries our under existing law,” and it is beyond GAO’s authority under 31 U.S.C. § 717(b). Accordingly, unless this request is tailored to inquire specifically about a program or activity carried out under existing statutory law, we believe there is no obligation to grant GAO access to executive branch agencies for purposes of conducting this investiga­ tion. B. Intelligence Oversight In addition to the infirmity in GAO’s statutory authority to pursue this inves­ tigation, we believe that GAO is specifically precluded by statute from access to intelligence information. In establishing by law the oversight relationship be­ tween the intelligence committees and the executive branch, Congress indicated that such oversight would be the exclusive means for Congress to gain access to confidential intelligence information in the possession of the executive branch.4 This intelligence oversight system has been codified at 50 U.S.C. § 413. That section sets forth requirements for the Director of Central Intelligence, the heads of all other federal agencies involved in intelligence activities, and the President to inform the Congress through the intelligence committees (and in some cir­ cumstances the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate) of intelligence activities. The legislative history of section 413 makes it clear that both the legislative and executive branches believed they were establishing a comprehensive scheme for congressional oversight of intelligence activities that would constitute the ex­ clusive means of congressional oversight. As President Carter stated when he signed the section into law, it establishes, for the first time in statute, a comprehensive system for congressional oversight of intelligence activities The over­ sight legislation that was passed ... codifies the current practice 4 As a general matter, intelligence gathering is often viewed as a form of diplomatic activity that is within the President’s Article n powers. As Professor Louis Henkin has noted, “[t]he gathering of information is a principal purpose of sending ambassadors and maintaining diplomatic relations, an exclusive Presidential power. It is only a small extension to conclude that gathering information by any means is part of the President’s ‘eyes and ears’ function. There is, therefore, a strong case for presidential authonty to obtain intelligence not only through our em­ bassies but also through our agents representing the Executive . . . . ” Letter from Louis Henkin to Representative Louis Stokes, March 31, 1987, reprinted in HM. 1013, H.R. 1371, and Other Proposals Which Address the Issue o f Affording Prior Notice of Covert Actions to Congress: Hearings Before the Subcomm on Legislation o f the House Permanent Select Comm, on Intelligence, 100th Cong., 1st Sess. 221 (1987). 174 and relationship that has developed between this administration and the Senate and House intelligence committees over the past 3 years.5 Senator Huddleston, sponsor of the floor amendment containing the version of section 413 that was enacted into law, emphasized upon the amendment’s in­ troduction the comprehensive and exclusive nature of the scheme being estab­ lished: “this amendment is identical to Senate bill 2284 which the Senate passed by a vote of 89 to 1 on June 3 of this year. It is a bill that establishes the con­ gressional oversight procedures dealing with our intelligence agencies.”6 Sena­ tor Huddleston also agreed, in a floor colloquy with Senator Javits on S. 2284, with the following statement by Senator Javits: 1 agree thoroughly with the need for simplifying [the practice of the oversight committees]. There are some seven committees here that could have had this wrestling match with the executive . . . . I am satisfied ... that the method we now have chosen ... repre­ sents a fair, effective, and objective way in which to accomplish the results of simplifying the intelligence relations between the President and Congress ... and limiting further the opportunities for misadventure, premature disclosure, and so forth . . . . What we are doing is simply legislating... a new arrangement or modus vivendi for the handling of information and consultations between Congress and the intelligence agencies ... ? The Senate report on S. 2284 also confirms the understanding that congres­ sional oversight with respect to intelligence matters was to be limited to the in­ telligence committees. In the “general statement” that preceded the section by section analysis, the report noted: Out of necessity, intelligence activities are conducted primar­ ily in secret. Because of that necessary secrecy, they are not sub­ ject to public scrutiny and debate as is the case for most foreign policy and defense issues. Therefore, the Congress, through its in­ telligence oversight committees, has especially important duties in overseeing these vital activities by the intelligence agencies of the United States. [50 U.S.C. § 413] is intended to authorize the process by which information concerning intelligence activities 3 16 Weekly Comp. Pres. Doc. 2231 (Oct. 14, 1980). 6 126 Cong. Rec. 17,692 (1980). 7 126 Cong. Rec. 17,692-93 (1980) Senator Moyruhan agreed with the position of Senators Huddleston and Javits that a major purpose of the Intelligence Oversight Act was to reduce the number of congressional commit­ tees that sought intelligence information: “there is a rule of intelligence, which the Senator [Javits] knows well from his wartime experience, which is that you protect sensitive information by compartmentation. The more important that matter is the fewer persons you want to know about i t . . . . ” Id. at 17,694. 175 of the United States is to be shared by the two branches in order to enable them to fulfill their respective duties and obligations to govern intelligence activities within the constitutional framework. The Executive branch and the intelligence oversight committees have developed over the last four years a practical relationship based on comity and mutual understanding, without confronta­ tion. The purpose of [section 413] is to carry this working rela­ tionship forward into statute.8 Based on the evidence of intent on the part of both the legislative and execu­ tive branches that oversight by the intelligence committees would be the exclu­ sive method of congressional oversight concerning intelligence information, we conclude that 50 U.S.C. § 413 stands as statutory authority for the Administra­ tion to decline to provide GAO with access to any intelligence information sought in the Noriega investigation. II. Executive Privilege Should GAO, in response to an appropriate direction from Congress, subse­ quently undertake an investigation properly related to its statutory authority, it would then be necessary to review established principles concerning the main­ tenance of confidentiality with respect to certain executive branch information. Congressional investigations normally do not pose this problem to the degree suggested by the pending GAO investigation because they are properly tailored to address non- confidential subjects. Disturbingly, and in contrast, the type of information in which GAO expressed interest in its letter of June 23, 1988 sug­ gests a desire to review confidential material generally not available outside the executive branch, such as intelligence, law enforcement, and deliberative process information.9 Since GAO has not yet made any specific requests, we cannot analyze the case for withholding any particular document or information. What we do below is summarize briefly the general executive privilege principles that apply in the in­ dividual contexts of intelligence, law enforcement, and deliberative process in­ formation. A. Protection of Intelligence Information In the hierarchy of executive privilege, the “protection of national security” constitutes the strongest interest that can be asserted by the President and one to 8 S Rep. No. 730, 96th Cong., 2d Sess. 5 (1980) (emphasis added) More specifically, the Senate report stated that “[t]his amendment repeals the congressional reporting requirement of the Hughes-Ryan Amendment of 1974 . . . The effect is to limit reporting to the two intelligence oversight committees, as compared with the seven com­ mittees that now receive such reports . . . ” Id at 5. 9 This subject is usually discussed in terms of “executive privilege,” and we will use that convention here. The question, however, is not strictly speaking just one of executive privilege. The pnvdege itself need not be claimed formally vis-a-vis Congress except m response to a lawful subpoena 176 which the courts have traditionally shown the utmost deference. In United States v. Nixon, for instance, the Court contrasted President Nixon’s claim of executive privilege based on the Executive’s general interest in confidentiality with a claim based on the President’s national security responsibilities: [President Nixon] does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the Courts have traditionally shown the utmost deference to Presidential responsibilities. 418 U.S. 683,710(1974) (emphasis added). B. Protection of Law Enforcement Information With respect to open law enforcement files, it has been the policy of the ex­ ecutive branch throughout our Nation’s history to protect these files from any breach of confidentiality, except in extraordinary circumstances. Attorney Gen­ eral Robert H. Jackson well articulated the basic position: It is the position of this Department, restated now with the ap­ proval of and at the direction of the President, that all investiga­ tive reports are confidential documents of the executive depart­ ment of the Government, to aid in the duty laid upon the President by the Constitution to “take care that the Laws be faithfully exe­ cuted,” and that congressional or public access to them would not be in the public interest. Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospec­ tive defendant, could have no greater help than to know how much or how little information that Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain. 40 Op. Att’y Gen. 45, 46 (1941). There are, however, circumstances in which the Department of Justice may decide to disclose to Congress information about prosecutorial decisions. This is particularly true where an investigation has been closed without further prose­ cution. In such a situation concerns about real or perceived congressional inter­ ference with an investigation, and about the effects of undue pretrial publicity on a jury, would disappear. Still, extreme caution must be applied whenever the dis­ closure of such records is contemplated. Much of the information in a closed criminal enforcement file such as unpublished details of allegations against par­ 177 ticular individuals and details that would reveal confidential sources and inves­ tigative techniques and methods would continue to merit protection. C. Protection of Deliberative Process Information The Constitution gives the President the power to protect the confidentiality of deliberations within the executive branch. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 446 455 (1977); United States v. Nixon, 418 U.S. at 708. This is independent of the President’s power over foreign affairs or national se­ curity, or law enforcement; it is rooted instead in “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Pres­ idential decisionmaking.” Id. at 708. The Supreme Court has held that, for this reason, communications among the President and his advisers enjoy “a pre­ sumptive privilege” against disclosure in court. Id. The reasons for this privilege, the Court said in United States v. Nixon, are “plain.” “Human experience teaches that those who expect public dissemina­ tion of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Id. at 705. Often, an advisor’s remarks can be fully understood only in the context of a particular debate and of the positions others have taken. Advisors change their views, or make mistakes which others correct; this is indeed the purpose of internal debate. The result is that advisors are likely to be inhibited if they must anticipate that their remarks will be disclosed to others, not party to the debate, who may misunderstand the significance of a particular statement or discussion taken out of context. Some advisors may hesitate out of self interest to make remarks that might later be used against their colleagues or superiors. As the Supreme Court has stated, “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making de­ cisions and to do so in a way many would be unwilling to express except pri­ vately.” Id. at 708. These reasons for the constitutional privilege have at least as much force when it is Congress, instead of a court, that is seeking information.10The United States Court of Appeals for the District of Columbia Circuit has explicitly held that the privilege protects presidential communications against congressional in­ quiries." 10 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations against Congress to some degree. See United States v Nixon, 418 U S. at 712 n.19. Moreover, in Nixon v. Admin­ istrator o f Gen. Servs., 433 U.S. 425 (1977), the Court held that the constitutional privilege protects executive branch deliberations from disclosure to members of the same branch in a later administration; the Court rejected the specific claim of privilege in that case not because the privilege was inapplicable but because the intrusion was limited and the interests justifying the intrusion were strong and nearly unique. See id. at 446-55. 11 During the Watergate investigation the court of appeals rejected a Senate committee’s efforts to obtain tape recordings of conversations in President Nixon’s offices The court held that the tapes were constitutionally privi­ leged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir 1974) (en banc). The court held that the com­ mittee was not entitled to the recordings unless it showed that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions ” Id at 731 (emphasis added). 178 D. Accommodation with Congress 1. Governing Principles Because a claim of executive privilege is not absolute, the executive branch has a duty to seek to accommodate requests that are within Congress’ legitimate oversight powers. See United States v. AT&T, 567 F.2d 121, 127 130 (D.C. Cir. 1977) (suggesting that, even when a claim of executive privilege rests on national security grounds, the Executive does not enjoy clear and absolute discretion to deny legitimate congressional requests for information, but that each of the two branches must attempt to balance and accommodate the legitimate needs of the other).12 This duty of accommodation means that the Executive should attempt to satisfy the requests of Congress as completely as it can without making harm­ ful disclosures. See Memorandum for the Attorney General from John M. Har­ mon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitu­ tional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee (Jan. 13, 1981). In this spirit, the Executive has occasionally offered Congress sum­ maries of documents prepared in such a manner as not to disclose, for example, deliberative aspects that might chill executive branch decisionmaking. See id. at 22-23. The nature of the accommodation required in responding to a congressional request for information depends on the balance of interests between the Execu­ tive and Congress. In order for its interests to be given weight, Congress must ar­ ticulate its need for the particular materials; it must “point[] to . .. specific leg­ islative decisions that cannot responsibly be made without access to materials uniquely contained” in the presumptively privileged documents (or testimony) it has requested, and show that the material “is demonstrably critical to the re­ sponsible fulfillment of the Committee’s functions.” Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d at 731, 733.13 12 It should be emphasized, however, that in United States v. AT&T the information Congress sought related to wiretaps on American citizens placing telephone calls from the United States. Although these wiretaps were justi­ fied on national security grounds and the President, in turn, could assert national security as a basis for withhold­ ing the information, Congress clearly had a substantial interest in this subject matter, because the wiretaps impli­ cated the individual rights of American citizens. Accordingly, we believe that a court may view the relative weights of executive and legislative interests differently when the information sought relates directly to the conduct of for­ eign relations rather than to the rights of American citizens. 13 In Senate Select Committee, for example, the court held that the committee had not made a sufficient show­ ing of need for copies of the presidential tape recordings, given that the President had already released transcripts of the recordings. The committee argued that it needed the tape recordings “in order to verify the accuracy o f’ the transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the inflection and tone of voice of the speakers. But the court answered that in order to legislate a committee of Con­ gress seldom needs a “precise reconstruction of past events.” 498 F.2d at 732. “The Committee has . . . shown no more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the transcripts may contain.” Id. at 733. For this reason, the court stated, “the need demon­ strated by the Select Committee .. is too attenuated and too tangential to its functions” to override the President’s constitutional privilege Id 179 2. Procedural Issues Only rarely do congressional requests for information result in a subpoena of an executive branch official or in other congressional action. In most cases the informal process of negotiation and accommodation recognized by the courts, and mandated for this Administration by President Reagan,14 is sufficient to re­ solve any dispute. On occasion, however, the process breaks down, and a sub­ poena is issued by a congressional committee or subcommittee.15 At that point, it would be necessary to consider asking the President to assert executive privi­ lege. Under the terms of the President’s Memorandum, executive privilege can­ not be asserted vis-a-vis Congress without specific authorization by the Presi­ dent, based on recommendations made to him by the concerned department head, the Attorney General, and the Counsel to the President. Conclusion We believe that there are statutory grounds which preclude GAO’s present re­ quest for access to executive branch agencies for the purposes of conducting the investigation described in its letter of June 23, 1988. Should GAO’s request be reformulated in a manner which properly relates it to a congressional interest within the terms of 31 U.S.C. § 717(b) and which comports with the statutory re­ strictions on access to intelligence information found in 50 U.S.C. § 413, it will be appropriate at that time to consider the application of additional lawful au­ thority to withhold particular national security, intelligence, law enforcement, or deliberative process information. This Office is available for consultation with respect to requests for particular documents or information. D o u g l a s W . K m ie c Acting Assistant Attorney General Office of Legal Counsel 14 President Reagan’s November 4,1982 Memorandum for the Heads of Executive Departments and Agencies on “Procedures Governing Responses to Congressional Requests for Information” states: The policy of this Administration is to comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch . [E]xecutive pnvilege will be asserted only in the most compelling circumstances, and only after care­ ful review demonstrates that assertion of the privilege is necessary Historically, good faith negotia­ tions between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving con­ flicts between the Branches. 15 In the current context, such a subpoena could only be issued after GAO had reported to its congressional re­ quester that it was unable to obtain the information from the executive branch. Before requesting that a congres­ sional committee issue a subpoena, GAO might attempt to enforce its request for information pursuant to the judi­ cial enforcement mechanism authorized under 3 1 U S C §716. Such a course of action could be successfully resisted by the executive branch without a claim of executive pnvilege, however, because judicial enforcement is precluded whenever the Director of the Office of Management and Budget or the President certify that the information could be withheld under exemptions (b)(5) (information withholdable in litigation) or (b)(7) (law enforcement informa­ tion) of the Freedom of Information Act (5 U.S.C. § 552(b)(5), (b)(7)) and ‘‘disclosure reasonably could be expected to impair substantially the operations of the Government." 31 U S C § 716(d)(1)(C). Upon such a certification, GAO would presumably refer enforcement to the congressional committee. 180

Write a legal research memo on the following topic.

Assertion of Executive Privilege Over Communications Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request The President may lawfully assert executive privilege in response to congressional subpoenas seeking communications within the Executive Office of the President or between the Environmental Protection Agency and the EOP concerning EPA’s promulgation of a regulation revising national ambient air quality standards for ozone or EPA’s decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. June 19, 2008 THE PRESIDENT THE WHITE HOUSE Dear Mr. President: You have asked for my legal advice as to whether you may assert executive privilege with respect to documents subpoenaed by the Committee on Oversight and Government Reform (the “Committee”) of the House of Representatives. The Committee has issued three subpoenas, two directed to the Administrator of the Environmental Protection Agency (“EPA”) and one to the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget (“OIRA”), a component of the Executive Office of the President (“EOP”). The subpoena to OIRA and one of the subpoenas to EPA seek documents related to EPA’s promulgation of a regulation revising national ambient air quality standards (“NAAQS”) for ozone on March 12, 2008. The other subpoena directed to EPA seeks documents reflecting communications between EPA and the EOP concerning the agency’s decision to deny a petition by California for a waiver from federal preemption to enable it to regulate greenhouse gas emissions from motor vehicles. The Office of Legal Counsel of the Department of Justice has reviewed the documents that EPA and OIRA have identified as responsive to the subpoenas but have not provided to the Committee. The great majority of these documents are internal to EOP and were generated in the course of advising and assisting you with respect to your consideration of EPA’s proposed ozone regulation. The great majority of the EOP documents are internal OIRA deliberative work product in support of your participation in the ozone decision. The remaining OIRA documents consist of deliberative communications between OIRA and others within the EOP, including White House staff. The EPA documents include unredacted copies of notices for meetings between EPA officials and senior White House staff to discuss the ozone regulation and California waiver decisions; redacted copies of the notices that are being produced to the Committee indicate the time and place of the meetings, but the identities of the meeting participants are redacted. The only other EPA document concerning the ozone regulation is a set of talking points for 1 Opinions of the Office of Legal Counsel in Volume 32 the EPA Administrator to use in a meeting with you. The remaining EPA documents consist of talking points for EPA officials to use in presentations to senior White House staff at meetings at which California’s waiver petition was discussed, communications within EPA and with EOP staff concerning the preparation of talking points for you to use in a conversation with the Governor of California, communications with EOP staff regarding how to respond to a letter to you from the Governor, and a response to a request from senior White House staff for a report on EPA’s goals and priorities. The Office of Legal Counsel is satisfied that the subpoenaed documents fall within the scope of executive privilege. For the reasons discussed below, I agree with that determination and conclude that you may properly assert executive privilege in response to the subpoenas. I. Documents generated for the purpose of assisting the President in making a decision are protected by the doctrine of executive privilege. See, e.g., In re Sealed Case, 121 F.3d 729, 752–53 (D.C. Cir. 1997) (addressing presidential communications component of executive privilege); Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 1–2 (1999) (opinion of Attorney General Janet Reno) (same). As the Supreme Court recognized in United States v. Nixon, 418 U.S. 683 (1974), there is a necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These . . . considerations justify[] a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. Id. at 708. The doctrine of executive privilege also encompasses Executive Branch deliberative communications that do not implicate presidential decisionmaking. As the Supreme Court has explained, the privilege recognizes “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” Nixon, 418 U.S. at 705. Based on this principle, the Justice Department—under administrations of both political parties—has concluded repeatedly that the privilege may be invoked to protect Executive Branch deliberations against congressional subpoenas. See, e.g., Assertion of Executive Privilege With Respect to Prosecutorial 2 Assertion of Executive Privilege Over Communications Regarding Air Quality Standards Documents, 25 Op. O.L.C. 1, 2 (2001) (opinion of Attorney General John D. Ashcroft) (“The Constitution clearly gives the President the power to protect the confidentiality of executive branch deliberations.”); Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. at 2 (explaining that executive privilege extends to deliberative communications within the Executive Branch); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 30 (1981) (opinion of Attorney General William French Smith) (assertion of executive privilege to protect deliberative materials held by the Department of Interior). 1 The subpoenaed documents implicate both the presidential communications and deliberative process components of executive privilege. The EPA Administrator’s talking points regarding the ozone regulation were provided for your use and are thus subject to the presidential communications component of the privilege. The OIRA documents fall within the scope of the presidential communications component because they are deliberative documents generated by your staff in reviewing a proposed agency regulation on your behalf and developing a position for presentation to you. Among other things, the OIRA documents contain candid assessments of alternative actions that EPA or you could pursue. Addressing the subpoenaed documents in their entirety, I believe that publicly releasing these deliberative materials to the Committee could inhibit the candor of future deliberations among the President’s staff in the EOP and deliberative communications between the EOP and Executive Branch agencies, particularly deliberations concerning politically charged issues. As the Supreme Court explained, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Nixon, 418 U.S. at 705. Accordingly, I conclude that the subpoenaed materials at issue here fall squarely within the scope of executive privilege. II. Under controlling case law, a congressional committee may overcome an assertion of executive privilege only if it establishes that the subpoenaed documents are 1 The Justice Department’s long-standing position finds strong support in various court decisions recognizing that the deliberative process privilege protects internal government deliberations from disclosure in civil litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975) (“Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions.”); Landry v. FDIC, 204 F.3d 1125, 1135–36 (D.C. Cir. 2000) (describing how agencies may assert the “deliberative process” component of executive privilege in litigation); Dow Jones & Co., Inc. v. Dep’t of Justice, 917 F.2d 571, 573–74 (D.C. Cir. 1990) (describing the “‘deliberative process’ or ‘executive’ privilege” as an “ancient privilege . . . predicated on the recognition that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl”) (internal quotation marks omitted). 3 Opinions of the Office of Legal Counsel in Volume 32 “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). Those functions must be in furtherance of Congress’s legitimate legislative responsibilities. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight authority “to enable it efficiently to exercise a legislative function belonging to it under the Constitution”). In particular, a congressional committee must “point[] to . . . specific legislative decisions that cannot responsibly be made without access to [the privileged] materials.” Senate Select Comm., 498 F.3d at 733. I do not believe that the Committee has satisfied this high standard with respect to the subpoenaed documents. In assessing the Committee’s need for the subpoenaed documents, the degree to which the Committee’s stated legislative interest has been, or may be, accommodated through non-privileged sources is highly relevant. See id. at 732–33 (explaining that a congressional committee may not obtain information protected by executive privilege if that information is available through non-privileged sources); United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (explaining that each branch has a “constitutional mandate to seek optimal accommodation” of each other’s legitimate interests); Assertion of Executive Privilege, 23 Op. O.L.C. at 3–4 (finding that documents were not demonstrably critical where Congress could obtain relevant information “through non-privileged documents and testimony”). With respect to the ozone standards, the Committee asserts that it needs the subpoenaed materials to understand why the White House rejected EPA’s “recommendations regarding the ozone standard” and to determine whether White House staff complied with the Clean Air Act when evaluating EPA’s proposed regulation. Letter for Stephen L. Johnson, Administrator, EPA, from Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform at 2 (May 16, 2008). The Committee offers similar justifications in support of its demand for materials related to the California waiver issue. See, e.g., Letter for Stephen L. Johnson, Administrator, EPA, from Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform at 1 (Dec. 20, 2007) (“Your decision appears to have ignored the evidence before the agency and the requirements of the Clean Air Act.”). The Committee’s claim that it must have the subpoenaed materials to understand the reasons for EPA’s decision on the ozone regulation is unconvincing given the substantial information already available to the Committee. To date, EPA and OIRA have produced or made available to the Committee approximately 30,000 pages of documents related to the revised ozone NAAQS standard. See, e.g., Memorandum for the Members of the Committee on Oversight and Government Reform, from the Majority Staff of the Committee on Oversight and Government Reform, Re: Supplemental Information on the Ozone NAAQS at 1 4 Assertion of Executive Privilege Over Communications Regarding Air Quality Standards (May 20, 2008) (30,000 pages of documents received from EPA and the Office of Management and Budget); see also Letter for Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform, from Jeffrey A. Rosen, General Counsel, Office of Management and Budget at 1 (May 20, 2008) (OIRA provided the Committee with access to more than 7,558 pages of documents). In particular, EPA and OIRA produced to the Committee copies of all communications between the Administrator of OIRA and the Administrator of EPA concerning the ozone NAAQS regulation. These communications explain in considerable detail the views of OIRA, EPA, the White House, and the President concerning the ozone NAAQS standard. See, e.g., Letter for Stephen L. Johnson, Administrator, EPA, from Susan E. Dudley, Administrator, OIRA at 1 (Mar. 12, 2008) (describing disagreements between OIRA and EPA and advising EPA of the President’s decision). Moreover, EPA publicly disclosed the substance of these concerns in the preamble to its Federal Register notice for the final ozone regulation. Finally, the Administrators of both EPA and OIRA testified before the Committee on May 20, 2008, concerning the ozone regulation. At that hearing, the Committee had ample opportunity to explore with the witnesses the decisions and rationale for the regulation. It is of particular importance in considering the Committee’s need for the internal OIRA documents—which constitute the great bulk of the documents at issue— that when the Administrator of OIRA testified before the Committee on May 20, the Committee had the opportunity to ask her about OIRA’s role, as well as that of you and the White House staff, in the process leading up to the issuance of final NAAQS ozone regulation. Yet, the Committee asked no such questions. Indeed, Administrator Dudley was asked only four questions during the entire hearing. None of the questions put to the Administrator related to OIRA’s internal deliberations or communications with the White House, and none demonstrated a need for additional documents or information from OIRA. See Letter for Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform, from Jeffrey A. Rosen, General Counsel, Office of Management and Budget at 2 (June 18, 2008). EPA made similar accommodations with respect to the California waiver decision. The agency has made available to the Committee approximately 27,000 pages of documents concerning the decision. See Memorandum for the Members of the Committee on Oversight and Government Reform, from the Majority Staff of the Committee on Oversight and Government Reform, Re: EPA’s Denial of the California Waiver at 1 (May 19, 2008). Again, these materials describe in considerable detail—as a memorandum prepared by Committee Staff demonstrates—the reasons behind EPA’s decision to deny California’s petition. Beyond receiving access to tens of thousands of pages of documents, the Committee also “deposed or interviewed eight key officials from the EPA” concerning the California waiver decision, id. at 1, and, as discussed above, the Committee had an 5 Opinions of the Office of Legal Counsel in Volume 32 opportunity to explore the California waiver decision with the EPA Administrator at the public hearing on May 20. OIRA’s and EPA’s efforts represent an extraordinary attempt to accommodate the Committee’s interest in understanding why EPA denied California’s waiver petition, why EPA issued the revised NAAQS for ozone, and the involvement of you and your staff in both decisions. Given the overwhelming amount of material and information already provided to the Committee, it is difficult to understand how the subpoenaed information serves any legitimate legislative need. In any event, when I balance the Committee’s attenuated legislative interest in the subpoenaed documents against the Executive Branch’s strong interest in protecting their confidentiality, I conclude that the Committee has not established that the subpoenaed documents are “demonstrably critical to the responsible fulfillment” of the Committee’s legitimate legislative functions. Senate Select Comm., 498 F.2d at 731. III. For these reasons, I conclude that you may properly assert executive privilege in response to the Committee’s subpoenas. MICHAEL B. MUKASEY Attorney General 6

Write a legal research memo on the following topic.

Whether the District of Columbia’s Clean Air Compliance Fee May Be Collected From the Federal Government The D istrict o f Colum bia’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 o f the United States. January 23, 1996 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l G e n e r a l S e r v ic e s A d m in is t r a t io n This memorandum responds to your request for our opinion on whether the District of Columbia (“ District” ) may collect from the General Services Adminis­ tration the Clean Air Compliance Fee (“ Clean Air Fee” or “ Fee” ) established by a District of Columbia statute, the Clean Air Compliance Fee Act of 1994 (“ A ct” ), D.C. Act 10-387, reprinted in 42 D.C. Reg. 86 (1995).1 As discussed below, we conclude that the District may not collect the Fee with respect to prop­ erty owned by the United States. The Fee is a tax on such property, and such taxes are beyond the authority of the Council of the District of Columbia (“ D.C. Council” ) under the District of Columbia Self-Government and Governmental Re­ organization Act, D.C. Code Ann. §§ 1-201 to 1-299.7 (1992) (“ Self-Government Act” ). I. The following finding in the Act sets forth the D.C. Council’s statement of the Act’s purpose: By requiring payment from employment parking that is not subject to the parking sales and use tax and by allocating the revenues to the transit component of the [District’s] Clean Air Regulatory Pro­ gram the [District] will simultaneously discourage the use of single­ occupancy vehicles for home-to-work travel while encouraging the use of car pools and transit, thereby reducing air pollution in com­ pliance with requirements under the Clean Air Act. Act §2(5). In its operative provisions, the Act requires owners of real property in the District containing parking spaces that are used for commuting more than 1 In considering this question, we have received the assistance o f the Tax and Environment and Natural Resources Divisions o f the Department o f Justice and w e have carefully considered the views submitted by the O ffice of the C orporation Counsel o f the Government o f the District o f Columbia. See Letter for W alter Dellinger, Assistant Attorney General, O ffice o f Legal Counsel, from Garland Pinkston, Jr., Acting Corporation Counsel, Office o f the Corporation Counsel (June 19, 1995) ( “ Corporation Counsel Letter” ). 12 Whether the District o f Columbia’s Clean Air Compliance Fee May Be Collected From the Federal Government two days per week and for which the District’s parking sales and use tax is not collected to register the spaces and pay a Clean Air Fee calculated at a rate of $20 per month per space. Id. §§3-5. Penalties are prescribed for failure by prop­ erty owners to register employment parking spaces or to pay the Fee. Id. § 10. Property owners may seek reimbursement of the Fee from users of the parking spaces. Id. § 4(b). The Act provides that revenues from the Fee “ shall be used to defray the cost of the transit component of the [District’s] Clean Air Regulatory Program.” Id. §11. The Act’s legislative history makes it clear that the D.C. Council intended that the proceeds of the Fee would be used exclusively to subsidize mass transit: “ The Committee [of the Whole of the D.C. Council] directs that the revenue collected from this fee be used to fund the District’s payment to [the Washington Metropolitan Area Transit Authority (“ WMATA” )] as part of a mass transpor­ tation subsidy . . . .” Report to All Councilmembers, from David A. Clarke, Chairman, Re: Bill 10-610, the “ Clean A ir Com pliance Fee Act o f 1994” at 10 (July 5, 1994) (“ Council Report” ). The threshold, and ultimately dispositive, question presented here is whether the Clean Air Fee, to the extent it applies to property owned by the United States, is a “ tax” or a “ fee.” This question would necessarily arise in connection with any fee imposed on the federal government by a state or local government, be­ cause the federal government is immune from state and local taxation. See McCulloch v. M aryland, 17 U.S. (4 Wheat.) 316, 436 (1819) (“ [T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” ). It has long been estab­ lished that a state or local government cannot impose a tax upon the United States, its agencies, or its instrumentalities “ without a clear congressional mandate.” Kem-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954). The “ tax or fee” question arises in a unique context here because the federal government has divided the legislative authority for the District between Congress and the D.C. Council. As the District of Columbia Court of Appeals has summa­ rized: The United States Constitution vests Congress with the exclusive legislative authority for the District of Columbia. U.S. Const, art. I, §8, cl. 17. In 1973, Congress passed the Self-Government Act to “ relieve Congress of the burden of legislating upon essentially local District matters.” D.C. Code 1981, §l-201(a). Subject to its retention of the ultimate legislative authority over the District of Columbia, Congress delegated certain specific legislative powers to the District of Columbia government. Id. . . . In addition [to “ ex­ pressly reserv[ing] its right ‘to exercise its constitutional authority 13 Opinions o f the Office o f Legal Counsel in Volume 20 as legislature for the District, by enacting legislation for the District on any subject’ Congress placed several explicit limitations on the Council’s legislative authority. D istrict o f Colum bia v. Greater Washington Cent. Labor Council, 442 A.2d 110, 113 (1982) (quoting Self-Government Act, § 1-206), cert, denied, 460 U.S. 1016 (1983).2 As in the cited District of Columbia Court of Appeals case, “ [t]he specific limitation[ ] which [is] pertinent to the issue before us [is] enumerated in § 1233.” Id. Subsection (a)(1) of §1-233 provides that “ [t]he Council shall have no authority to . . . [ijmpose any tax on property of the United States or any of the several states.” Thus, if the Clean Air Fee is a “ tax on property of the United States,” then the D.C. Council lacked the authority to impose it.3 II. A tax is an “ enforced contribution to provide for the support of government.” United States v. LaFranca, 282 U.S. 568, 572 (1931). In distinguishing between government taxes and fees, courts have identified two different types of fees: “ user or service fees” and “regulatory fees.” The D.C. Council imposed the Clean Air Fee on owners of parking spaces in the District and directed that reve­ nues from the Fee be used exclusively to subsidize the mass transit system. For the reasons set forth below, we conclude that the Fee does not qualify as either a “ user or service fee” or a “ regulatory fee” but is instead an “ enforced con­ tribution to provide for the support o f government.” Id . 4 2 This O ffice has consistently expressed the sam e understanding o f the limitations on the D.C. Council’s authority. For exam ple, in 1976 we opined that the legislative power o f the D.C. Council is subject to careful reservations by the Congress o f its ow n constitutional powers and to specific limitations included in title V I o f the Home Rule Act. Indeed, the very grant o f pow er in section 404(a) begins with the words, “ (sjubject to the limitations specified in title V I o f this Act, . . Thus there are real limits on the C ouncil’s authority to act. The most specific o f those title VI limitations are set forth in Section 602 [D.C. Code 1981, § 1-233] o f the Home Rule Act. Memorandum for H ugh M. D urham, Legislative Counsel, Office o f Legislative Affairs, from Mary C. Lawton, Deputy Assistant Attorney G eneral, Office o f Legal C ounsel, Re: District o f Columbia Enrolled Bill B -l-137, the District o f Columbia Shop-Book Rule Act at 2 (Feb. 18, 1976). 3 The foregoing discussion indicates that principles o f federal immunity from local taxation and limitations on the D.C. C ouncil’s authority are both implicated by the “ tax o r fee” question. If the Clean Air Fee is a “ tax,” then under either principle only Congress could authorize the imposition o f the tax on the United States. It is important to recognize, how ever, that congressional authorization o f the D istrict’s tax w ould require tw o analytically distinct steps, whereas congressional authorization o f o th e r state and local taxes requires only one. Congress may waive federal immunity against a properly enacted state or local tax, acting solely in its capacity as legislature for the United States. O n the other hand, for Congress to authorize the D istrict’s C lean Air Fee, it must both waive federal immunity and either authorize the D.C. Council to impose the tax (acting as legislature for the United States) or impose the tax directly itself (acting as legislature fo r the District). 4 In light o f this conclusion, there is no need to consider the argument that the Clean A ir Fee falls within the scope o f the w aiver o f federal immunity against state and local taxation and regulation set forth in section 118 of the federal C lean A ir Act, 42 U.S.C. §7418. See Corporation Counsel Letter at 3-7. For even if the Fee satisfies the terms o f that w aiver, it may not be imposed on the United States because its enactment was beyond the D.C. 14 Whether the District o f Columbia’s Clean A ir Compliance Fee May Be Collected From the Federal Government A. Central to the analysis of whether a government levy is a user or service fee or instead a tax is whether it is imposed to collect payment for a benefit or service provided by the government to the specific payor as a result of a voluntary act by the payor, or whether instead the payment is viewed as a mandatory contribu­ tion for the general support of the government. The clearest Supreme Court guid­ ance on whether an exaction is a tax or a user or service fee is set forth in N ational Cable Television A ss’n v. United States, 415 U.S. 336 (1974). In considering whether a fee imposed by the Federal Communications Commission was a tax and therefore beyond the FCC’s authority, the Court opined: Taxation is a legislative function, and Congress, which is the sole organ for levying taxes, may act arbitrarily and disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income. A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of soci­ ety. . . . A “ fee” connotes a “ benefit” . . . . Id. at 340-41 (footnote omitted). In United States v. City o f Huntington, W.Va., 999 F.2d 71 (4th Cir. 1993), cert, denied, 510 U.S. 1109 (1994), the court applied a facts-and-circumstances test to determine whether a so-called “ municipal service fee,” consisting of a “ fire service fee” and a “ flood protection fee,” imposed upon property owners in Huntington, West Virginia, including federal agencies, was a tax upon the C ouncil’s authority under the Self-Government Act. W aivers o f immunity apply only to properly enacted state and local measures. Nor is there a need to ascertain the scope o f the Clean Air Act waiver o f federal immunity in order to conclude that there is no basis for construing that w aiver as an implied repeal o f the Self-Government A ct’s limitation on the authority of the D.C. Council. The District did not make this implied repeal argument in its submission to this Office, see Corporation Counsel Letter, but the argument was analyzed in a Congressional Research Service memorandum concerning the Clean Air Fee, see M emorandum by George Costello, American Law Division, Congres­ sional Research Service, Re: Application o f District o f Columbia " Clean Air Compliance Fee Act" to the Federal Government at 6 -7 (Mar. 24, 1995). We believe the argument has no merit. It is a well-established principle o f statutory construction that “ repeals by implication are strongly disfavored.” United Stales v. Fausto, 484 U.S. 439, 452 (1988). ‘‘[A] later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the tw o.” Id. at 453 (citations omitted). There is no repugnancy between the Self-Government Act and the subsequently enacted section 118 o f the Clean A ir Act. They address fundamentally different subjects: the latter addresses federal immunity (i.e., the relationship between the federal government and state and local govern­ ments), while the former addresses D.C. Council legislative authority ( i.e„ the relationship between Congress and the D.C. Council). Moreover, neither the text nor the legislative history o f Clean A ir Act section 118 contain the slightest indication that during its deliberations on waiving federal immunity Congress gave any thought to the legisla­ tive authority of the D.C. Council. 15 O pinions o f the Office o f Legal Counsel in Volume 20 United States or was instead a fee for services rendered. The court stated that “ [u]ser fees are payments given in return for a government-provided benefit. Taxes, on the other hand, are ‘enforced contribution[s] for the support of govern­ ment.’ ” Id. at 74 (quoting U nited States v. LaFranca, 282 U.S. at 572). The court held that the municipal service fee was “ a thinly disguised tax” because the federal agencies’ liability for the fee “ arises from [their] status as property owners and not from their use of a City service.” Id. In U nited States v. C ity of Columbia, Mo., 914 F.2d 151 (8th Cir. 1990), the court considered whether a levy charged by a city as part of the price of water and electricity was a tax or a fee. Even though the levy was described in the applicable city ordinance as being in lieu of a tax, the court held that the levy was part of the utility rate and was unlike a tax in many significant respects: it was not contained in a section dealing with the city’s taxing power; it was charged to the customer as part o f the price of electricity and water; and failure to pay the levy would result in termination of services rather than subject the customer to penalties. As for the levy’s application to the federal government, the court said that [t]he United States’ obligation to pay the [levy arose] only from its consensual purchase of the City’s [water and electricity]; it d[id] not arise automatically, as does tax liability, from the United States’ status as a property owner, resident, or income earner. When the United States purchases water, electricity, and related services, and then pays the utility bill, it does so as a vendee pursuant to its voluntary, contractual relationship with the City. The City imposes the charge not in its capacity as a sovereign, but as a vendor of goods and services. Id. at 155-56 (citing National C able Television, 415 U.S. at 340-41). The results in Columbia and Huntington represent straightforward applications of the Supreme Court’s approach in National Cable Television. In Columbia, the levy was held not to be a tax because the federal agency voluntarily used certain amounts of electricity and water and the levy was for the service actually provided to the agency. In contrast, in Huntington the assessment was not based on actual fire and flood services that had been provided on request, but rather represented a charge to property owners for fire and flood protection available to all inhab­ itants of the city; thus, it was a tax — a mandatory contribution for the support of government services provided to the entire public. The Clean Air Fee cannot qualify as a user or service fee because the revenue from the Fee is used to provide an undifferentiated benefit to the entire public. The Fee is indistinguishable for present purposes from the assessment to support community-wide services that was held to be a tax in Huntington. It is not a 16 Whether the District o f Columbia’s Clean A ir Compliance Fee May Be Collected From the Federal Government charge for any identifiable District services provided specifically to the owners of parking spaces upon their request. Rather, it is a charge to support the mass transit services the District provides to all inhabitants (permanent and temporary) of the District. Such services, as was the case with the “ [f]ire and flood protection and street maintenance [services at issue in Huntington ,] are core government serv­ ices” available to all inhabitants of the city. Huntington, 999 F.2d at 73. The court’s rationale in Huntington is fully applicable here: If the argument that the Clean Air Fee is a user fee rather than a tax were to be accepted, then “ virtually all of what now are considered ‘taxes’ could be transmuted into ‘user fees’ by the simple expedient of dividing what are generally accepted as taxes into constituent parts, e.g., a ‘police fee.’ ” Id. at 74. Taxes imposed on property owners are traditionally used to support government services for the whole com­ munity, and the Clean Air Fee is no different. Moreover, in contrast to the levy held to be a fee in Columbia, the United States’ obligation to pay the Clean Air Fee does not arise from any consensual purchase of a good or service from the District, but rather arises automatically from its status as a property owner. See Columbia, 914 F.2d at 155. The United States is in no respect acting “ as a vendee pursuant to its voluntary, contractual relationship with the [District].” Id. at 156. In short, the District has “ impose[d] the charge . . . in its capacity as a sovereign, [not] as a vendor of goods and services.” Id. Also in contrast to the Columbia fee, the District will enforce the Fee through civil penalties, not the denial of any supposed benefit that the Fee makes possible. B. The case law concerning whether a government levy is a regulatory fee or a tax was summarized by then-Chief Judge Breyer of the First Circuit Court of Appeals in San Juan Cellular Telephone v. Public Serv. Comm’n, 967 F.2d 683 (1st Cir. 1992): Courts have had to distinguish “ taxes” from regulatory “ fees” in a variety of statutory contexts. . . . They have sketched a spec­ trum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “ tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. The classic “ reg­ ulatory fee” is imposed by an agency upon those subject to its regulation. It may serve regulatory purposes directly by, for exam­ ple, deliberately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly by, for exam17 Opinions o f the Office o f Legal Counsel in Volume 20 pie, raising money placed in a special fund to help defray the agen­ cy’s regulation-related expenses. Courts facing cases that lie near the middle of this spectrum have tended . . . to emphasize the revenue’s ultimate use, asking wheth­ er it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency’s costs of regulation. Id. at 685 (citations omitted). We believe that the Clean Air Fee is considerably closer to being a paradigmatic tax than a paradigmatic regulatory fee. In Judge Breyer’s terms, the Fee “ is im­ posed by a legislature [the Council] upon many, or all, citizens [all owners of employment parking spaces]. It raises money, contributed to a general fund, and spent for the benefit of the entire community [the account funding the District’s subsidy for mass transit, which is a service available to the entire community].” Id. In other words, the Fee is imposed by a legislative body on property owners to raise revenue; it is not imposed by a “ [regulatory] agency upon those subject to its regulation.” Id. Moreover, the fact that the Fee applies only if the District’s sales and use tax has not been imposed already on the parking service for the vehicle also suggests that the Fee is a tax, because it indicates that the Fee is intended to complement the parking tax. Indeed, the D.C. Council indicated as much in its report on the Act when it stated that “ [t]he fee will only be imposed on persons who do not currently pay the District’s parking tax.” Council Report at 10. The District’s argument that the Clean Air Fee is a regulatory fee is as follows: We conclude that the District is required by the Federal Clean Air Act to reduce, eliminate and control sources of air pollution and that the monetary exaction imposed by the Clean Air Compli­ ance Fee Act is designed to encourage the use of mass transit and decrease air pollution associated with automobile traffic. Inasmuch as the primary purpose of this exaction is the control and abatement of air pollution, we conclude that this exaction is a “ fee” not a “ tax.” Corporation Counsel Letter at 3. As a threshold matter, it is open to question whether it is correct to view the Fee’s primary purpose as being to regulate air pollution by automobile traffic rath­ er than to raise revenue for mass transit that benefits the general public. The fact that the proceeds of the Fee are to be allocated entirely to support the mass transit system strongly suggests that the primary purpose of the Fee is to raise revenue to support government operations. See Act §11; Council Report at 10. In addition, although discouraging the use of automobiles for commuting no doubt does serve 18 Whether the District o f Columbia’s Clean A ir Compliance Fee May Be Collected From the Federal Government air pollution regulatory purposes, the actual reduction in automobile commuting that can be expected here, as a result of the imposition of the Fee, is indirect and speculative compared to the direct and immediate revenue impact and support for mass transit that will result.5 In any event, even assuming that the Clean Air Fee falls in the middle of the fee-tax spectrum, following Judge Breyer’s focus on the revenue’s ultimate use leads to the conclusion that this exaction is a tax. To accept the District’s charac­ terization would require that we conclude either that subsidizing mass transit is a regulation-related cost of the District’s air pollution regulatory program or that the assumed regulatory impact of the Fee on air pollution (as a result of reduced automobile commuting and increased use of mass transit) is sufficient by itself to render it a regulatory fee notwithstanding the remaining aspects of the Fee that all suggest it is a tax. With respect to the first of these alternatives, while we do not doubt that encouraging the use of mass transit can have a beneficial effect on air pollution, the costs of a separate, non-regulatory government program that benefits the public as a whole are not the kind of costs that courts have viewed as defrayable by regulatory fees. See supra pp. 17-19. The subsidization of mass transit is not a regulatory cost, but rather a general government expense typically defrayed by taxes: subsidization of mass transit “ provides a general ben­ efit to the public, of a sort often financed by a general tax.” San Juan Cellular Telephone, 967 F.2d at 685. As for the second alternative, the simple response is that ascribing a regulatory purpose to a tax does not mean that it is not a tax. Taxes often have a significant regulatory purpose: “ [A] tax is a powerful regulatory device; a legislature can discourage or eliminate a particular activity that is within its regulatory jurisdiction simply by imposing a heavy tax on its exercise.” Massachusetts v. United States, 435 U.S. 444, 455-56 (1978). See also National Cable Television A ss’n v. United States, 415 U.S. 336, 341 (1974) (“ The lawmaker may, in light of the ‘public policy or interest served,’ make the assessment heavy if the lawmaker wants to discourage the activity; or it may make the levy slight if a bounty is to be be­ stowed . . . . Such assessments are in the nature of ‘taxes’ . . . .” ). Thus, the fact that discouraging automobile commuting is one of the stated reasons for the Clean Air Fee does not convert it from a tax into a regulatory fee when its rev­ enue-raising purpose in support of separate, non-regulatory government operations is so direct and substantial. The foregoing analysis is supported by the decision s See, e.g., Statement o f Art Lawson, Administrator, Office o f Mass Transit, Department of Public Works, Before the Council o f the District o f Columbia Committee o f the Whole at 1 -2 (May 18, 1994). ( “ A lthough these measures will not on their own result in measurable reductions o f automobile use within the District o f Columbia it is the direction setting that is most important here. Additionally, these measures are important because they will generate desperately needed revenues to help fund the District’s FY 1994 and 1995 W MATA operating budget. . . . [T]he District’s subsidy to support WMATA was reduced by $7.2 million in the current budget year. This reduction left WMATA underfunded by approximately $7 million. The Committee on Regional Authorities proposed to m ake up the $7 million by implementing a series o f transfer charges and fare increases on District Metrobus service. . . . [Councilwoman Mason] has proposed that the revenue from these bills be used to fund the W MATA deficits thereby making the fare and transfer charge proposals unnecessary. ’ ’). See also id. at 6. 19 Opinions of the Office o f Legal Counsel in Volume 20 in San Juan C ellular Telephone and the cases cited in Judge Breyer’s opinion in that case. In San Juan, the court held that a three percent of gross revenues charge imposed on a telephone company by the Puerto Rico Public Service Com­ mission as a condition of the company’s authorization to provide cellular tele­ phone service was a regulatory fee. Judge Breyer stressed that the fee was assessed by a regulatory agency, was placed in a special fund, and was not to be used for a general purpose but rather to defray specific costs of regulation (investigative expenses, hiring of services, and acquisition of equipment). 967 F.2d at 686. His opinion distinguished the case before the court, as well as other cited examples of regulatory fees,6 from those cases that had held charges to be taxes because the proceeds from the charges were used for general purposes or to raise general revenue.7 Schneider Transport, Inc. v. Cattanach is particularly instructive for our pur­ poses. In that case, it was argued that truck registration fees imposed on trucking companies were “ regulatory licensing fees.” The Seventh Circuit rejected this argument, finding that “ [although not denominated as such, the registration fees are imposed for revenue-raising purposes, a characteristic of any tax . . . [, and] [t]he fees are deposited in a segregated fund, the state transportation fund, for transportation purposes, including highway construction.” 657 F.2d at 132 (cita­ tions omitted). Thus, as with the Clean Air Fee, the charge went beyond regulatory purposes and raised revenue to support a separate, non-regulatory government pro­ gram. Finally, we observe that our conclusion that the Clean Air Fee is not a regulatory fee does not conflict with Judge Breyer’s statement that a regulatory fee “ may serve regulatory purposes [by] deliberately discouraging particular conduct by making it more expensive.” 967 F.2d at 685. The fact that some bona fide regu­ latory fees serve regulatory purposes in this way does not mean, of course, that every charge with a regulatory purpose that raises revenue beyond what would defray regulatory costs must be viewed as a fee rather than a tax. As discussed above, supra p. 19, taxes often have regulatory purposes. See Massachusetts v. United States, 435 U.S. at 455—56; N ational Cable Television A ss’n v. United States, 415 U.S. at 341. Judge Breyer cited only one case involving this type of regulatory fee. 967 F.2d at 685 (citing South Carolina ex rel. Tindal v. Block, 717 F.2d 874 (4th Cir. 1983), cert, denied, 465 U.S. 1080 (1984)). Block concerned a charge imposed 6 See, e.g., Union Pac. R.R. v. Public Util. Comm’n, 899 F.2d 854, 856 (9th Cir. 1990) (assessment helped defray utility com m ission's “ cost o f performing [its] regulatory duties'*); Mississippi Power & Light Co. v. United States Nuclear Regulatory Comm’n , 601 F.2d 223 (5th C ir. 1979), cert, denied, 444 U .S. 1102 (1980) (NRC charge helped pay costs o f environm ental reviews, hearings, and administrative and technical support). 7 See id. at 685 (citing Schneider Transport, Inc. v. Cattanach , 657 F.2d 128 (7th Cir. 1981) (charge on truckowners used to pay for highw ay construction), cert, denied, 455 U.S. 909 (1982); Keleher v. New England Tel. & Tel. Co., 947 F.2d 547 (2d Cir. 1991) (public utility com panies using city streets charged fee tied to utility’s gross revenues and not cost o f regulating utility’s use o f city streets), Robinson Protective Alarm Co. v. City o f Philadelphia, 581 F.2d 371, 376 (3d Cir. 1978) (charges on central aJarm companies based on gross revenues and “ added to the public fisc, rather than applied exclusively to contractual services o w ed" to the companies)). 20 Whether the District o f Columbia's Clean A ir Compliance Fee May Be Collected From the Federal Government by the Secretary of Agriculture on the proceeds of all milk sold commercially. The charge was remitted to the Commodity Credit Corporation (“ CCC” ) as part of a milk price support program administered for the Secretary by the CCC. The purposes of the charge were “ to encourage dairy farmers to reduce milk produc­ tion and to offset a portion of the cost of the milk price support program.” 717 F.2d at 876. Although Block principally concerned Administrative Procedure Act challenges to the Secretary’s imposition of the charge on milk sales, the court’s opinion also briefly discussed the allegation that the Secretary’s charge was a tax and therefore was unconstitutional for two reasons: it did not originate in the House of Representatives, and Congress cannot delegate its authority to tax. The court easily concluded that the charge was not a tax because it was authorized by Congress pursuant to its commerce power rather than taxing power, citing Wickard v. F ilbum , 317 U.S. I l l (1942), for the proposition that “ [t]he imposi­ tion of assessments have long been held to be a legitimate means of regulating commerce.” 717 F.2d at 887.8 Block does not support the position that the Clean Air Fee is a regulatory fee, because the charge addressed in that case differed from the Fee in two funda­ mental respects: it was imposed on regulated parties, not property owners, and, most significantly, the revenue raised from the charge was used only for the spe­ cific regulatory program of which it was a part, and to which the regulated parties were subject, not to support government operations in a separate, non-regulatory program that benefits the public generally. C. The “ tax or fee” cases cited by the Office of the Corporation Counsel, see Corporation Counsel Letter at 2, included both user or service fee cases and regu­ latory fee cases. The cited cases are consistent with our conclusion that the Clean Air Fee is a tax and not a fee. For example, in Valandra v. Viedt, 259 N.W.2d 510 (S.D. 1977), the court held that a “ mobile home license fee” was principally a tax because “ 85% of the fee collected [allocated to the county highway and bridge fund] is for revenue purposes and bears no relationship to the cost of ad­ ministering the [mobile home] registration system,” and only the fifteen percent allocated “ to defray costs of titling, registration and for unusual use of the high­ way” was arguably a fee. Id. at 512. Similarly, the Clean Air Fee is allocated to support a mass transit system and is not tied to any governmental service or 8 The two cases cited in this regard by the Block court each held that administrative sanctions imposed against farmers for exceeding marketing quotas were authorized under the commerce pow er and did not constitute taxes. See United States v. Stangland, 242 F.2d 843, 848 (7th Cir. 1957); Rodgers v. United Stales, 138 F.2d 992, 994 (6th Cir. 1943). The central rationale o f the cases was that the charge in question “ [was] not a charge on property for the purpose o f raising revenue. Revenue may incidentally arise therefrom, but that fact does not divest the regula­ tion of its commerce character and render it an exercise o f the taxing power.” Rodgers, 138 F.2d at 995. In contrast, the Clean Air Fee’s production o f revenue to subsidize mass transit is anything but incidental: the Fee is a charge on property for the purpose o f raising revenue. 21 Opinions o f the O ffice o f Legal Counsel in Volume 20 benefit specifically provided to owners of parking spaces. See also Radio Common Carriers v. State, 601 N.Y.S.2d 513, 516 (N.Y. 1993) (“ Section 1150 . . . is in effect a tax. The monthly one dollar fee is not related to licensing or other services performed for the [fee-payor] by the state . . . . The money collected is added to the general state fisc . . . .” ). Those of the cases cited by the Corporation Counsel that held that the charge in question was a fee generally differ from the present case in the critical respect that they involved payments to defray costs attributable to regulated parties. For example, in holding that a ten dollar criminal history records check charge paid by potential firearms buyers was a fee, the court in In re Shooters Emporium, Inc., 135 B.R. 701 (Bnkr. S.D. Fla. 1992), stated that the nature of the payment is voluntary. Payment is required only if one desires to purchase a firearm. The purpose of the payment is for private benefit. Only people who pay the fee may purchase a firearm. Furthermore, this payment is clearly designed to recoup the costs of regulation from the people regulated, rather than to raise general revenues. This payment can not be reasonably con­ strued to be an involuntary exaction for a public purpose. Id. at 702-03.9 In contrast to these cases, the Act makes clear that the Clean Air Fee is allocated to support mass transit; it does not defray costs attributable to parking space owners or any other regulated parties. III. For the reasons set forth above, we conclude that the Clean Air Fee is a tax. To the extent that the Fee is imposed on property owned by the United States, it is a “ tax on property of the United States” and therefore beyond the authority of the D.C. Council under the Self-Government Act. The District may not collect the Fee from the federal government. TERESA WYNN ROSEBOROUGH Deputy Assistant Attorney General Office o f Legal Counsel ' 9 See also City o f Vanceburg, Ky. v. Federal Energy Regulatory Comm’n, 571 F.2d 630, 644 (D.C. Cir. 1977) (dam-use charges are “ exacted against a licensee in exchange for a privilege which the licensee has requested or applied for and from which the licensee derives a special benefit” ), cert, denied, 439 U.S. 818 (1978); Strater v. Town o f York, 541 A.2d 938 (M e. 1988) (ten dollar charge for harbor usage); Memphis Retail Liquor Dealers’ Ass'n v. City o f Memphis, 547 S.W .2d 244 (Tenn. 1977) (emphasizing uniqueness of regulation o f alcoholic beverage industry and com m on practice o f regulating that industry through license taxes, holding that five percent inspection fee im posed on retailers was a fee even though it produced revenues that were 200 times the cost o f regulation). 22

Write a legal research memo on the following topic.

September 21, 1979 79-69 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, DEPARTMENT OF DEFENSE National Guard—Technician Dress and Grooming Regulations—Executive Order No. 11491—Review o f Decisions of Federal Labor Regulations Authority This responds to your request for the opinion o f the Department of Justice concerning Federal Labor Relations Council (Council) decisions on the negotiability o f National G uard technician dress-and-grooming regulations. The question arose in administrative proceedings instituted by labor organizations on behalf o f the technicians. Accompanying the re­ quest was a petition to the A ttorney General from the A djutants General o f the 50 States, the Virgin Islands, Puerto Rico, and the District o f Col­ umbia, and a m em orandum in support o f their position that the Council’s decisions are without legal support. As framed in that m em orandum, the questions on which our opinion is requested are whether the Council has jurisdiction to direct negotiations concerning a military regulation ap­ plicable only to National Guard technicians and promulgated pursuant to statute by the Departm ent o f Defense, and, if so, whether the Council ap­ plied an invalid standard o f review and thus erroneously determined that the regulation is negotiable. In o ur view; the Council did have jurisdiction to determine the negotiability o f the regulation in question. Although the m ethod for ap­ pealing its decisions is disputed, it does appear that administrative and judicial remedies are available to the dissatisfied party. It would be inap­ propriate under these circumstances for us to comment on the second question. 368 The Background Executive Order No. 11491 was issued in 1969 to govern labor-management relations in the executive branch o f the Federal G overnm ent.' It established the Federal Labor Relations Council to administer and inter­ pret the order2 and the Federal Service Impasses Panel (Panel) to settle negotiation impasses.3 It also set forth guidelines for negotiation o f collec­ tive bargaining agreem ents.4 Section 11(a), as amended prior to 1979, pro­ vided: (a) An agency and a labor organization that has been ac­ corded exclusive recognition, through appropriate represent­ atives, shall meet at reasonable times and confer in good faith with respect to personnel policies and practices and matters af­ fecting working conditions, so far as may be appropriate under applicable laws and regulations, including policies set forth in the Federal Personnel Manual; published agency policies and regulations for which a compelling need exists under criteria established by the Federal Labor Relations Council and which are issued at the agency headquarters level or at the level of a primary national subdivision; a national or other controlling agreement at a higher level in the agency; and this o rd er.5 Generally, the procedures for settling disputes as to negotiability were as follows: if an issue developed whether a proposal was negotiable, either party could seek a determ ination from the head o f the agency concerned.6 If the agency head determined an issue was not negotiable, a labor organization could appeal this determ ination to the Council. If, after a Council decision, the parties were unable to settle their differences, either party could request the Federal Service Impasses Panel to consider the m atter.8 Failure to obey a Panel order directing settlement was an unfair labor practice9 and a complaint could be filed with the Assistant Secretary o f Labor for Labor-M anagement R elations.10 The Assistant Secretary’s 'This order was am ended by Executive Orders Nos. 11616, 11636, 11838, 11901, 12073, 12107, and 12126. Executive O rders Nos. 12107 and 12126 conform ed the order to the pro­ cedures established by the Civil Service Reform Act o f 1978, 5 U .S.C . §§ 7101-7135. Unless otherwise specified, all citations to Executive O rder No. 11491 refer to the order as am ended prior to Executive O rder No. 12107. ’Exec. Order No. 11491, § 4. ’Exec. O rder No. 11491, § 5. *Exec. O rder No. 11491, § 11. ’This version o f § 11(a) appears in Executive O rder No. 11838 (Feb. 6, 1975). ‘Exec. O rder No. 11491, § 11(c)(2). ’Exec. Order No. 11491, § 11(c)(4). 'Exec. O rder No. 11491, § 17. ’Exec. Order No. 11491, § 19(a)(6). '“Exec. Order No. 11491, § 6(a)(4). 369 decision could be appealed to the C ouncil." A party dissatisfied with the Council’s decision on the unfair labor practice could seek relief in a Federal district c o u rt.12 Title VII o f the Civil Service Reform Act, 5 U.S.C. §§ 7101-7135, re­ vised these procedures, but did not affect matters pending as o f January 11, 1979, the effective date o f the A c t:13 No provision o f this Act shall affect any administrative pro­ ceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.14 The Council and the Panel have considered num erous cases on the nego­ tiability o f the National G uard technician dress and grooming regulations. National G uard technicians are civilians employed full-time for the ad­ ministration and training o f the National G uard and the maintenance and repair o f supplies issued to the National G uard or the Armed Forces.15 Technicians must be members o f the National G u ard .16 They are employees o f the Departm ent o f the Army or the Department o f the Air F orce,17 but technician employment and administration are delegated by the Secretaries o f these departm ents to the A djutants General o f the States and territories.1* Pursuant to regulatory authority,19 the Secretaries o f the Army and the Air Force have required National G uard technicians to wear military uniforms when performing technician duties, and to comply with groom ­ ing standards o f the appropriate service.20 Controversy arose when bargaining units o f the National G uard technicians proposed amendments to modify the requirement that uniform s be worn. When National Guard officials refused to negotiate the m atter, the unions, following the pro­ cedures o f Executive O rder 11491, requested a determ ination from the head o f the National Guard Bureau. In each case, he determined that negotiation was barred by Bureau regulations. Thereafter, the unions peti­ tioned the Council for review. They argued that negotiation is not barred "E xec. O rder N o. 11491, § 4(c)(1). 11See, e.g., Montana Chapter o f Assoc, o f Civ. Tech., Inc. v. Young, 514 F.(2d) 1165, 1168 (9th Cir. 1975); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 297 (D .D .C . 1976). 'T h e section specifying the effective date is Civil Service Reform Act o f 1978, Pub. L. No. 95-454, § 907.92 Stat. 1227. “ Civil Service Reform Act o f 1978, P ub. L. N o. 95-454, § 902(b), 92 Stat. 1224, 5 U .S.C . § 1101 note. "32 U .S.C . § 709(a). “ 32 U .S.C . § 709(b). '’32 U .S.C . § 709(d). "32 U .S.C . § 709(c). ' ’32 U .S.C . § 709(a), relating to the employm ent o f National G uard technicians. ’“Technician Personnel M anual 200 (213.2), Subchapter 2-4, provides in part: “ Techni­ cians in the excepted service will wear the military uniform appropriate to their service and federally recognized grade when perform ing technician duties and will comply with uniform standards o f the services.” 370 because, one, the regulation was not issued at or above the level o f a primary national subdivision o f the agency, and two, no compelling need for the regulation exists. The Council found that the National G uard Bureau is a primary national subdivision o f the Departm ent o f Defense within the meaning o f section 11(a) o f the order, but that no compelling need existed for the regulations in question.21 It decided, therefore, that the proposals o f the union were subject to negotiation. In most o f these cases, the parties still could not reach an agreement. The unions requested the Federal Service Impasses Panel to consider the negotiation impasses. The Panel issued recommendations that the parties adopt language in their agreements that the employees should have the op­ tion o f wearing either a uniform or an agreed-upon standard civilian at­ tire, and that the parties should agree upon exceptions to cover occasions on which the wearing o f the military uniform may be required.22 W hen these suggestions were rejected, the Panel issued orders directing the par­ ties to adopt the Panel’s recommended language in their agreements.23 Some o f these cases are still pending before the Panel. Discussion It is our opinion that the Council had the authority under Executive Order No. 11491 to determine the negotiability o f the dress-and-grooming regulations. That order explicitly gave the Council authority to resolve negotiability disputes.24 It applied, with certain exceptions, to all employees and agencies o f the executive branch.25 It does not appear to us that any o f the exceptions are relevant here. The A djutants General con­ tend that the exception provided in §. 3(b)(3) o f the order removes them from its application. This section provides: (b) This Order * * * does not apply to — (3) any other agency, or office, bureau, or entity within an agency, which has as a primary function intelligence, investi­ gative, or security work, when the head o f the agency deter­ mines, in his sole judgm ent, that the Order cannot be applied in a manner consistent with national security requirements and considerations * * * . ’'See Council Consolidated Decision on Negotiability Issues, Nos. 76A-16, 76A-17, 76A-40, 76A-43, 76A-54 (Jan. 19, 1977); Consolidated Decision on Negotiability Issues, Nos. 76A-75, 76A-76, 76A-84 (Jan. 19, 1977). 11See, e.g.. Panel Reports and Recom m endations for Settlement, In the Matter o f State o f New York and New York Council Assoc, o f Civilian Tech. Inc., 78 FSIP 32 (Sept. 28, 1978); In the Matter o f Penn. National Guard and Penn. State Council Assoc, o f Civilian Techni­ cians, Inc., 77 FSIP 29 (Jan. 20, 1978); In the Matter o f Kansas A rm y Nat ’I Guard and Local RI4-S7, N a t’l Assoc, o f G ov't Employees, 77 FSIP 30 (Nov. 2, 1977); In the Matter o f Mass. Air National Guard and Local 3004, AFL-CIO, 77 FSIP 18 (Aug. 26, 1977). ’’See, e.g., Decisions and Orders, In the Matter o f Mass. Arm y N a t’l Guard and Local 1629, N a t’l Federation o f Federal Employees, 77 FSIP 31 (Aug. 22, 1978); In the Matter o f Oregon A rm y/A ir N at’l Guard and Local 2986, AFL-CIO, 77 FSIP 53 (Aug. 22, 1978); In the Matter o f California N at’l Guard and Local RI2-I05, N a t’l Assoc, o f G ov’t Employees, 77 FSIP 70 (April 13, 1977). “ Exec. Order No. 11491, §§ 4(c)(2), 11(c)(4). ’’Exec. Order No. 11491, §§ 2(a), 3(a). 371 The A djutants General reason that they, as heads o f their agencies, have determined that the wearing o f the uniform by the technicians is required as a m atter o f security and that this determ ination cannot be reviewed by the Council because it is left to the “ sole judgm ent” o f the agency head. We disagree because the National G uard does not have as its primary function “ intelligence, investigative or security w ork.” The primary func­ tion o f the National G uard is to m aintain and assure the strength and organization o f reserve com ponents o f the Armed Forces.26 This is not the type o f security work excepted from the order. The maxim noscitur a sociis (a word is known by the com pany it keeps) applies here to limit the term “ security work” to the type o f work associated with intelligence and investigative w ork.27 W hether the Council applied an invalid standard o f review is not a m at­ ter for the Departm ent o f Justice to determine. Under the order, the Council is the final administrative authority.28 There is no right to appeal to the Attorney General, and it would be inappropriate for the D epart­ ment o f Justice to comment on the decision.29 The right o f appeal lies else­ where. Issues arising out o f the controversy now are pending before the Federal Labor Relations A uthority30 and at least one Federal co u rt.31 There is a long line o f opinions o f the Attorneys General to the effect that it is not proper to express an opinion upon a judicial question that is pend­ ing in, or must ultimately be decided by, the courts.32 Accordingly, we decline to comment on the Council’s decisions in these cases. Leon U lm an D eputy Assistant A ttorney General Office o f Legal Counsel “ 32 U .S.C . § 102. Section 709(e)(2) deals with the military security standards applicable to individual members o f a reserve com ponent. It does not define the primary function o f the National G uard. Cf., Third N a t’l Bank v. Impac. Limited, Inc. 432 U .S. 312 (1977), Jarecki v. G.D. Searte & Co.. 367 U .S. 303, 307 (1961). “ Exec. O rder No. 11491, § 11(c)(4). "See 11 O p. A tt’y Gen. 407, 408 (1865); 10 O p. A tt’y Gen. 347, 349 (1862); 6 O p. A tt’y Gen. 289 (1854). “ The Federal L abor Relations A uthority was created by the Civil Service Reform Act o f 1978, 5 U.S.C. § 7105. It is the “ successor” to the Council. Section 7123 o f the Act provides for judicial review o f final orders o f the A uthority. "See, Nevada N a t’l Guard v. United States, No. 79-7235 (9th C ir., filed May 31, 1979). "See, e.g., 41 O p. A tt’y Gen. 266, 272 (1956); 37 O p. A tt’y Gen. 34, 42 (1932); 33 Op. A tt’y Gen. 86, 87 (1922). 372

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Effect of a Judicial Stay on Administrative Fund Termination Proceedings U n d e r th e n o n d iscrim in atio n p ro v isio n s o f th e O m nibus C rim e C o n tro l and Safe S tre ets A ct o f 1972, th e ad m in istrativ e p ro cess by w h ic h funds are su sp en d ed o r term in a te d is in d ep en d en t o f an y c o n tem p o ran eo u s ju d icial p ro c e e d in g , an d a stay e n te re d in the ju d icial p ro ceed in g th u s has no effect on an ad m in istrativ e decision to suspend or term in a te funds. T h e L aw E n fo rcem en t A ssistance A d m in istratio n is free to d efer a d m in istra tiv e fund suspension o r term in atio n p ro ceed in g s d u rin g th e p en d en cy o f a ju d icial stay, b ut is fo reclo sed from re sto rin g funds th at h av e a lre a d y b een su sp en d ed o r term in a te d ex cep t in a c c o rd a n c e w ith th e p ro c e d u re s set fo rth in th e O m nibus C rim e C o n tro l an d Safe S treets A ct. U n d e r th e n o n d isc rim in atio n p ro v isio n s o f th e R e v en u e S h arin g A c t, th e O ffice o f R e v en u e S h arin g is req u ired to suspend ad m in istrativ e en fo rc em en t p ro ceed in g s, an d to resto re funds a lread y su sp ended o r term in a te d , w h e n e v e r a stay is issued in th e ju d icial p ro ceed in g th at trig g e re d th e ad m in istrativ e en fo rc em en t action. M a r c h 14, 1980 MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY G EN ERA L, CIVIL RIGHTS DIVISION This responds to your request for our opinion on the effect of a stay pending appeal upon fund termination proceedings of the Office of Revenue Sharing (ORS) in the Department of the Treasury under the civil rights provisions of the State and Local Fiscal Assistance Act of 1972, as amended (Revenue Sharing Act), 31 U.S.C. § 1242, and upon the Law Enforcement Assistance Administration (LEAA) under the analogous provisions of the Omnibus Crime Control and Safe Streets Act of 1972, as amended (Crime Control Act), 42 U.S.C. § 3789d(c).* Both statutes include provisions that require the agencies to institute their own enforcement proceedings whenever they learn of a judicial or administrative determination that a recipient has discriminated in viola­ tion of federal law, and both provide for automatic suspension of funds to a recipient within a fixed time thereafter. The question has arisen whether a stay pending appeal of a lower court order vacates or defers administrative fund suspension. •N o t e : U nder § 815(c) o f th e Justice Systems Im provem ent A ct o f 1979, Pub. L. N o. 97-157, 93 Stat. 1167, 1206-09, the O ffice o f Justice Assistance, Research and Statistics replaced L E A A as the entity responsible for adm inistrative enforcem ent o f the nondiscrim ination provisions o f the C rim e C ontrol A ct. Ed. 487 Your division takes the position that a stay has the legal effect of vacating or deferring such suspension. Both the Department of the Treasury and LEA A disagree. The two agencies maintain that the administrative process by which funds are terminated under the two acts is independent of any contemporaneous judicial proceeding, whether or not the same issues of discrimination are involved, and whether or not their administrative process has been triggered in the first instance by a determination in the judicial proceeding. Therefore, in their view a stay entered in the judicial proceeding has no effect on an administrative decision to suspend funds. The Civil Rights Division memorandum takes the position that the administrative role under both statutes is merely “ancillary and supportive” of the judicial process, and that the agencies are therefore obliged “to honor” a judicial stay by suspending their administrative procedures or, if necessary, restoring the flow of federal funds. For reasons stated hereafter, we agree with your Division's position on the effect of a stay on administrative fund suspension under the Revenue Sharing Act, but find merit in the position advanced by LEA A in interpreting its responsibilities under the Crime Control Act. We believe the law requires ORS, whose actions are triggered by and are to some extent dependent on a judicial determination, to conform its actions to those of a court granting a stay. And we think that Congress intended this administrative conformity to extend to the restoration of funds already suspended or terminated. Although neither the terms nor the legislative history of the relevant provisions of the Revenue Sharing Act deal with the effect of a stay on ORS proceedings, we believe that Congress intended to assure recipients of federal funds under that Act an opportunity to contest a preliminary determination of discrimination, and to avoid fund suspension by showing a likelihood of ultimate success on the merits. Because in federal court one of the grounds for granting a stay pending appeal in this context is precisely this likelihood of success on the merits,1 we believe that Congress, had it considered 1 T h e Federal Rules o f C ivil P rocedure p ro v id e that an interlocutory o r final o rd er in an action for an injunction will not be stayed except pursuant to the provisions o f Rule 62(c). This provides in pertinent part that: w hen an appeal is taken from an in terlo cu to ry o r final judgm ent granting, dissolving, o r denying an injunction, the c o u rt in its discretion may suspend, modify, restore, o r grant an injunction d uring the pendency o f the appeal upon such term s as to bond or otherw ise as it considers p ro p er for the security o f th e adverse party. R ule 8(a) o f the Federal Rules o f A ppellate P ro ced u re provides that a stay pending appeal ought in the first instance to be sought in the district co u rt, but that a m otion for relief may be m ade in the cou rt o f appeals w h ere such a course is not practicable o r w here the district c ourt has denied an application. Because a stay itself has the effect o f an injunction o r restraining order, the requirem ent in R ule 65(d) that it be accom panied by a statem ent o f reasons has been held to apply. See M oore's F ederal P ractice § 62.05 at 62-21 through 22 (1979 ed.). A n applicant for a stay pending appeal under F R C P R ule 62(c) o r F R A P R ule 8(a) must make a “stro n g show ing” that he will succeed on the merits o f his appeal. See Belcher v. Birm ingham Trust N a t. Bank, 395 F.2d 685 (Sth Cir. 1968); Virginia Petroleum Jobbers Ass'n v. FPC. 259 F.2d 921, 925 (D .C . Cir. 1958); M onde! v. H E W , 417 F. Supp. 57 Continued 488 the issue, would not have approved the continuance of administrative procedures leading to fund termination in the face of a federal judicial stay and in disregard of it. The analogous provisions of the Crime Control Act differ signifi­ cantly from those of the Revenue Sharing Act, however, and in our view these differences make persuasive LEA A ’s argument that its own administrative process was intended by Congress to be independent of any concurrent litigation involving the same issues of discrimination. At the same time, we believe that LEAA is free under its statute to defer administrative fund suspension in the event of a judicial stay, and that sound policy may in some cases dictate such deferral. Unlike ORS, however, LEAA is probably foreclosed from restoring funds that have already been suspended or terminated except in accordance with the procedures set forth in its statute. Because the relevant provisions of the two statutes differ markedly, and because our conclusions with respect to their import for the two agencies differ correspondingly, we discuss them separately. I. The Crime Control Act Section 518(c)(1) of the Crime Control Act, 42 U.S.C. § 3789d(c)(l), prohibits discrimination on grounds of race, color, religion, national origin or sex, by a state or local government, in a program or activity receiving funds under a grant administered by LEAA. Section 518(c)(2), 42 U.S.C. § 3789d(c)(2), which was added to the Act in 1976 by Pub. L. No. 94-503, 90 Stat. 2418, sets out the administrative procedures by which the nondiscrimination provisions in the preceding paragraph are enforced. In relevant part these require LEAA, upon receiving notice of a “finding” by a federal or state court or administra­ tive agency to the effect that there has been a “pattern or practice” of discrimination in violation of subsection (c)(1), to set in motion an administrative procedure leading to suspension and, ultimately, termina­ tion of funds. Under this procedure LEA A must notify the chief execu­ tive of the affected governmental unit that a program or activity has been found not to be in compliance, and must request that officer to secure compliance. 42 U.S.C. §§ 3789d(c)(2)(A)(i) and (ii). If after 90 days compliance has not been secured, and if an administrative law judge has not “made a determination under subparagraph (F) that it is likely the state government or unit of local government will prevail on the merits,” LEAA “shall notify” the Attorney General that compli­ ance has not been secured “and caused [sic] to have suspended further payment of any funds under this chapter to that program or activity.” (D . Md. 1976). Professor M oore states that w here a c o u rt o f appeals grants a stay o f an interlocutory order, “the grant o f such a stay seems tantam ount to deciding that the interlocutory injunction was im properly g ran ted ." M oore's Federal Practice, § 62.05 at 62-26. 489 42 U.S.C. § 3789d(c)(2)(C). The “determination under subparagraph (F)” is explained in that section as follows: Prior to the suspension of funds under subparagraph (C), but within the ninety day period after notification under subparagraph (C), the State government or unit of local government may request an expedited preliminary hearing on the record in accordance with section 554 of title 5, in order to determine whether it is likely that the State government or unit of local government would, at a full hearing under subparagraph (G), prevail on the merits of the issues of alleged noncompliance. A finding under this subparagraph by the administrative law judge in favor of the State government or unit of local government shall defer the suspension of funds under subparagraph (C) pending a finding of noncompliance at the conclusion of the hearing on the merits under subparagraph (G). At the “full hearing” under subparagraph (G) referred to in this sec­ tion, the issues of discrimination are heard on the merits, and LEAA must make “a finding of compliance or noncompliance.” If LEAA makes a finding of “noncompliance,” the Attorney General “may” terminate the payment of funds. 42 U.S.C. § 3789d(c)(2)(G)(ii). Once funds have been suspended by LEAA there are only four circumstances, set out in subparagraph (D), under which payment may be resumed: (1) if the recipient enters into a compliance agreement approved by LEA A and the Attorney General; (2) if the recipient “complies fully with the final order or judgment” of a court or adminis­ trative agency, if that order or judgment covers all the matters raised in L EA A ’s original notice of noncompliance; (3) if the recipient “is found to be in compliance with subsection (c)(i) by such court”;2 and (4) if after a hearing LEA A finds “that noncompliance has not been demon­ strated.” 3 42 U.S.C. §§ 3789d(cX2)(D)(i) through (ii). . This statutory scheme suggests an intention on the part of Congress to limit agency discretion in certain respects (e.g., mandatory com­ mencement of proceedings upon notice of a “finding,” and mandatory suspension of funds 90 days thereafter); at the same time, it permits LEA A to reach its own independent conclusions on the issues of discrimination raised, and ultimately to make an independent decision to lift or continue a suspension pending a full administrative hearing on 2 T h e statute inexplicably fails to give the same effect to a similar finding o f an adm inistrative agency. 9 Subparagraph (D ) makes reference to a hearing “ pursuant to subparagraph (F ).” But subparagraph (F ) describes the “expedited prelim inary hearing*’ before an adm inistrative law judge. It is subpara­ graph (G ) w hich describes the full hearing in w hich L E A A determ ines the issue o f com pliance on the merits. W e think the reference in subparagraph (D ) to subparagraph (F ) is mistaken, and that it should instead be read as a reference to the hearing described in subparagraph (G). 490 the merits of the discrimination charge, by showing a likelihood of success at a preliminary hearing. But the statute does not spell out what relationship if any Congress intended there to be between L E A A ’s enforcement procedures once they have been set in motion, and any ongoing judicial or administrative proceedings which may have trig­ gered them in the first place. The legislative history of the 1976 amendments to the Crime Control Act does little to clarify this relationship. It manifests congressional dissatisfaction with the lack of initiative shown by LEAA in enforcing the nondiscrimination provisions of the Act, and an intent to remedy this by forcing the agency into action whenever a court or another agency “finds” the recipient to have engaged in a “pattern or practice” of discrimination. Thereafter, however, it would appear that LEA A was perceived as having an enforcement role independent of contempo­ raries and related court proceedings. The House report states that “the Committee bill will require the Administration to honor the discrimina­ tion findings of State and Federal courts and State and Federal agencies by then beginning its own enforcement process with the sending out of noncompliance notices to recipients found by others to have discrimi­ nated.” H.R. Rep. No. 1155, 94th Cong., 2d Sess. 26 (1976) (emphasis added).4 The more important evidence of LEA A ’s independence comes from a reading of the statute itself, and from a comparison of its provisions with the analogous provisions of the Revenue Sharing Act. Unlike the Revenue Sharing Act, the Crime Control Act contains no provisions requiring deference on the merits to the triggering “finding” in any part of the administrative process. Rather, it would seem that this “finding” operates on the agency only to spur it into “beginning its own enforce­ ment process.” 5 As will be discussed in greater detail below, the analogous sections of the Revenue Sharing Act are considerably more explicit with respect to the further substantive effect that should be given the triggering judicial determination. 4 T he Senate bill had made no changes in the nondiscrim ination provisions o f the C rim e C ontrol A ct, and the conference com m ittee reported out provisions that w ere in all pertinent respects identical to those in the H ouse bill. See H .R. Rep. No. 1723, 94th Cong., 2d Sess. 32 (1976). 5 O ne o f the difficulties in construing L E A A 's obligations under these provisions o f the statute is C ongress' failure to define w hat it meant by a ‘‘finding.” It is not clear in the statute o r its legislative history w h eth er this term was meant to include prelim inary o r interlocutory “ findings,” o r w hether it should be limited to formal findings after a full hearing. L E A A 's ow n regulations do not define the term, but that agency has apparently interpreted it to include the findings em bodied in a prelim inary injunction order. If the “ finding" is view ed solely as a triggering m echanism, then w e w ould have no basis on w hich to quarrel w ith L E A A 's expansive definition o f the term. If, on the o th e r hand, a “ finding’' w ere to be considered m ore o r less determ inative o f the agency's ow n actions on the m erits in connection w ith fund suspension, as it appears to be under the R evenue Sharing A ct, w e w ould be less com fortable w ith the notion that C ongress intended to include in the term “finding" any statem ent or action o f a court w ith respect to a com plaint b rought before it. See note 8 infra. It is precisely because under the C rim e C ontrol A ct a c o u rt's “ findings" are not substantively binding on L E A A that we are constrained to agree w ith that agency on the legal effect o f a stay. 491 To be sure, the Crime Control Act provides that payment of sus­ pended funds should be resumed if the recipient “complies fully with the final order or judgment” of a court. But, by implication, any court action short of a “final order or judgment” would in itself permit no such resumption. Therefore, when funds have already been suspended by LEAA, a stay in the related judicial proceeding does not, in our opinion, have any effect on the suspension. On the other hand, where funds have not yet been suspended and the agency inquiry is still under way, the statute does not appear to compel any particular agency response to developments in litigation involving the same issues. The opportunity provided the recipient in subparagraph (F) to defer suspen­ sion by demonstrating a likelihood of success on the merits before an administrative law judge suggests a general congressional policy under­ lying the Act which we think would permit LEAA to defer its own suspension proceedings where a stay has been granted by the court whose “findings” triggered those proceedings in the first place. This is, however, a matter of policy and not a matter of law. In sum, based on our reading of § 518(c)(2) of the Crime Control Act and its legislative history, we agree with LEA A that its administrative process is independent of the triggering judicial or administrative pro­ ceedings; that suspended funds may be resumed only upon the happen­ ing of one of the events specified in subparagraph (D); and in particular that it is not required under the statute to bring its own administrative process to a halt in the event a stay is obtained in a contemporaneous and related judicial proceeding. On the other hand, we do not think LEAA is precluded from taking into account the implications of a stay order in the course of its own pre-suspension proceedings. The congres­ sional policy reflected in subparagraph (F) would fully support a deci­ sion by LEAA to honor such a stay, and defer suspension pending a full administrative hearing on the merits. Indeed, we think in some circumstances LEAA would not be remiss in its responsibilities under the statute in deferring all administrative action pending a resolution of the issues raised in the court proceeding.6 II. The Revenue Sharing Act The 1976 amendments to the Revenue Sharing and Crime Control Acts were passed on October 13 and 15 of that year, respectively. In both cases Congress was seeking to strengthen the nondiscrimination 8 L E A A 's ow n regulations appear to recognize the desirability o f coordinating its enforcem ent efforts w ith contem poraneous litigation involving the same issues. F o r exam ple, the regulations provide that if an L E A A com plainant has also filed suit in federal o r state court, and if the trial o f the suit w ould be in progress during the L E A A investigation, L E A A “ will suspend its investigation and m onitor the litigation through the co u rt docket and co n tacts w ith the com plainant." 28 C .F .R . § 42.205(c)(5). In addition, w hen a triggering “ finding" has been m ade m ore than 120 days before L E A A learns o f it, notification o f noncom pliance will be deferred pending an inquiry into the current status o f the case. 28 C .F .R . § 42.210(c). 492 enforcement provisions of prior law, and to provide mechanisms to compel the two agencies to commence proceedings looking toward termination of federal funds in the event a recipient state or local government were found by a court or agency to have discriminated in violation of federal law. The provisions intended to accomplish this objective in the two Acts turned out quite differently, however, primar­ ily because the Senate took an active role in amending the Revenue Sharing Act and displayed little or no interest in the nondiscrimination provisions in the Crime Control Act. The House bills amending both Acts contained essentially identical enforcement provisions. These were enacted without substantive change into the Crime Control Act amend­ ments, and without any separate contribution from the Senate. See note 4 supra. But the Senate had its own proposals to make with respect to the Revenue Sharing Act, proposals that were quite different from those of the House, and that were in the main accepted by the Confer­ ence Committee. The “compromise” 7 reached in conference between the House and Senate on the nondiscrimination enforcement programs of the Revenue Sharing Act was enacted into § 122 of the Act by Pub. L. 94-448, 90 Stat. 2350, and is codified in § 1242 of title 31. A brief review of its pertinent provisions shows how the Senate’s approach differed from that of the House in the Crime Control Act. Like the analogous provisions of the Crime Control Act, § 122(b)(1) contains a triggering mechanism for the commencement of administrative enforcement pro­ ceedings leading to fund termination. This triggering mechanism is described in § 122(c)(1) as a “holding” by a federal or state court, or federal administrative law judge, that the recipient state government has discriminated in violation of federal law.8 Once the Secretary of the Treasury has received notice of a “holding,” a notice of noncompli­ ance must be sent the recipient, and the fund termination procedure set in motion.9 Subsections (b)(2) and (b)(3) describe a hearing procedure 7 122 Cong. Rec. 34,099 (Sept. 30, 1976) (rem arks o f Rep. D rinan, a sponsor o f the bill in the House). 8 Unlike the triggering events in § 518(c)(2) o f the C rim e C ontrol A ct, the triggering events under the R evenue Sharing A ct are not restricted to a “ pattern o r practice” determ ination, and no effect is given determ inations o f a State adm inistrative agency. 9 A lthough you have not asked o ur opinion on the issue o f w h eth er a “ holding" under the Revenue Sharing A ct includes an interlocutory o rder, we note the position o f O R S that it does include such orders in reaching o u r ultim ate conclusions on the effect o f a stay o f such an order. In its regulations, O R S defines a “ holding" as “any finding o f fact o r conclusion o f law . . . w hich has been litigated . . .“ 31 C .F .R . § 51.67(a). O R S has taken the position that a prelim inary injunction constitutes a “ holding" for purposes o f triggering its adm inistrative fund suspension procedure, a position w hich we do not understand your Division to dispute. L E A A appears to take the sam e position w ith respect to a “ finding" under the Crim e C ontrol A ct. See note 5 supra. W e also note here that w e d o not think C ongress intended to attach any particular significance to the use o f the term “holding" in the Revenue Sharing A ct, as opposed to the term “ finding" used by the Crim e C ontrol A ct. N o difference betw een the tw o term s w as asserted in Congress, and none has been claim ed by either L E A A o r O RS. A s it happened, the term “ holding" was the one em ployed by the Senate in its revenue sharing bill, and the term “ finding" was em ployed by the H ouse in both its crim e control bill and its revenue sharing bill. T he term s “ holding" and “ finding" are used inter* Continued 493 before the Secretary of the Treasury and, if requested subsequently, an administrative law judge. It is at this point that the two statutes part ways. Where the two-step hearing procedure under the Revenue Shar­ ing Act has been triggered by a “holding” on the issues of discrimina­ tion, the substance of this “holding” may not be collaterally attacked before either the Secretary or the administrative law judge. That is, the recipient may present evidence to the Secretary only on the issue of whether the program or activity in which discrimination is charged has been federally funded, and not on the merits of the discrimination charge itself. If the Secretary determines that federal funds are in­ volved, and if the recipient then requests a further hearing before an administrative law judge, that officer too is precluded from addressing the discrimination issue on the merits. In case there remains any doubt, subsection (c)(2) restates the restrictions on the administrative process as follows: If there has been a holding described in paragraph [(c)(1)] with respect to a State government or a unit of local government, then, in the case of proceedings by the Sec­ retary pursuant to subsection (b)(2) of this section or a hearing pursuant to subsection (b)(3) of this section with respect to such government, such proceedings or such hearings shall relate only to the question of whether the program or activity in which the exclusion, denial, dis­ crimination, or violation occurred is funded in whole or in part with funds made available under subchapter I of this chapter. In such proceedings or hearing, the holding described in paragraph [(c)(1)] . . . shall be treated as con­ clusive. 31 U.S.C. § 1242(c)(2) (emphasis added). Unless the Secretary or admin­ istrative law judge finds that the program in which discrimination is charged is not federally funded, the Secretary “shall” suspend payment of funds. Subsection (e) of the statute sets out the five grounds on which suspended payments may be resumed where a “holding” has triggered the suspensions: 1) if the recipient government enters into a compliance agreement with the government agency or office responsible for pros­ ecuting the claim or complaint which is the basis for the holding, if the agreement has been approved by the Secretary;10 2) if the recipient government “complies fully with the holding,” if that holding covers all matters raised in the Secretary’s notice of noncompliance; 3) if the changeably in both the Senate rep o rt and the conference report on the revenue sharing bill, suggesting that that body did not focus at ail on the difference, if any. betw een them. See S. Rep. No. 1207, 94th C ong., 2d Sess. 32 (1976); H .R. Rep. No. 1720, 94th C ong., 2d Sess. 35-36 (1976). Indeed, in discussing the conditions for resum ption o f funds both reports speak o f com pliance w ith an “o rd e r’* o f a federal court, w here the statute uses the term “ holding.” Id. See 31 U.S.C. 1242(e)(2). 10 T h e com pliance agreem ent is described in subsection (d)(1). 494 recipient is found to be in compliance by the court or agency that issued the holding; 4) if the administrative law judge determines that the recipient is in compliance under subsection (b)(3)—a determination which may be based only on the presence or absence o f federal funds, not the merits of the discrimination claim; and 5) if the body that has issued the triggering holding is reversed by an appellate tribunal. This final condition of lifting the suspension is also dealt with in subsection (c)(3): If a holding described in paragraph [(c)(1)] is reversed by an appellate tribunal, then proceedings under subsection (b) o f this section which are dependent upon such holding shall be discontinued; any suspension or termination of pay­ ments resulting from such proceedings shall also be dis­ continued. 31 U.S.C. § 1242(c)(3) (emphasis added). The acknowledgment in subsection (c)(3) that the administrative pro­ ceedings are “dependent” on the proceedings in the triggering body is reflected generally in the grounds for resumption of suspended pay­ ments described above. Three of the five grounds are for all practical purposes beyond the control of the Secretary: the first, a compliance agreement, is grounds for resumption of payment only where it is entered into by the parties to the triggering lawsuit or complaint. The third ground depends on the recipient’s compliance as determined by the triggering body. And the fifth ground depends entirely on the action of an appellate tribunal in reversing the triggering holding. Although there is some independent role reserved to the agency with respect to the first, second, and fourth grounds, the agency is always bound to follow the lead of the triggering body whenever the merits of the discrimination issue are involved. The congressional concern to limit the independent enforcement au­ thority of the Secretary of the Treasury where there has been a prior holding of discrimination is reflected in the legislative history of the 1976 amendments to the Revenue Sharing Act. As with the Crime Control Act, Congress was aware of widespread dissatisfaction with the agency’s failure to use its suspension power even where the recipient agency had been adjudged by a federal court to be in violation of the law. See Hearings before the Subcomm ittee on Revenue Sharing o f the Senate Finance Committee, 94th Cong., 1st Sess. 173, 197, 214 (1975). See also United States v. City o f Chicago, 395 F. Supp. 329 (N.D. 111. 1975), a f f d 525 F.2d 695 (7th Cir. 1976). However, the Senate’s contri­ bution to the provisions that emerged in 1976 as the Conference “com­ promise” reflected equally strong concerns to minimize the burden of enforcement on ORS staff, and “to safeguard the due process rights of the recipient.” S. Rep. No. 1207, 94th Cong., 2d Sess. 29 (1976). These concerns resulted in the development of provisions limiting the discre­ 495 tion of ORS where a court or federal agency proceeding was in progress. The hearings in the Senate Finance Committee in August of 1976 took place after the House had reported out its bill amending the Revenue Sharing Act. That House bill contained nondiscrimination enforcement provisions virtually identical to those ultimately enacted in the Crime Control Act. The Senate committee was not satisfied with these provisions on two grounds: first, they placed too heavy an en­ forcement responsibility on the staff of the Office of Revenue Sharing, whose officers testified that they did not wish to assume a larger role in civil rights enforcement; and second, they failed to afford a recipient government adequate protection against administrative arbitrariness and duplicative hearings. The General Counsel of the Treasury Department testified that the elaborate procedures set forth in the House bill “would really require a multiplication of the staff with very little effect overall,” and that “the mechanics set up in the House-passed bill would create tremendous administrative burdens.” Hearings before the Senate C om m ittee on Finance on H .R. 13367, 94th Cong., 2d Sess. 48-49 (1976). He recommended that more reliance be placed on the ability of a court to monitor compliance, and less on the independent ability of ORS to enforce the law. The committee also heard testimony from a number of state and local government officials. The comments of Patrick Lucey, G overnor of Wisconsin, are typical: An ideal system of anti-discrimination enforcement would emphasize both due process and simplicity to preclude the federal government from arbitrarily suspending revenue sharing funds in any jurisdiction. Deadlines should be short, and findings of discrimination should be based on the administrative and judicial process which does not rely solely on the judgment of the Secretary of the T reasury. Id. at 89. Kenneth Gibson, Mayor of Newark, New Jersey, complained that “federal civil rights enforcement requirements are oftimes duplica­ tive and contradictory in nature.” He recommended that “a strategy be developed to consolidate and coordinate federal civil rights enforce­ ment in general and that due process be observed in any withholding of funds from local government.” Id. at 92-93. In a colloquy with Senator Packwood, Mr. Gibson and John Poelker, Mayor of St. Louis, dis­ cussed the due process problems inherent in simultaneous and poten­ tially contradictory administrative and judicial proceedings. Senator Packwood asked how to construct “a fair section” that would not “unduly penalize” a recipient during the pendency o f a court suit. Poelker recommended that “[i]t should be left up to the decision o f the court, not the Secretary. . . . As long as the suit is pending, and the 496 locality has not been found in violation until that time,” funds should not be suspended. Both Mayors Poelker and Gibson emphasized that in their opinion the inequity of terminating funds prior to “the end of the suit” outweighed the possibility of undesirable continuance of funds during its pendency. Id. at 77-78. The general criticism of. the House bill in the Senate committee led to the drafting of the provisions that eventually were enacted as § 122. The problems of delay, unfairness, and duplication that witnesses per-, ceived to be inherent in the House approach were sought to be re­ solved by provisions linking the ORS administrative role more closely with proceedings brought before courts and other agencies. The Con­ ference Committee accepted the Senate bill in all pertinent respects. H.R. Rep. No. 1720, supra, at 34. From the foregoing discussion it is clear that the terms of the civil rights enforcement provisions of the Revenue Sharing Act and their legislative history are substantially different from those of the Crime Control Act. We believe these differences warrant a different conclu­ sion with respect to the effect a stay on administrative fund suspension proceedings under the two acts. Under the Crime Control Act, once the administrative enforcement proceeding has been triggered by a “finding,” LEAA operates independently of the finding. Under the Revenue Sharing Act, ORS proceedings are “dependent” from begin­ ning to end on the concurrent judicial or federal agency proceedings. Since ORS is barred from making its own determination on the issue of discrimination once there has been a court determination, we think it must also respect the court’s subsequent decision to stay the effect of that determination. This is consistent with the Senate’s concern not to burden ORS staff with massive civil rights enforcement responsibilities, and to ensure recipient governments due process of law. In the case of LEAA, however, to the extent that that agency remains free to reach its own decision on the merits of the discrimination issues prior to' suspending funds, we do not believe the law requires it to honor a judicial stay—although we also think that it may do so in its discretion. L a r r y L . S im m s D eputy Assistant Attorney General Office o f Legal Counsel 497

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Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea The President has the authority to issue a proclamation extending the jurisdiction of the United States over the territorial sea from three to twelve miles out. The President also has the authority to assert the United States’s sovereignty over the extended ter­ ritorial sea, although most such claims in the nation’s history have been executed by treaty. There is a serious question whether Congress has the authority either to assert jurisdiction over an expanded territorial sea for purposes o f international law or to assert the United States’s sover­ eignty over it. The domestic law effect on federal statutes of the extension of the territorial sea is to be determined by examining Congress’s intent in enacting each affected statute. The extension of the territorial sea will not affect the Coastal Zone Management Act. October 4, 1988 M e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r D epa rtm en t o f S tate Introduction and Summary This responds to the requests, made by your Office and an inter-agency work­ ing group, for analysis of the constitutional and statutory questions raised by a proposed presidential proclamation to extend the territorial sea of the United States from its present breadth of three miles to twelve miles.1 In particular, we have been asked to address the following questions: First, does the President have the authority to declare, by presidential proclamation, the proposed extension? Second, assuming the President does have the authority, what effect would such a proclamation have on domestic legislation, such as the Coastal Zone Manage­ ment Act? Third, can the President limit the effect the proclamation will have on domestic legislation? We have also been asked to comment on H.R. 5069, a bill that would extend the territorial sea by legislation. We conclude that the President can extend the territorial sea from three to twelve miles by proclamation. While the most legally secure method of doing so would be by entering into a treaty with other nations on this issue, we believe that the President may extend the territorial sea by virtue of his constitutional role 1 Letter for Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, from Michael J. Matheson, Acting Legal Adviser (Aug. 15,1988). See also Memorandum for Michael A. Carvin, Deputy Assistant Attorney General, Office of Legal Counsel, from Kevin R. Jones, Deputy Assistant Attorney General, Office of Legal Policy (June 20, 1988) (raising similar questions on behalf of the inter-agency working group). 238 as the representative of the United States in foreign relations. The President’s for­ eign relations authority under the Constitution clearly permits his unilateral as­ sertion on behalf of the United States of jurisdiction over the territorial sea. Whether the President may individually assert sovereignty over the territorial sea is open to some question, although on the basis of several long-settled, historical examples of Presidents unilaterally claiming territory in this fashion, we believe that he may. Finally, we conclude that while Congress may establish state bound­ aries, there is a serious question whether it has the constitutional authority either to assert jurisdiction over an expanded territorial sea for international law pur­ poses or to assert sovereignty over it. With respect to the statutory issues, we believe that the better view is that the expansion of the territorial sea will not extend the coverage of the Coastal Zone Management Act (“CZMA”), 16 U.S.C. §§ 1451-1464, the statute that has been identified to us by the inter-agency working group as being of special concern. It must be acknowledged, however, that the effect of the proclamation on the CZMA is not entirely free from doubt and that the effect of the expansion on other federal statutes raises complex questions. We therefore recommend that the President seek legislation stating that federal statutes that rely upon the concept of the territorial sea are not affected by the President’s proclamation extending the territorial sea from three miles to twelve miles. Analysis I. The Territorial Sea In order to understand the legal issues raised by the proposal to extend the ter­ ritorial sea, we begin by examining three concepts: the meaning of the “territor­ ial sea” as that term is used in international law; the nature of the other areas of the sea over which a nation may assert some control under international law; and, finally, the distinction between a claim of sovereignty over the territorial sea and claims of jurisdiction over other areas of the sea. The territorial sea is the belt of water immediately adjacent to the coast of a nation. See, e.g., Restatement (Third) of The Foreign Relations Law of the United States § 51 l(a)(1986) (“Restatement Third”); 1 L. Oppenheim , International Law § 172, at 416 (H. Lauterpacht ed., 7th ed. 1948) (“Oppenheim”). The territorial sea extends from the nation’s coast to a distance of up to twelve miles from the coast, the maximum breadth now permitted by international law. Restatement Third § 511(a). Although the United States and some other nations continue to follow the historical practice of adhering to a three-mile territorial sea, most na­ tions now assert sovereignty over a twelve-mile territorial sea.2 2 “At the time this country won its independence from England there was no settled international custom or un­ derstanding among nations that each nation owned a three-mile water belt along its borders.” United Stales v. Cal­ ifornia, 332 U.S. 19, 32 (1947). By the beginning of the nineteenth century it was generally agreed that the terri­ torial sea extended as far as a cannon could shoot: three miles. See The Ann, 1 F. Cas. 926 (C.C.D. Mass. 1812) 239 A nation is sovereign in its territorial sea. See Convention on the Territorial Sea, pt. I, art. 1, 15 U.S.T. at 1608.3 Indeed, a nation has the same sovereignty over the territorial sea as it has over its land territory. See Restatement Third §512 (sovereignty is the same over the territorial sea as it is over land territory); Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234 (1804) (Marshall, C.J.) (a nation exercises absolute and exclusive authority within its own territory, including the territorial sea); The Ann, 1F. Cas. 926,927 (C.C.D. Mass. 1812) (No. 397) (Story, J.) (the territorial waters “are considered as a part of the territory of the sover­ eign”).4 By contrast, a nation is not sovereign over the high seas, which are the re­ mainder of the ocean beyond the territorial sea,5 and include areas such as the contiguous zone, the continental shelf, and the Exclusive Economic Zone (“EEZ”).6 Rather, a nation may assert more limited forms of jurisdiction in such areas. In the contiguous zone, for example, a nation may only exercise control incident to the application of its customs, fiscal, immigration, and sanitary regu­ lations in the territorial sea. Convention on the Territorial Sea, pt. II, art. 24 (1), 2 ( ... continued) (No. 397) (Story, J.)- See generally Sayre A. Swarztrauber, The Three-Mile Limit of Territorial Seas 23-35 (1972) (describing the history of the cannon-shot rule) (“Swarztrauber”). In the twentieth century, however, the intemational agreement on the three-mile temtorial sea collapsed. Swarztrauber, supra , at 131-251. The 1958 Conven­ tion on the Territorial Sea and the Contiguous Zone (“Convention on the Territorial Sea”), Apr 29, 1958, pt I, art. 3, 15 U.S.T. 1607, 1608, failed to establish an accepted limitation on the extent of the temtorial sea One hundred four nations now claim a twelve-mile tem torial sea, while only thirteen maintain the three-mile limit. U.S. Dep’t of State, Summary o f Territorial Sea, Fishery, and Economic Zone Claims 1 (1988) 3 The Convention on the Territorial Sea, to which both the Umted States and the Soviet Union are parties, provides, “ [t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the temtorial sea ” Convention on the Territorial Sea, pt. I, art. 1, 15 U.S.T. at 1608 (emphasis added). The character of the territorial sea as territory in the same sense that land is territory has not always been free from doubt. See United States v Louisiana, 363 U.S. 1, 34 (1960) (Harlan, J.) (“a [mar­ itime] boundary, even if it delimits territorial waters, confers nghts more limited than a land boundary”). Simi­ larly, Oppenheim observed in 1937 that “a m inonty of writers emphatically deny the territorial character of the maritime belt.” Oppenheim, supra, § 185, at 442-43. These statements, however, have given way to the modem view that a nation exercises the same full sovereignty over its territorial sea as it exercises over its territory on land. Convention on the Territorial Sea, pt. I, art I, 15 U.S T. at 1608; Restatement Third § 513(1 )(a). The no­ tion that a nation is less than fully sovereign over its territorial sea is now considered archaic. See Restatement Third § 512, reporters’ note 1. 4 The only qualification on a nation’s sovereignty within its temtorial sea is that all ships enjoy a nght of inno­ cent passage. Convention on the Temtorial Sea, pt. I, art 14(1), 15 U.S.T. at 1610; Restatement Third § 513(l)(a). The n ght of innocent passage is extended to warships so long as their passage is not prejudicial to the peace, good order, or security of the coastal state. Id , pt. 1, arts. 14(4), 22, 23, 15 U.S.T. at 1610, 1612. The nght o f innocent passage also extends to submarines as long as they are navigating on the surface and show their flag. Id , pt. I, art. 14(6), 15U S .T . at 1610. 5 The high seas are open to all nations; no nation may claim sovereignty over any part of the high seas Con­ vention on the High Seas, Apr. 29, 1958, art. 2, 13 U.S T. 2313, 2314. Both the United States and the Soviet Union are parties to the Convention on the High Seas. 6 The contiguous zone is the part of the high seas that borders the temtorial sea. Convention on the Temtorial Sea, pt. II, art 24(1), 15 U S.T. at 1612, Restatement Third § 511(b). The continental shelf includes the sea-bed and the subsoil o f the submarine areas that extend from the coast to the outer edge of the continental margin (or, if the continental margin does not extend so far, to a distance of not more than two hundred miles) Restatement Third § 51 1(c). The EEZ extends from the coast to no further than two hundred miles from the coast. Id. § 5 1 1(d). 240 15 U.S.T. at 1612.7 A nation’s authority over its continental shelf is restricted to the exploration and exploitation of natural resources. Restatement Third § 515(1). A nation’s authority within its EEZ is restricted to activities for economic ex­ ploration and exploitation, scientific research, and the protection of the environ­ ment. Id. § 514(1). Outside these areas, a nation has no jurisdiction over the ac­ tivities of other nations. Convention on the High Seas, Apr. 29, 1958, art. 2, 13 U.S.T. 2313,2314. In sum, the United States may exercise full sovereign power within its territo­ rial sea, while exercising more limited kinds of jurisdiction in three overlapping portions of the high seas—the contiguous zone, the continental shelf, and the EEZ.8 II. Constitutional Authority to Extend the Territorial Sea The question of where the power to extend the territorial sea resides under our constitutional scheme is novel and complex. The Constitution does not discuss the matter and there has been no direct precedent since President Washington first claimed a three-mile territorial sea in 1793. The proposed extension raises issues of the ways in which the United States, through the executive and legisla­ tive branches, may acquire territory and assert sovereignty over it, as well as ques­ tions about the President’s foreign relations power. With these concerns in mind, we conclude, for the reasons stated below, that the President undoubtedly has the power to assert jurisdiction over the territorial sea so as to establish a new territorial sea for the United States under international 7 The Convention on the Territorial Sea provides that “[t]he contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the tem tonal sea is measured.” Convention on the Territorial Sea, pt. II, art 24 (2). The proposed proclamation, however, states that “[t]he outer boundary of the contiguous zone of the United States henceforth extends 24 nautical miles from the baselines from which the territorial sea is mea­ sured ” Although customary international law now permits a nation to claim a contiguous zone up to twenty-four miles from the basel ines, see, e g , Restatement Third § 511 (b), the United States has declined to ratify the Law of the Sea Convention in which this new norm is codified. Therefore, the provision extending the contiguous zone should be deleted from the proclamation. It may be true that most countries have adopted the new twenty-four mile contiguous zone by ratifying the Law of the Sea Convention or would waive their right to protest such an extension. Nevertheless, such a procla­ mation would be inconsistent with our treaty obligations if the new contiguous zone were asserted against another party to the 1958 Convention on the Tem tonal Sea who wished to protest. We have been advised informally by the Department of State that the likelihood of protests is small. 8 Jessup best explams the difference between sovereignty over the temtorial sea and limited jurisdiction over other areas of the sea: There is a vital distinction between that mantime belt which is claimed as a part of the territory of the state and the limited rights of control or junsdiction claimed upon the high seas. The confusion is in­ tensified by the disagreement among text wnters as to the nature of the control or junsdiction exer­ cised over tem tonal waters. If one starts with the proposition that the littoral state has only a “bundle of servitudes” over the tem tonal waters, one is naturally unable to see much distinction between claims to a three-mile and to a twelve-mile zone. Similarly if one posits merely certain nghts of control or ju ­ nsdiction therein. But if, on the other hand, one maintains that each maritime state may rightly claim as a part of its temtory a certain mantime belt, then the distinction becomes clear. It is this latter hy­ pothesis which is believed to be sound, histoncally, theoretically and according to international prac­ tice Phillip C. Jessup, The Law o f Territorial Waters and Maritime Jurisdiction xxxiii - xxxiv (1927). 241 law. We also believe, although the issue is not entirely free from doubt, that he has the power to assert sovereignty over the territorial sea as a function of his power to acquire territory on behalf of the United States. Finally, we doubt that Congress has constitutional authority to assert either sovereignty over an ex­ tended territorial sea or jurisdiction over it under international law on behalf of the United States. A. The President’s Power to Assert Jurisdiction The President’s power to assert jurisdiction over the territorial sea is based on his constitutional power over foreign relations.9 The President’s constitutional role as the sole representative of the United States in foreign relations has long been recognized. In the words of John Marshall, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign na­ tions.” 10 Annals of Cong. 613 (1800).10 Thus, it is not surprising that Justice Sutherland explained the nature of the President’s authority in expansive terms: In this vast external realm, with its important, complicated, deli­ cate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of leg­ islative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable pro­ visions of the Constitution. 9 It is axiomatic that under our Constitution the President has been given broad authority over the conduct of the N ation’s foreign relations. United States v Curtiss-Wright Export Corp., 299 U.S. 304, 315-22 (1936). This au­ thority arises from a number of the President’s constitutional powers: as Commander-in-Chief of the Nation’s mil­ itary forces, art. II, § 2, cl 1; as the individual charged with the power to negotiate treaties, art. II, § 2, cl. 2; and as the individual who receives ambassadors and other foreign representatives, art. II, § 3. O f course, these specific provisions are supplemented by the general provision of Article II, Section I, Clause 1, which provides that “[t]he executive power shall be vested in a President of the United States of America ” Additionally, the United States obtained inherent sovereign authonty over foreign relations when it secured its independence from Great Bntain, Curtiss-Wright, 299 U.S. at 318, and the President exercises many of the powers that were formerly vested in the British crown, and that are not enumerated in the Constitution as belonging to Congress. See, e.g., 1 William Blackstone, Commentaries on the Laws of England 257 (1771 ed ). 10 Marshall made this remark as a member o f the House of Representatives dunng a debate concerning an ex­ tradition ordered by President John Adams. See Edward S. Corwin, The President: Office and Powers, 1787-1984 at 207-08 (Randall W. Bland et al. eds, 5th ed. 1984). 242 United States v. Curtiss-Wright Export Corp., 299 U.S. 304,319-20(1935). Asa leading constitutional scholar concluded, “[ tjhere is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation's intermediary in its dealing with other n a tio n s Edward S. Corwin, The President: Office and Powers, 1787-1984 at 214 (footnote omitted). The Supreme Court addressed the difficult issue of the relationship between the President’s foreign relations power and his power to assert jurisdiction over the territorial sea on behalf of the United States in United States v. Louisiana, 363 U.S. 1 (1960) (Harlan, J.). In that case, which involved rights under the Sub­ merged Lands Act, the Court considered the power to fix state boundaries for do­ mestic purposes and the power to fix them for international purposes. The exec­ utive branch had argued that no state could have a boundary of more than three miles because a state boundary must coincide with the three-mile limit of our claim to the territorial sea in order to avoid international embarrassment. The Court rejected that argument as an oversimplification of the issue. Justice Har­ lan described the relationship between the constitutional powers of the executive and the legislature branches as follows: The power to admit new States resides in Congress. The Pres­ ident, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the for­ mer springs the power to establish state boundaries; from the lat­ ter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such determination is, of course, binding on the States. The exer­ cise of Congress’ power to admit new States, while it may have international consequences, also entails consequences as between Nation and State. We need not decide whether action by Congress fixing a State’s territorial boundary more than three miles beyond its coast constitutes an overriding determination that the State, and therefore this country, are to claim that much territory against for­ eign nations. It is sufficient for present purposes to note that there is no question of Congress’ power to fix state land and water boundaries as a domestic matter. Id. at 35 (emphasis added). The Court thus established two principles: first, that determination of the scope of the territorial sea as against foreign nations is one of the President’s constitu­ tional powers, and second, that establishing state boundaries is one of Congress’ constitutional powers. The Court left unanswered the question of whether con­ gressional action fixing a state boundary could result in a claim on behalf of the United States for the purpose of international law. The Court proceeded to care­ fully distinguish between the state boundaries established for domestic purposes by the Submerged Lands Act and the boundary of the territorial sea established by the President for international purposes. Id. at 33-36. The Court then held that 243 the state boundary for domestic purposes can be established by Congress irre­ spective of the limit of the territorial sea. Id. at 35-36. Thus, it is clear that under Louisiana the President may use his power in the realm of foreign affairs to assert jurisdiction over the territorial sea on behalf of the United States as against other nations. We understand that this is the central purpose of the proposed proclamation and we have no doubt that the President may issue such an assertion of jurisdiction. Indeed, history supports the Court’s statement in Louisiana that the President’s constitutional position as the representative of the United States in foreign rela­ tions authorizes him to make claims on behalf of the United States concerning the territorial sea. The primary example, of course, is the first claim of a threemile territorial sea made on behalf of the United States by then-Secretary of State Thomas Jefferson in 1793. France, Great Britain, and Spain—all of which held territory in North America—were engaged in maritime hostilities off our Atlantic coast, an extension of wars ongoing in Europe. As part of an effort to undermine our policy of neutrality, France pressured us to state the extent of our territorial sea. See Sayre A. Swarztrauber, The Three-Mile Territorial Sea 56-59 (1972). In response, and although “neither Washington nor Jefferson wished to be hur­ ried” into establishing the limit of our claim, President Washington instructed Jefferson to make an initial claim for the United States. Id. at 57.'1Jefferson sent letters to both the French and British Ministers fixing a provisional limit. The let­ ter to the British minister states: SIR: The President of the United States, thinking that, before it shall be finally decided to what distance from our sea shores the territorial protection of the United States shall be exercised, it will be proper to enter into friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts, and relying that convenient occasions may be taken for these hereafter, finds it necessary in the mean time to fix provi­ sionally on some distance for the present government of these questions. You are sensible that very different opinions and claims have been theretofore advanced on this subject. The greatest dis­ tance to which any respectable assent among nations has been at any time given, has been the extent of the human sight, estimated at upward of twenty miles, and the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea-league. Some intermediate dis­ tances have also been insisted on, and that of three sea-leagues has some authority in its favor. The character of our coast, re­ 11 One month before Jefferson did so, President Washington observed, “[tjhree miles will, if I recollect nghtly, bnng [the captured Brigantine] Coningham within the rule of some decisions, but the extent of Temtorial jurisdic­ tion at Sea, has not yet been fixed, on account o f some difficulties which occur in not being able to ascertain with precision what the general practice of Nations in this case has been.” Washington to Governor Thomas Sim Lee, Oct. 16, 1793, reprinted in 33 The Writings o f George Washington 132 (John C. Fitzpatrick ed., 1940) 244 markable in considerable parts of it for admitting no vessels of size to pass near the shores, would entitle us, in reason, to as broad a margin of protected navigation as any nation whatever. Reserv­ ing, however, the ultimate extent of this for future deliberation, the President gives instructions to the officers acting under his authority, to consider those heretofore given them as restrained for the present to the distance of one sea-league or three geo­ graphical miles from the sea-shores. This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and naviga­ tion, and is as little, or less, than is claimed by any of them on their own coasts. Letter from Mr. Jefferson to British Minister George Hammond, Nov. 8, 1793, reprinted in H.R. Doc. No. 324, 42d Cong., 2d Sess. 553-54 (1872).(emphasis added). Secretary of State Jefferson’s letters, stating the President’s determination, have traditionally been viewed as the vehicle by which the United States claimed a three-mile territorial sea. See, e.g., United States v. California , 332 U.S. 19, 33 n.16 (1947). Thus, the President was responsible for the initial assertion of ju­ risdiction over the territorial sea on behalf of the United States. Moreover, Jef­ ferson indicated that the executive reserved the right to extend the territorial sea in the future.12 We believe that the context makes it clear that the assertion of a claim over the territorial sea was done as a function of the President’s power as the representative of the United States in foreign relations, and that the power to do so has been confirmed by the Supreme Court in Louisiana. The actions of two other Presidents who individually asserted control over sec­ tions of the high seas provide further support for the argument that the President’s constitutional power as the representative of the United States in foreign rela­ tions includes the authority to claim portions of the sea for the United States for purposes of international law. In 1945 President Truman issued two proclama­ tions, one concerning the continental shelf and another establishing a fisheries conservation zone. In the Continental Shelf Proclamation, President Truman stated that the “Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf.. . [as] subject to its jurisdiction and control.” Proclamation No. 2667, 3 C.F.R. 67 (1943-1948). This Office ap­ proved the Proclamation and advised that it was lawful both as a statement of na­ tional policy in foreign affairs and as an expansion of the territorial jurisdiction of the United States. Memorandum for Harold W. Judson, Assistant Attorney General, Office of Assistant Solicitor General, from William H. Rose (Sept. 16, 12 Not only does the letter imply as much, but also Jefferson as President reportedly proposed to claim a broader tem tonal sea, emphasizing that in the 1793 letter he had “taken care expressly to reserve the subject for future con­ sideration, with a view to this same doctrine for which he now contends.” 1 Memoirs o f John Quincy Adams 375-7 6 (Charles Francis Adams ed. 1874) (quoting a conversation with Jefferson). 245 1945). On the same day, President Truman also issued a proclamation which stated that the United States regarded it as proper to establish fishery conserva­ tion zones in certain areas of the high seas contiguous to the United States. Procla­ mation No. 2668, 3 C.F.R. 68 (1943-1948). Where the fishing was by United States nationals alone, “the United States regards it as proper to establish ex­ plicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States.” Id. The Proclamation then went on to declare that the United States’ policy with respect to zones where na­ tionals of other countries also fished would be determined by agreements be­ tween the United States and foreign states. This Proclamation, with its explicit statement of how the issue would be resolved with respect to other nations, was clearly based on the President’s constitutional power to represent the United States’ interests in the international arena. Finally, in 1983 President Reagan used the same power when he proclaimed “the sovereign rights and jurisdiction of the United States” to an exclusive economic zone extending two hundred miles from the coast of the United States. Proclamation No. 5030, 3 C.F.R. 22 (1984).13 All of these precedents illustrate that the President’s constitutional role as the repre­ sentative of the United States in foreign relations permits him to proclaim juris­ diction over certain areas of the sea, consistent with international law, on behalf of the United States. B. The President’s Power to Assert Sovereignty The more difficult issue is whether the President may assert sovereignty over the territorial sea.14 The key difference between this and an assertion of juris­ diction is that an assertion of sovereignty means that the territorial sea would be considered a part of the territory of the United States— i.e., as much a part of the continental United States as a piece of land. While originally subject to doubt by some, the modem view is that the territorial sea is part of a nation and that a na­ tion asserts full sovereignty rights over its territorial sea.15 The issue therefore becomes whether the President has the authority to assert sovereignty over terri­ tory on behalf of the United States. As indicated below, Presidents have asserted this authority. Based on this historical record, we conclude that the President act­ ing alone may assert sovereignty over an extended territorial sea on behalf of the United States, as a matter of discovery and occupation. The Constitution does not specifically address the power to acquire territory on 13 The President is also authorized to establish “defensive sea areas” by executive order for purposes of national defense. 18 U.S.C. § 2152. See also U.S. Naval War College, International Law Situation and Documents— 1956 ai 603-04 (1957) (listing defensive sea areas established by the President). 14 We believe an assertion of sovereignty over the territorial sea would be tantamount to, and would raise the sam e considerations as, the acquisition of land territory. See supra note 3. Because we believe that the territorial sea is probably territory in the same sense that land is territory, we must examine the means by which the United States may acquire territory. 15 See supra note 3. 246 behalf of the United States.16 Nonetheless, it is now agreed that the United States has the power to acquire territory as an incident of national sovereignty. See, e.g., MormonChurch v. UnitedStates, 136U.S. 1,42 (1890).17 The United States has acquired territory through cession, purchase, conquest, annexation, treaty, and dis­ covery and occupation.18These methods are permissible under international law19 and have been approved by the Supreme Court.20 The executive and the legisla­ ture have performed different roles in the acquisition of territory by each of these means. Unfortunately, the historical practice does not supply a precise explanation of where the Constitution places the power to acquire territory for theUnited States. 1. Assertion of Sovereignty by Treaty The clearest source of constitutional power to acquire territory is the treaty making power. Under the Constitution, the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” U.S. Const, art. II, § 2, cl. 2. It is pursuant to that power that the United States has made most acquisitions of territory, as a result of either purchase or conquest.21 Thus, “[i]t is too late in the history of the United 16 As Senator (later Justice) Sutherland observed, “[tjhere is no provision in the Constitution by which the na­ tional government is specifically authorized to acquire territory; and only by a great effort of the imagination can the substantive power to do so be found in the terms of any or all of the enumerated powers.” George Sutherland, Constitutional Power and World Affairs 52 (1919) 17 The authonty of the United States to acquire territory was seriously questioned in the years immediately fol­ lowing the adoption of the Constitution. The argument against federal authority to acquire territory relied upon the Tenth Amendment provision that the powers not delegated to the federal government are reserved to the states or to the people 2 Joseph Story, Commentaries on the Constitution of the United States § 1317 (2d ed. 1851). The Louisiana Purchase afforded the most urgent occasion for the consideration of the issue. Secretary of the Treasury Gallaun advised President Jefferson that “the power of acquinng territory is delegated to the United States by the several provisions which authorize the several branches of government to make war, to make treaties, and to gov­ ern the territory of the Union ” Letter from Gallatin to Jefferson, Jan 13, 1803, reprinted in 1 Writings of Albert Gallatin 114 (Henry Adams ed. 1879) Jefferson himself was more concerned about his authority to incorporate the territory into the United States than the authority to acquire the tem tory See Letter from Jefferson to Gallatin, Jan 1803, reprinted in 1 Writings o f Albert Gallatin, supra, at 115. See also Downes v. Bidwell, 182 U.S. 244, 322-33 (1901) (White, J , concumng). As the United States conunued to acquire large areas of land, the power to acquire territory was taken to have been settled during the nineteenth century. See 2 J. Story, supra, § 1320. 18 Tem tory is acquired by discovery and occupation where no other recognized nation asserts sovereignty over such temtory. In contrast, when temtory is acquired by treaty, purchase, cession, or conquest, it is acquired from another nation 19 See. e g , Oppenheim, supra , § 211, at 498. 4 20 The Supreme Coun has acknowledged the authonty to acquire temtory by these methods See, e g , CurtissWright, 299 U S. at 318 (“The power to acquire territory by discovery and occupation . . exist[s] as inherently in­ separable from the conception of nationality.”), American Ins Co v Canter , 26 U.S. (1 Pet.) 511, 542 (1828) (Mar­ shall, C.J ) (“The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquinng temtory, either by conquest or by treaty.”) 21 See Treaty Between the United States and the French Republic, Apr. 3 0 ,1803, an. 1,8 Stat. 200,201 (Louisiana Purchase); Treaty of Amity, Settlement, and Limits, Between the Umted States of Amenca and his Catholic Majesty, Feb 22,1819, art. 2 ,8 Stat. 252,253 (cession of Honda by Spain); Treaty with Great Britain, June 15,1846, art 1,9 Stat. 869 (Oregon Compromise), Treaty of Peace, Friendship, Limits and Settlement between the United States of Americaand the Mexican Republic, Feb 2,1848, an. 5,9 Stat 922,926-27 (cession of California by Mexico); Treaty with Mexico, Dec 30, 1853, art 1, lOStat. 1031, 1032 (Gadsden Purchase); Treaty with Russia, Mar 30, 1867, art. 1, 15Stat. 539(cessionof Alaska by Russia); Isthmian Canal Convention, Nov. 18, 1903, arts. 2 & 3,33 Stat. 2234, 2234—35 (cession of Panama Canal Zone by Panama), Convention Between the United States and Denmark for Ces­ sion of the Danish West Indies, Aug 4,1916, art. 1,39 Stat. 1706 (purchase of the Virgin Islands from Denmark). 247 States to question the right of acquiring territory by treaty.” Wilson v. Shaw, 204 U.S. 24, 32 (1907). There is no doubt that the United States can acquire territory, including the territorial sea, by treaty. 2. Assertion of Sovereignty by the President Acting Alone - Discovery and Occupation The more difficult issue is whether the President, acting alone, may acquire territory for the United States. Because of several venerable, and unchallenged, historical examples of such acquisitions, we believe that he can, even though the practice may be subject to some constitutional question. First and foremost, it can be reasonably argued that President Washington and Secretary of State Jef­ ferson in making the original claim to the territorial sea relied on the President’s constitutional power as the representative of the United States in foreign affairs to proclaim sovereignty, and not simply jurisdiction, over unclaimed territory. Although we have not found any evidence of Jefferson’s view of the nature of the rights of the United States in the territorial sea, both Chief Justice Marshall and Justice Story viewed the territorial sea as part of the territory of the United States. See Church v. Hubbart, 6 U.S. (2 Cranch) at 234 (Marshall, C.J.); The Ann, 1 F. Cas. at 926-27 (Story, J.). Similarly, there are two instances in which the President acquired territory act­ ing alone by discovery and occupation.22 In 1869, “[t]he Midway Islands... were formally taken possession of in the name of the United States ... by order of the Secretary of the Navy.” S. Rep. No. 194,40th Cong., 3d Sess. 1 (1869). See also S. Exec. Doc. No. 79, 40th Cong., 2d Sess. (1868). And “[t]he United States claim[ed] jurisdiction . .. over . . . Wake’s Island . . . possession of which was taken by the U.S.S. Bennington on January 17,1899.” Letter from Mr. Hill, As­ sistant Secretary of State, to Mr. Page, Feb. 27, 1900, 243 MS Dom. Let. 246, quoted in 1 J. Moore, International Law Digest § 111, at 555 (1906) (“Moore”).23 The acquisition of Midway and Wake Islands by the Navy confirms that the President has the constitutional authority to acquire territory by discovery and occupation. Professor Henkin, for example, has stated that the President can “ac­ quire territory by discovery or prescription.” Louis Henkin, Foreign Affairs and , 22 There is a third example of unilateral acquisition by the President by executive agreement. In this regard, Pres­ ident Fillmore entered into an executive agreement m 1850 in which Great Britain “cede[d] to the United States such portion of the Horseshoe Reef as may be found requisite” for a lighthouse in Lake Erie near Buffalo Proto­ col of a Conference Held at the Foreign O ffice, Dec 9, 1850, 18 Stat. (Part 2) 325-26. See also 5 Treaties and Other International Acts o f the United States o f America 905-28 (Hunter Miller ed., 1937) (describing the acqui­ sition o f Horseshoe Reef). The acceptance o f the cession appears to have been made pursuant to the President’s power as representative of the United States in foreign affairs. 23 The acquisition o f American Samoa is frequently cited as evidence of the executive’s independent authonty to acquire territory for the United States. See, e g , \ Westel Woodbury Willoughby, The Constitutional Law of the United States § 240a (2d ed 1929) President McKinley did assert control over American Samoa by executive or­ der in 1900. He acted, however, one month after the Senate ratified a treaty in which Great Britain and Germany renounced “in favor of the United States of America” any rights they had to claim the islands. Convention between the United States, Germany, and Great Britain, Dec. 2, 1899, art. II, 31 Stat. 1878, 1879 (1900). Prior to the treaty, the United States, Great Britain, and Germany had failed in an effort to jointly manage the Samoan Islands. See generally American Samoa A General Report by the Governor 22-43 (1927), Moore, supra, § 110. The existence of the treaty partially undermines the claim that the acquisition of American Samoa is an example of acquisition by executive action alone. 248 the Constitution 48 (1972). Another writer concluded that “[t]he President is com­ petent to recognize the acquisition of territory by discovery and occupation.” Q. Wright, The Control of American Foreign Relations § 197, at 274 (1922). More­ over, it appears that the power to acquire territory by discovery and occupation “flows from [the President’s] constitutional position as the representative organ of the government” for purposes of foreign affairs. Id. § 73, at 134 n.12.24 Practical considerations also illuminate why the President’s power to assert sov­ ereignty as a matter of discovery and occupation has gone unchallenged. As our representative in foreign affairs, the President is best situated to announce to other nations that the United States asserts sovereignty over territory previously un­ claimed by another nation. With Midway and Wake Islands, for example, the Pres­ ident— through the Navy—acted because there was no other governmental repre­ sentative present who could assert sovereignty on behalf of the United States. The President’s authority to acquire territory by discovery and occupation sug­ gests to us that the President may assert sovereignty over the contemplated ex­ tension of the territorial sea. When territory is acquired by discovery and occu­ pation, it is acquired by the assertion of the acquiring nation that it is henceforth sovereign in that territory. Similarly, when a nation asserts sovereignty over an extended territorial sea, it acquires territory which is not subject to the sover­ eignty of another nation. Accordingly, the considerations which explain why the President’s constitutional position as the representative of the United States in foreign affairs allows him to acquire territory by discovery and occupation coun­ sel that the same constitutional status allows him to proclaim sovereignty over an extended territorial sea. Justice Harlan’s statement for the Court in Louisiana that the power to assert territorial rights in the sea derives from the President’s power as the constitu­ tional representative of the United States in foreign affairs also appears to affirm the President’s authority to assert sovereignty over the territorial sea. Even though Justice Harlan expressed doubt whether the territorial sea was “territory,”25 he 24 One writer, however, has concluded that the President cannot acquire territory without congressional approval See Lawson Reno, The Power of the President to Acquire and Govern Territory, 9 Geo Wash. L. Rev. 251, 285 (1941). Reno did not discuss the acquisition of Horseshoe Reef. He believed that legislative approval, albeit some­ times implicit, accompanied each of the other acquisitions of temtory by the executive. He explained that the United States’ sovereignty over Midway derived from the annexation of Hawaii, which had been sovereign over the island before annexation Reno, supra, at 275-76. He also asserted that the acquisition of Wake Island was unimportant because of the uncertainty surrounding the occupation by and claims of the United States in those territories Id at 276-77. Finally, he justified the United States' sovereignty over American Samoa as supported by implied con­ gressional approval. Id at 279-81. 25 Justice Harlan wrote, “The concept of a boundary in the sea,” as opposed to one between two states on land, “is a more elusive one ” Louisiana, 363 U S. at 33. He explained: The extent to which a nation can extend its power into the sea for any purpose is subject to the con­ sent of other nations, and assertions of jurisdiction to different distances may be recognized for dif­ ferent purposes. In a manner of speaking, a nation which purports to exercise any nghts to a given dis­ tance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even if it delimits tem tonal waters, confers rights more limited than a land boundary. It is only in a very special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters results in the establishment of a “national boundary ” Id at 34 (footnote omitted) Justice Harlan’s view of the nature of the territorial sea as being something less than ter­ ritory has since been rejected by the United States as well as modem international law scholars, see supra note 3 249 clearly indicated that the President has the power “to determine how far this coun­ try will claim territorial rights in the marginal sea as against other nations."26 In sum, we believe that the President may assert jurisdiction over an expanded territorial sea. Further, we believe that he may also assert sovereignty over an ex­ panded territorial sea. To be sure, the historically more prevalent practice of ter­ ritorial acquisition has been by treaty, but this in itself does not deny the author­ ity of the President to make an assertion of sovereignty as a matter analogous to discovery and occupation. Nevertheless, to bolster the sufficiency of the proposed proclamation, we strongly recommend that the proclamation state both that it is asserting jurisdiction and that it is asserting sovereignty over the expanded terri­ torial sea.27 We believe that this formulation provides the best defense to any hy­ pothetical challenge to the President’s exercise of power—a challenge which, judging by the historical record, we would anticipate to be unlikely. C. Congress’ Power to Assert Sovereignty over the Territorial Sea We next consider whether H.R. 5069, which provides for the establishment of a territorial sea twelve miles wide, is within the constitutional power of Congress. H.R. 5069 states, “The sovereignty of the United States exists in accordance with international law over all areas that are part of the territorial sea of the United States.” H.R. 5069, 100th Cong., 2d Sess., § 101(b) (1988). Congress, however, has never asserted jurisdiction or sovereignty over the territorial sea on behalf of the United States 28 Because the President—not the Congress—has the constitu­ tional authority to act as the representative of the United States in foreign affairs, Congress may proclaim jurisdiction or sovereignty over the territorial sea for in- 26 Id at 35 (emphasis added). There may also be an argument that President Washington’s unilateral assertion o f sovereignty over the original territorial sea is now underpinned by longstanding congressional acquiescence. In addition, when the Senate ratified the Convention on the Territorial Sea, it agreed that the United States should have a tem tonal sea and it did not place a limit on its breadth. Further, it agreed that the United States was sovereign over the tem tonal sea — which as a matter of fact, for the United Slates, was the sea that President Washington had claimed on behalf of the United States Thus, there is at least arguable recognition by the legislature of the Presi­ dent ’s power in its explicit desire that the United States exercise full sovereignty over the temtorial sea claimed by our first President. 27 For example, the proclamation might state. “In order to assert jurisdiction as against foreign nations and to assert sovereignty on behalf of the United States . 28 Congress has occasionally considered legislation to extend the temtorial sea of the United Slates. E.g., H.J. Res. 308, 91st Cong., 1st Sess. (1969), S.J. Res. 8 4 ,91st Cong., 1st Sess (1969); S J. Res 136, 90th Cong., 2d Sess (1968), H.R 10492, 88th Cong., 2d Sess (1964). None of these bills has been enacted O f course, Congress has enacted statutes with respect to aspects of the United States’ junsdiction over the territorial sea and the high seas. A 1794 federal statute provided for federal court jurisdiction within the three-mile tem tonal sea. Act of June 5, 1794, ch 51, § 6, 1 Stat. 384. Many federal statutes govern conduct in various areas of our offshore waters. See, e.g , 14 U.S.C. § 89 (Coast Guard authonty within waters over which the United States has junsdiction for law enforcement purposes); 19 U.S.C. § 1581(a) (Customs authority within the “customs wa­ ters” as defined by 1 9 U S C .§ 14010)) Additionally, Congress acted to implement PresidentTruman’scontinental'shelf proclamation for domestic law purposes by enacting the Outer Continental Shelf Act, 43 U.S C. §§ 1331 -1356, which claimed submerged lands for the federal government. However, all these statutes were enacted after the President’s initial proclamations of sovereignty or junsdiction within the area on behalf of the United States. 250 temational law purposes only if it possesses a specific constitutional power there­ for.29 We have identified two instances in which the United States acquired territory by legislative action. In 1845, the United States annexed Texas by joint resolu­ tion. Joint Res. 8, 5 Stat. 797 (1845). Several earlier proposals to acquire Texas after it gained its independence from Mexico in 1836 had failed. In particular, in 1844 the Senate rejected an annexation treaty negotiated with Texas by President Tyler. 13 Cong. Globe, 28th Cong., 1st Sess. 652 (1844). Congress then consid­ ered a proposal to annex Texas by joint resolution of Congress. Opponents of the measure contended that the United States could only annex territory by treaty. See, e.g., 14 Cong. Globe, 28th Cong., 2d Sess. 247 (1845) (statement of Sen. Rives); id. at 278-81 (statement of Sen. Morehead); id. at 358-59 (statement of Sen. Crittenden). Supporters of the measure relied on Congress’ power under Ar­ ticle IV, Section 3 of the Constitution to admit new states into the nation. See, e.g., id. at 246 (statement of Sen. Walker); id. at 297-98 (statement of Sen. Wood­ bury); id. at 334-36 (statement of Sen. McDuffie). These legislators emphasized that Texas was to enter the nation as a state, and that this situation was therefore distinguishable from prior instances in which the United States acquired land by treaty and subsequently governed it as territories. Congress’ power to admit new states, it was argued, was the basis of constitutional power to affect the annexa­ tion. Congress approved the joint resolution, President Polk signed the measure, and Texas consented to the annexation in 1845. The United States also annexed Hawaii by joint resolution in 1898. Joint Res. 55, 30 Stat. 750 (1898). Again, the Senate had already rejected an annexation treaty, this one negotiated by President McKinley with Hawaii. And again, Con­ gress then considered a measure to annex the land by joint resolution. Indeed, Congress acted in explicit reliance on the procedure followed for the acquisi­ tion of Texas. As the Senate Foreign Relations Committee report pronounced, “[t]he joint resolution for the annexation of Hawaii to the United States . . . brings that subject within reach of the legislative power of Congress under the precedent that was established in the annexation of Texas.” S. Rep. No. 681, 55th Cong., 2d Sess. 1 (1898). This argument, however, neglected one signifi­ cant nuance: Hawaii was not being acquired as a state. Because the joint reso­ lution annexing Texas relied on Congress’ power to admit new states, “the method of annexing Texas did not constitute a proper precedent for the annex­ ation of a land and people to be retained as a possession or in a territorial con­ dition.” Andrew C. McLaughlin, A Constitutional History of the United States 504 (1936). Opponents of the joint resolution stressed this distinction. See, e.g., 29 Congress has certain constitutional powers that can affect the claims of the United States over the seas. For example. Congress has the power to regulate foreign commerce, art. I, § 8, cl. 3, the power to define and punish crimes committed on the high seas and offenses against international law, art. I, § 8, cl. 10, and the power to de­ clare war, art. I, § 8, cl. 11. Congress also exercises considerable authority over the temtory of the United States. The Constitution authorizes Congress to admit new states, art. IV, § 3, cl 1, and to dispose of and regulate the prop­ erty of the United States, art. IV, § 3, cl. 2. 251 31 Cong. Rec. 5975 (1898) (statement of Rep. Ball).30 Moreover, as one con­ stitutional scholar wrote: The constitutionality of the annexation of Hawaii, by a simple leg­ islative act, was strenuously contested at the time both in Con­ gress and by the press. The right to annex by treaty was not de­ nied, but it was denied that this might be done by a simple legislative act... . Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its opera­ tion to the territory of the State by whose legislature it is enacted. 1 Westel Woodbury Willoughby, The Constitutional Law of the United States § 239, at 427 (2d ed. 1929). Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. The stated justification for the joint resolu­ tion—the previous acquisition of Texas—simply ignores the reliance the 1845 Congress placed on its power to admit new states. It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint reso­ lution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an ex­ tended territorial sea.3v We believe that the only clear congressional power to acquire territory derives from the constitutional power of Congress to admit new states into the union. The admission of Texas is an example of the exercise of this power. Additionally, the Supreme Court in Louisiana recognized that this power includes “the power to establish state boundaries.” 363 U.S. at 35. The Court explained, however, that it is not this power, but rather the President’s constitutional status as the repre­ 30 Representative Ball argued: Advocates of the annexation of Texas rested their case upon the express power conferred upon Con­ gress in the Constitution to admit new States Opponents of the annexation of Texas contended that even that express power did not confer the right to admit States not carved from tem tory already be­ longing to the United States or some one o f the States forming the Federal Union. Whether, therefore, we subscribe to the one or the other school of thought in that matter, we can find no precedent to sus­ tain the method here proposed for admitting foreign temtory. 31 Cong. Rec 5975 (1898). He thus characterized the effort to annex Hawaii by joint resolution after the defeat of the treaty as “a deliberate attempt to do unlawfully that which can not be lawfully done ” Id 31 Additionally, Congress has authonzed the extension of United States’ control to guano islands discovered and occupied by citizens of the United States The Guano Islands Act provided: Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States. 48 U.S.C. § 1411. In Jones v. United States, 137 U.S. 202 (1890), the Supreme Court held that the statute was valid and that Navassa, a guano island claimed under that statute, “must be considered as appertaining to the United States.” Id. at 224. The Guano Islands Act does not appear to be an explicit claim of territory by Congress. 252 sentative of the United States in foreign affairs, which authorizes the United States to claim territorial rights in the sea for the purpose of international law. The Court left open the question of whether Congress could establish a state boundary of more than three miles beyond its coast that would constitute an overriding claim on behalf of the United States under international law. Id. Indeed, elsewhere in its opinion the Court hints that congressional action cannot have such an effect. Id. at 51. In the time permitted for our review we are unable to resolve the matter de­ finitively, but we believe that H.R. 5069 raises serious constitutional questions. We have been unable to identify a basis for the bill in any source of constitutional authority. Because of these concerns, we believe that, absent a treaty, the pro­ posed proclamation represents the most defensible means of asserting sovereignty over the territorial sea. III. The Proclamation’s Effect on Domestic Law In this section, we consider what effect the proposed proclamation will have on domestic law. By its terms, the proclamation will make clear that it is not in­ tended to affect domestic law. Congress may, however, have enacted statutes that are intended to be linked to the extent of the United States’ territorial sea under international law. The issue, therefore, in determining the effect of the procla­ mation on domestic law is whether Congress intended for the jurisdiction of any existing statute to include an expanded territorial sea. Thus, the question is one of legislative intent.32 A. Statutory Intent The statutes potentially affected by the proclamation are too numerous to con­ sider individually in the time permitted. However, we can discuss some of the considerations relevant to a determination whether Congress intended the appli­ cation of a statute to be affected by a change in the breadth of the United States’ territorial sea, and then make such a determination with respect to the particular statute of interest to the inter-agency working group—the Coastal Zone Man­ agement Act, 16 U.S.C. §§ 1451-1464 (“CZMA” or “Act”). The most important consideration in determining whether Congress intended a statute to be affected by a change in the breadth of the territorial sea is the lan­ guage of the statute. If a statute includes a provision that simply overlaps or co­ incides with the existing territorial sea—such as the provision “three miles sea­ ward from the coast of the United States”—the operation of the statute will 32 While the Constitution provides the President with the power to represent the United States in foreign affairs and thus to assert a claim under Internationa] law, see supra pp. 241-50, the Constitution grants Congress the power to enact statutes with domestic effect within the areas of its enumerated powers. Congress could enact legislation stating that the area affected by a statute could be expanded either by presidential or congressional action The Pres­ ident can be delegated the authonty to fill in the details of a statute, such as determining the extent of a statute’s ju­ nsdiction. Congress can always amend a statute, through passage of a new law, to expand its coverage. 253 probably not, in the absence of special circumstances, be affected by a change in the territorial sea. Indeed, the statute does not appear to invoke the concept of the territorial sea at all, except for denoting an area that coincides with the territor­ ial sea. A similar case is presented by a statute that uses the term “territorial sea” but then defines it as “three miles seaward from the coast of the United States.” Although the statute refers to the territorial sea, the definition reveals that Con­ gress understood the area involved as the three-mile territorial sea in existence when the statute was enacted. Of course, the more difficult cases will arise where Congress has used more ambiguous language. The best example is a statute which refers to the term “ter­ ritorial sea” without further defining it. Congress could have intended the term to refer to the three miles that history and existing practice had defined or Con­ gress could have intended the statute’s jurisdiction to always track the extent of the United States’ assertion of territorial sea under international law. A determi­ nation of congressional intent in these circumstances will therefore require fur­ ther inquiry into the purpose and structure of a particular statute, and may include reference to the legislative history, the interpretation of the statute by the execu­ tive branch and the courts, and the meaning of similar statutes governing the same subject matter. B. Coastal Zone Management Act The CZMA was enacted in 1972 to provide a program of federal grants to the states for the purposes of (1) preserving and developing the Nation’s coastal zone and (2) encouraging and assisting the states in exercising their coastal zone re­ sponsibilities through the development of management programs designed to achieve wise and coordinated use of coastal zone resources. 16 U.S.C. § 1452. Under the Act, the Secretary of Commerce may make various grants to states for the development, implementation and protection of management programs. 16 U.S.C. §§ 1454-1464. The states establish management programs, subject to the approval of the Sec­ retary, within the area of the coastal zone. The CZMA defines “coastal zone” as the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and there­ under), strongly influenced by each other and in proximity to the shorelines of the several coastal states . . . . The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit o f the United States territorial sea. The zone extends inland from the shorelines only to the extent necessary to control shore­ lands, the uses of which have a direct and significant impact on the coastal waters. Excluded from the coastal zone are lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents. 254 16 U.S.C. § 1453(1) (emphasis added). Thus, the CZMA defines the coastal zone partly in terms of the “United States territorial sea.” The text of the CZMA does not expressly indicate whether Congress intended the coastal zone to be affected by an expanded claim of territorial sea under in­ ternational law. Inferences from the purposes, structure, and legislative history of the Act, however, suggest that the better view is that Congress intended the coastal zone to be stationary.33 1. Statutory Purpose and Structure There are several purposive and structural reasons why we believe Congress in­ tended the reference to “territorial sea” in the CZMA to refer to the existing three mile area. First, Congress made numerous findings when enacting the CZMA. Con­ gress stated that the coastal zone is rich in natural resources, that it is “ecologically fragile,” that it has experienced a loss of living marine resources and nutrient-rich areas, and that present institutional arrangements for planning and regulating the coastal zone are inadequate.3416 U.S.C. § 1451. These findings were based on em­ pirical observation and investigation of the coastal zone that existed at the time the CZMA was enacted, and it was the coastal area out to three miles that was the fo­ cus of Congress’ concern. These factual findings indicate that it is unlikely that the coastal zone was intended to change with the expansion of the territorial sea. Con­ gress could not have known whether these findings would also be true of other ar­ eas over which the United States might assert its jurisdiction or sovereignty. Dif­ ferent conditions obviously could hold depending upon whether the President asserted a territorial sea of three, twelve, or two hundred miles. Second, it is unlikely that Congress would have intended the CZMA’s scope to expand beyond the clear limit of the states’ jurisdiction. The central purpose of the CZMA was to assist and encourage the states to regulate use of the coastal zone,3S and there is serious question whether the states can extend their regula­ tory jurisdiction beyond the limit of the three-mile belt. In this regard, there are two reasons why the states would not be able to regulate an expanded section of the territorial sea in the comprehensive way contemplated by the CZMA: the states do not have jurisdiction over the soil beneath the nine miles of the expanded territorial sea and it is very uncertain whether the states could assert jurisdiction 33 In interpreting the CZMA, there are both the Act as originally passed in 1972 and the subsequent amendments to the Act to consider. See Pub. L. Nos. 94-370 (1976), 90 Stat. 1013 & 96-^64,94 Stat. 2060 (1980). The defin­ ition of coastal zone was included in the original Act, and has not been amended in any substantive respect. We ac­ cordingly look principally to the original Act in determining Congress' intent, and only consider the amendments to determine whether they were intended to alter the meaning of the original definition. See Secretary o f Interior v California , 464 U S. 312, 330 n.15, 331-32 (1984) (relying principally upon legislative history of the original CZMA, but also considering later provisions). 34 See also S. Rep No. 753, 92d Cong., 2d Sess. 4 (1972) (“Why single out the coastal zone for special man­ agement attention? . . . The fact is that the waters and narrow strip of land within the coastal zone is where the most critical demands, needs and problems presently exist.") 35 See 16 U.S.C. §§ 1451(i), 1452(2). Moreover, section 1455(d) of title 16 requires the Secretary o f Commerce, pnor to approving a state management program, to find that the State “has authority for the management of the coastal zone in accordance with the management program,” including the power to administer land and water use regulations, to control development, and to condemn property, for the purpose of achieving compliance with the management program. 255 even to regulate the waters of that section. We discuss these points in turn. States had for decades generally assumed that they at least controlled the land beneath the territorial sea. However, in United States v. California, the Supreme Court held—contrary to many states ’ assumption—that “the Federal Government rather than the state has paramount rights in and power over [the three mile mar­ ginal] belt, an incident to which is full dominion over the resources of the soil under that water area.” 332 U.S. at 38-39. In response to vigorous state protests to this opinion, Congress in 1953 enacted the Submerged Lands Act, 43 U.S.C. §§ 1301-1315, which granted to the states the lands beneath the navigable wa­ ters within their boundaries, 43 U.S.C. § 1311(a), which boundaries were at a minimum to be set at “a line three geographical miles distant from [a state’s] coast line.” Id. § 1312.36 In the same year, Congress also passed the Outer Continen­ tal Shelf Lands Act, 43 U.S.C. §§ 1331-1356 (“OCSLA”), which established claims for the federal government over the submerged lands which lay seaward of the submerged lands controlled by the states, i.e., the submerged lands beyond the three-mile limit.37 43 U.S.C.§§ 1331(a), 1332(1) & 1333(a)(1). Accordingly, if the President extends the United States’ territorial sea to twelve miles, the states could not exercise jurisdiction over the submerged lands of that area. These lands are controlled by the federal government pursuant to OCSLA. Second, it is not clear whether the states could assert jurisdiction even over the waters of the expanded portion of the territorial sea. “[A]n assertion of a wider territorial sea by the United States . . . would not itself give rights in the addi­ tional zone to the adjacent States. Unless Congress determined otherwise, the zone between three and twelve miles would be under the exclusive authority of the Federal Government.” Restatement Third § 512, reporters’ note 2. It is there­ fore reasonable to assume that the states’ boundaries and regulatory jurisdiction are fixed at their existing limits, and that states have no more power to assert ju­ risdiction over the expanded portion of the territorial sea than they do over other territories that are acquired by the United States. See also Louisiana, 363 U.S. at 35; United States v. Maine, 469 U.S. 504, 513 (1985).38 36 More precisely, the Submerged Lands Act conferred land on the states based on state boundaries as they ex­ isted at the time the state became a member of the Union, or as approved by Congress. 43 U.S.C § 1301 (b) States that had not asserted seaward boundaries of three miles were authorized to do so 43 U.S.C. § 1312. Moreover, the Act did not prejudice the existence of a further seaward boundary if one existed when the state was admitted to the Union or if the boundary had been approved by Congress, but limited the extent of seaward boundaries to three miles into the Atlantic and Pacific Oceans, and to approximately nine miles into the G ulf of Mexico See United States v. Louisiana, 363 U.S 1 (1960) (historical evidence supported Texas’ claim to lands beneath navigable wa­ ters within nine miles o f its coast in the Gulf of Mexico) 37 President Truman had asserted junsdiction over the continental shelf on behalf of the United States in 1945. Proc. No. 2667, 3 C F R. 67 (1943—1948) See supra p 245. 38 However, this is not to say that the states might not attempt to expand their regulatory junsdiction. The states might assert this power as an aspect of their sovereignty retained under the Tenth Amendment, at least to the ex­ tent that the jurisdiction did not conflict with international law, or the states might attempt to found the jurisdiction on histoncal grounds. See Manchester v Massachusetts, 139 U.S. 240, 264 (1891), Skiriotes v Florida, 313 U.S. 69, 77 (1941). But see United States v. California , 332 U S. at 37 (distinguishing Manchester v Massachusetts)', United States v. California, 381 U.S. 139, 168—69 (1965) (“Although some dicta in [Manchester] may be read to support” the view that “a State may draw its boundaries as it pleases within limits recognized by the law o f nations regardless o f the position taken by the United States,” “we do not so interpret the opinion The case involved nei­ ther an expansion of our traditional international boundary nor opposition by the United States to the position taken by the State.”). 256 However, it is not necessary for present purposes to decide whether the states could assert jurisdiction to regulate the waters of the expanded section of the ter­ ritorial sea. Thus, given the absence of any clear state authority over the soil be­ neath an expanded territorial sea and the uncertainty of state authority over the expanded water area, it is most unlikely that the Congress that enacted the CZMA would have simply assumed that state authority would expand if the United States’ territorial sea expanded. 2. Legislative History An examination of the legislative history of the definition of coastal zone also supports this conclusion. In particular, the CZMA represented a compromise be­ tween Senate and House bills. The bill reported by the Senate Committee on Com­ merce included a definition of the coastal zone similar to the final Act. It pro­ vided: The zone terminates, in Great Lake waters, at the international boundary between the United States and Canada and, in other ar­ eas, extends seaward to the outer limit of the United States terri­ torial sea. S. Rep. No. 753, 92d Cong., 2d Sess. 47 (1972). The only relevant discussion of this provision in the Senate Report states that “[t]he outer limit of the [coastal] zone is the outer limit of the territorial sea, be­ yond which the States have no clear authority to act.” Id. at 9. Thus, the Senate Report is consistent with the conclusion that the coastal zone was intended to ex­ tend only to the limit of the existing three mile territorial sea, the limit of state jurisdiction. After issuance of the Report, however, the definition of coastal zone was amended on the floor of the Senate. Senator Spong was concerned that the bill “might have a prejudicial effect upon the matter of United States against Maine,”39 in which the United States was seeking a determination against the thirteen Atlantic coastal states concerning control over the submerged lands “of the bed of the Atlantic Ocean more than three geographic miles from the coast­ line.” 118 Cong. Rec. 14,185 (1972). Thus, he proposed an amendment, “the sole purpose of which is to assure that the bill will have no prejudicial effect upon the litigation.” Id. The amendment changed the definition of coastal zone to the fol­ lowing: The zone terminates, in Great Lake waters, at the international boundary between the United States and Canada and, in other ar­ eas, extends seaward to the outer limit of the legally recognized territorial seas of the respective coastal states, but shall not ex­ tend beyond the limits of State jurisdiction as established by the 39 C f United States v. Maine. 420 U S. 515 (1975). 257 Submerged Lands Act o f May 22,1953 and the Outer Continen­ tal Shelf Act o f 1953. Id. at 14,185 (emphasis added to indicate changed language). Senator Hollings also spoke in support of the amendment. He stated: We have been trying to reconcile the amendments so that we would not interfere with any legal contention of any of the sev­ eral States at the present time involved in court procedures. At the same time we wanted to make certain that Federal jurisdiction was unimpaired beyond the 3-mile limit in the territorial sea. Id.40 Thus, the change in the Senate bill language was not intended to have sig­ nificant effect on the issue at hand, but was only included to avoid affecting pend­ ing litigation. The language in the House bill was virtually identical to that in the original Senate bill. The House bill provided: The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other ar­ eas, seaward to the outer limit of the United States territorial sea. H.R. Rep. No. 1049,92d Cong., 2d Sess. 2 (1972). The House Report, however, adopted a different understanding of the provision. The House Report stated that the coastal zone extends outward to the outer limit of the territorial sea which, under the present posture of international law, means three miles from the base line from which the territorial sea of the United States is measured. Should the United States, by future action, either through inter­ national agreement or by unilateral action, extend the limits of the United States territorial sea further than the present limits, the coastal zone would likewise be expanded, at least to the ex­ tent that the expanded water area and the adjacent shore lands would strongly influence each other, consistent with the general definition first referred to above.41 40 Senator M oss stated that “[tjhis makes clear that this bill focuses on the territorial sea or the area that is within State jurisdiction, and preserves the Federal jurisdiction beyond, which is not to be considered or disturbed by the bill at this time. If we want to do something about that later, we will have another bill, and another opportunity.” 118 Cong. Rec. 14,185 (1972). 41 The “general definition” to which the House Report refers is as follows: ‘“ Coastal Zone’ means the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states.” H.R. Rep. No. 1049, supra, at 2. 258 Id. at 13-14 (emphasis added). This language in the House Report expresses an intent that, at least in certain circumstances, the definition of coastal zone could be extended by a change in the breadth of the territorial sea. The difference in the language between the House and Senate bills was re­ solved by the Conference Committee. The Conference Report stated: The Managers agreed to adopt the House language as to the sea­ ward extent of the coastal zone, because of its clarity and brevity. At the same time, it should be made clear that the provisions of this definition are not in any way intended to affect the litigation now pending between the United States and the Atlantic coastal states as to the extent of state jurisdiction. Nor does the seaward limit in any way change the state or Federal interests in resources of the territorial waters or Continental Shelf, as provided for in the Submerged Lands Act and the Outer Continental Shelf Lands Act. H.R. Conf. Rep. No. 1544, 92d Cong., 2d Sess. 12 (1972). Whi le it might be argued that the Conference Committee ’s adoption of the House bill language also adopted the explanatory language in the House Report, the Con­ ference Report did not say so. Rather, it stated that the language was taken because of its “clarity and brevity.” Moreover, the Conference Report then immediately went on to state what is in effect a paraphrase of the Senate bill—saying that the bill is not intended to affect the pending litigation and that the seaward limit is un­ derstood in accordance with the Submerged Lands Act and the OCSLA. Thus, the Conference Report appeared to make a special effort to clarify that despite its choice of the House language (which was also the language of the original Senate ver­ sion), it accepted the Senate’s understanding of the provision.42 Moreover, the Conference Report would appear to be inconsistent with the House Report’s language concerning extension of the coastal zone. The third and final sentence in the Conference Report discussing the definition reiterates the congressional concern that CZMA do nothing to affect the statutory allocation of state and national responsibility in the area. Id. If the CZMA permitted an ex­ pansion of the coastal zone, and states asserted regulatory jurisdiction over the extended territorial sea, however, that balance of authority would be affected 43 42 The House bill had included various provisions extending the scope of the CZMA beyond the three-mile limit, but the Conference Committee had rejected all the provisions The language in the House Report may therefore be understood as indicative of the House’s intent that the CZMA extend beyond the three-mile limit in certain cir­ cumstances. See Secretary o f Interior v. California, 464 U S. 312 (1984) (discussed below). But because rejection of these provisions indicates that this intention was not adopted by the Conference Committee, we believe the bet­ ter view is that the language in the House Report, like the provisions eliminated in the House bill, does not reflect the final congressional intent 43 Extension of the coastal zone to the land and sea beyond the three-mile limit would have provided the states with additional control over OCS resources States would have the authonty under section 307(c)(3) of the origi­ nal act, 16 U S.C. § 1456(c)(3)(A), to veto (subject to a limited federal override) OCS activities that affected the waters of the new, extended coastal zone. 259 This understanding of the legislative history is bolstered by the Supreme Court’s decision in Secretary o f the Interior v. California, 464 U.S. 312 (1984). This case involved the interpretation of section 307(c)( 1) of the CZMA, 16 U.S.C. § 1456(c)(1), which requires federal agencies to conduct activities “directly af­ fecting the coastal zone” consistently with approved state management programs. The Court held that the only federal activities “directly affecting” the coastal zone were those conducted “on federal lands physically situated in the coastal zone but excluded from the zone as formally defined by the Act,” and did not include activities conducted beyond the three-mile seaward limit of the coastal zone, as California had argued. 464 U.S. at 330. The Court based its holding that the am­ biguous “directly affecting” language did not apply to activities seaward of the three-mile limit on a review of the legislative history. The Court concluded that “[e]very time it faced the issue in the CZMA debates, Congress deliberately and systematically insisted that no part of CZMA” was to extend beyond the threemile limit. Id. at 324. The Court noted the “repeated statements” in the floor debates in Congress that “the allocation of state and federal jurisdiction over the coastal zone and the [outer continental shelf] was not to be changed in any way” by the Act. Id. The Court listed nine statements, including: “This bill covers the territorial seas; it does not cover the Outer Continental Shelf.” 118 Cong. Rec. 14,180 (1972) (remark of Sen. Stevens); “[T]his bill attempts to deal with the Territorial Sea, not the Outer Continental Shelf.” id. at 14,184 (remark of Sen. Moss); “[W]e wanted to make certain that Federal jurisdiction was unimpaired beyond the 3-mile limit in the territorial sea.” id at 14 18S (remark of Sen. Rollings); “[T]hc Federal Govern­ ment has jurisdiction outside the State area, from 3 to 12 miles at sea.” id. at 35,550 (remark of Rep. Anderson). Moreover, the Court relied upon the fact that Congress “debated and firmly rejected” four proposals “to extend parts of CZMA” to the outer continental shelf. 464 U.S. at 325. The most significant of these proposals was contained in sec­ tion 313 of the House bill, which would have required the Secretary of Com­ merce to develop a management program for “the area outside the coastal zone and within twelve miles” of the coast. This provision, however, was eliminated by the Conference Committee because, as explained in the Conference Report, “the provisions relating thereto did not prescribe sufficient standards or criteria and would create potential conflicts with legislation already in existence con­ cerning Continental Shelf resources.” Id. at 327 (quoting H.R. Conf. Rep. No. 1544, supra, at 15 (emphasis supplied by Supreme Court)). Congress also re­ jected proposals to permit the Secretary of Commerce to extend established state coastal zone marine sanctuaries beyond the coastal zone, to require approval of state governors when federal agencies sought to construct or to license con­ struction of facilities beyond the territorial sea,44 and to invite the National Acad­ emy of Sciences to investigate environmental hazards attendant on offshore drilling on the Atlantic Outer Continental Shelf.45 Viewing this evidence in its 44 118 Cong. Rec. 14,183-84 (1972). 45 118 Cong. Rec. 14,180-81, 14,191,35.547 (1972). 260 totality, the Court concluded46 that “Congress expressly intended to remove con­ trol of [outer continental shelf] resources from CZMA’s scope.” Id. at 324 47 The Supreme Court’s understanding of Congress’ intent also applies to the pre­ sent issue. Congress’ intention to exclude outer continental shelf resources from the scope of the CZMA, which required that the “directly affecting” provision be applied only to activities within the three-mile coastal zone, was based on a de­ sire to limit the applicability of the CZMA to the three-mile limit. Therefore, the legislative history, as interpreted by the Supreme Court, also indicates that Con­ gress did not intend for the coastal zone itself to be expanded beyond that threemile limit. 3. Subsequent Amendments Since 1972, Congress has passed legislation affecting the relationship between the federal and state authority contemplated by the original CZMA. While these amendments are of limited significance in interpreting the original CZMA, we discuss them because they are consistent with a continuing congressional intent to consider carefully any change in the balance of state and federal authority in this area. The CZMA has been amended several times,48 and OCSLA has also been sub­ stantially modified. In contrast to the original CZMA, these amendments ex­ pressly give the states a role concerning the federal governance of activities on the OCS. The amendments establish a complex, interconnected statutory scheme, which contains precise and detailed limits on state authority, varying in different circumstances. That Congress has enacted such a scheme suggests that it has con­ sidered and legislated on the role of the states very carefully, and would not de­ sire any modification of that role in the CZMA in the absence of new legislation. We describe the amendments below'. The CZMA was first significantly amended by the Coastal Zone Management Amendments of 1976, Pub. L. No. 94-370,90 Stat. 1013 (1976) (“ 1976 Amend­ ment”). The 1976 Amendment effected two important changes in the role of the 46 We also believe that section 307(c)(3) of the original Act, 16 U.S.C § 1456(c)(3)(A), did not, as originally enacted, apply to activities seaward of the coastal zone Section 307(c)(3) required activities “affecting land or w a­ ter uses in the coastal zone” to be subjected to review for consistency with state management programs, and was a sister provision to section 307(c)(1) construed in Secretary of Interior v California Based on the logic and lan­ guage of that case, the C ourt’s statement that the Congress that passed the original CZMA “expressly intended to remove control of [outer continental shelf] resources from CZMA’s scope” also applies to section 307(c)(3). We need not decide, however, whether the scope of this provision has been changed by amendments to the Act. See e g , Pub. L. No. 94-370, 90 Stat. 1018 (1976) (codified at 16 U.S.C. § 1456(c)(3)(B)). 47 It is clear that Congress was concerned with more than whether a provision violated international law. The Conference Committee rejected section 313 of the House bill because it would have created potential conflicts with existing legislation governing the outer continental shelf, not because it would violate international law H.R. Conf. Rep. No. 1544, 92d Cong., 2d Sess. 15 (1972). Thus, Congress’ decision to extend the coastal zone seaward only three miles was in part the product of its conscious coordination of the CZMA with other statutory provisions gov­ erning the outer continental shelf, provisions which would be unaffected by a change in the United States’ territo­ rial sea. 48 The CZMA has been amended at least seven times. Here, we focus on the 1976 amendment because it con­ tains the principal changes in federal and state authonty. See also Coastal Zone Management Improvements Act of 1980, Pub L. No 96-464, 94 Stat 2060 (1980) 261 states, both of which recognize and attempt to address the effects of OCS activ­ ities on the coastal zones of the states. First, section 6 requires federal licenses for OCS exploration or development to attempt to conform to management plans of affected states. The Secretary of Commerce may override the state’s determi­ nation that an activity is inconsistent with its plan only upon finding that the pro­ posed activities are consistent with the objectives of the CZMA or are necessary in the interest of national security. 16 U.S.C. § 1456(c)(3)(B). Second, section 7 of the 1976 Amendment establishes a Coastal Energy Impact Program that pro­ vides financial assistance to states to meet needs resulting from and reflecting the impact of coastal energy activities, including OCS activities, which for technical reasons must be sited in or near the state’s coastal zone. 16 U.S.C. § 1456a. In 1978, Congress further modified the allocation of federal and state respon­ sibilities through enactment of the Outer Continental Shelf Lands Act Amend­ ments of 1978, Pub. L. No. 95-372,92 Stat. 629 (“OCSLA Amendment”). This amendment substantially changed the original OCSLA by including numerous provisions requiring state participation in OCS activities.49 Thus, the amendments to both the CZMA and the OCSLA establish a com­ plex and detailed statutory scheme concerning the limits of state authority to af­ fect OCS activities.50 Overthe years, Congress has provided the states with grants to respond to the effects of OCS activities, with the authority to review and make recommendations concerning OCS activities, and with the power to veto OCS activities subject to limited federal override. These detailed amendments to the CZMA and OCSLA are thus consistent with a congressional understanding of a coastal zone and state authority which would not automatically expand with the expansion of the territorial sea. To summarize, on the basis of the purpose, structure and legislative history of the CZMA, we conclude that Congress did not intend the coastal zone to be af­ fected by an expansion of the territorial sea under international law. The language in the House Report might suggest a contrary conclusion, but that language was not accepted by the Conference Committee and, in any case, is outweighed by 49 The OCSLA Amendment provides for various levels o f state participation in the process of developing off­ shore oil. Secretary o f Interior v. California, 464 U S. at 337. The Secretary of Interior must, while preparing a schedule for proposed lease sales on the OCS, solicit comments from states that might be affected, and must ex­ plain, in a report to Congress and the President, why a state recommendation was not accepted. 43 U S.C. § 1344(c) & (d) Second, the Secretary must accept slate recommendations concerning the size, timing or location of pro­ posed lease sales, if he determines that they reasonably balance national and state interests 43 U S C § 1345(a) & (c). Third, an applicant’s exploration plan must certify that the proposed activities are consistent with slate CZMA management programs unless the Secretary o f Commerce finds that the proposed activities are consistent with the objectives of the CZMA or are necessary in the interest of national security 43 U.S.C. § 1340(c) Finally, the Sec­ retary of Interior must accept state recommendations concerning development and producuon plans if they provide a reasonable balance between state and national interests. The plans must also be consistent with state CZMA man­ agement plans and will only be approved, absent state consent, if the Secretary of Commerce finds that the pro­ posed activities are consistent with the objectives of the CZMA or are necessary for national security. 43 U.S.C. § 1351 50 Writing of the relationship between the OCSLA Amendment and CZMA, the Supreme Court stated that “Con­ gress has thus taken pains to separate various federal decisions" in the process o f granting authonty to conduct OCS development and to subject only the third and fourth stages to review for consistency with state management plans. Secretary o f Interior v California , 464 U.S. at 340. 262 the structure of the Act and the legislative history, as interpreted by the Supreme Court. We recognize, however, that this conclusion is not free from doubt, and that a court could construe the coverage of the CZMA—or other statutes which refer to the territorial sea—as expanding with the extension of the territorial sea. Such a result can be avoided. As discussed, whether the coverage of a statute which refers to the territorial sea is affected by the extension of the territorial sea is a question of legislative intent. Therefore, Congress could foreclose an individu­ alized judicial assessment of each federal statute by enacting legislation which negates the expansion of the coverage of any domestic statute by the extension of the territorial sea for international purposes. An express declaration by Con­ gress that the presidential proclamation extending the territorial sea has no effect on the operation of domestic statutes which rely upon the concept of the territo­ rial sea would provide a simple and decisive rejoinder to any claim of automatic expansion. Thus, although we do not believe that the coverage of the CZMA should be construed to expand as a necessary result of the presidential procla­ mation, we recommend that the President seek legislation to conclusively pre­ clude any contrary decision on the CZMA or any other statute by the courts. Conclusion We believe that the President may make an extended jurisdictional claim to the territorial sea from three to twelve miles by proclamation. We also find ven­ erable historical evidence supporting the view that the President’s constitutional role as the representative of the United States in foreign relations empowers him to extend the territorial sea and assert sovereignty over it, although most such claims in our nation’s history have been executed by treaty. It is more doubtful, however, that Congress, acting alone, may extend the territorial sea beyond the present boundary for international purposes. The domestic effect of the extension of the territorial sea on federal statutes that refer to the territorial sea must be determined by examining Congress’ intent in passing each relevant statute. We have concluded that the better view is that the expansion of the territorial sea will not extend the coverage of the Coastal Zone Management Act, the statute which was identified to us as presenting spe­ cial concern. However, we recognize that the effect of the proclamation on the CZMA and numerous other federal statutes will continue to be uncertain until fi­ nal judicial resolution. We therefore recommend that the President seek legisla­ tion providing that no federal statute is affected by the President’s proclamation to extend the breadth of the territorial sea from three miles to twelve miles. D o u g l a s W . K m ie c Acting Assistant Attorney General Office o f Legal Counsel 263 I

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Section 235A of the Immigration and Nationality Act Section 235A o f the Im m igration and N ationality Act requires the A ttorney Genera) to establish and m aintain certain p reinspection stations, p rovided the foreign countries concerned have consented to th e estab lish m en t o f such stations on th e ir territory and provided th at certain other preconditions h ave been satisfied. Section 2 35A d o es not o blige the Attorney G eneral or any other executive branch official to enter into diplo m atic n egotiations w ith foreign countries in o rd er to obtain their consent to the establish­ m ent o f p reinspection stations on their territory, and it does not require that preinspection stations be estab lish ed b efo re the preconditions h av e been satisfied. A ccordingly, section 235A does not u n con stitutionally infringe on the President’s authonty to conduct diplom atic relations. October 23, 2000 M em orandum O p in io n I m m ig r a t i o n and fo r t h e G en era l C o u n sel N a t u r a l iz a t io n S e r v i c e You have requested our opinion whether section 235A of the Immigration and Nationality Act ( “ ENA” ), 8 U.S.C. § 1225a, which requires the Attorney General to establish and maintain immigration preinspection stations in certain foreign air­ ports, unconstitutionally infringes on the President’s authority to conduct diplo­ matic relations with other nations. As we explain more fully below, we believe that section 235A 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, however, oblige the Attorney General or any other executive branch official to enter into diplo­ matic negotiations with foreign countries in order to obtain that consent, and it does not require that preinspection stations be established before the preconditions have been satisfied. BACKGROUND Section 235A was added to the INA by section 123 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104—208, 110 Stat. 3009—546, 3009-560 ( “ IIRIRA” ). It mandates the establishment of immigra­ tion “ preinspection” stations at certain foreign airports.1 Prior to the passage of section 235A, the INA authorized, but did not require, the establishment of preinspection stations, and the relevant statutory provisions were neither modified 1 “ Preinspection” generally refers to immigration inspection procedures conducted at foreign ports of embarkation by United States authorities for passengers seeking entry into the United States In some instances, immigration preinspection is accompanied by U S. Customs clearance as well. Sites containing both immigration and customs inspection are generally called “ preclearance” sites See, e.g., Agreement Between the Government of the United States o f America and the G overnment of Canada on Air Transport Preclearance, May 8, 1974, art 1(a), 25 U S T 763 ( “ U S.-Canada A greem ent” ). Section 235A refers only to preinspection. 276 Section 235A o f the Immigration and Nationality Act nor repealed by passage of section 235A. Specifically, under INA § 103(a)(7), 8 U.S.C. § 1103(a)(7), the Attorney General “ may, with the concurrence of the Secretary of State, establish offices of the [INS] in foreign countries.” Pursuant to that authority, the INS established and maintains preinspection stations at air­ ports in Canada, Ireland, Bermuda, and several other ports of embarkation in the Caribbean. Establishing those stations involved entering into diplomatic negotia­ tions with the foreign countries involved. See, e.g., U.S.-Canada Agreement, 25 U.S.T. at 763. In contrast, section 235A requires (and does not merely authorize) the establish­ ment of preinspection stations. Section 235A(a)(l), which is entitled “ New Sta­ tions,” provides: Subject to paragraph (5), not later than October 31, 1998, the Attorney General, in consultation with the Secretary of State, shall establish and maintain preinspection stations in at least 5 of the foreign airports that are among the 10 foreign airports which the Attorney General identifies as serving as last points of departure for the greatest numbers of inadmissible alien passengers who arrive from abroad by air at ports of entry within the United States. Such preinspection stations shall be in addition to any preinspection stations established prior to the date of the enactment of such Act [September 30, 1996]. Additionally, section 235A(a)(4), which is entitled “ Additional Stations,” pro­ vides: Subject to paragraph (5), not later than October 31, 2000, the Attorney General, in consultation with the Secretary of State, shall establish preinspection stations in at least 5 additional foreign air­ ports which the Attorney General, in consultation with the Secretary of State, determines, based on the data compiled under paragraph (3) and such other information as may be available, would most effectively reduce the number of aliens who arrive from abroad by air at points of entry within the United States who are inadmissible to the United States. Such preinspection stations shall be in addition to those established prior to the date of the enactment of such Act [September 30, 1996] or pursuant to paragraph (l).2 2 Section 235A(a)(3), which is referenced in section 235A(a)(4), provides Not later than November 1, 1997, and each subsequent November 1, the Attorney General shall compile data identifying — (A) the foreign airports which served as last points o f departure for aliens who arrived by air at United States ports o f entry without valid documentation dunng the preceding fiscal years, (B) the number and nationality o f such aliens arriving from each such foreign airport, and Continued 277 Opinions o f the Office o f Legal Counsel in Volume 24 Finally, sections 235A(a)(l) and (4) are both “ [s]ubject to” section 235A(a)(5), which identifies certain “ [c]onditions” : Prior to the establishment of a preinspection station the Attorney General, in consultation with the Secretary of State, shall ensure that — (A) employees of the United States stationed at the preinspection station, and their accompanying family members will receive appro­ priate protection; (B) such employees and their families will not be subject to unreasonable risks to their welfare and safety; and (C) the country in which the preinspection station is to be estab­ lished maintains practices and procedures with respect to asylum seekers and refugees in accordance with the Convention Relating to the Status of Refugees (done at Geneva, July 28, 1951), or the Protocol Relating to the Status of Refugees (done at New York, January 31, 1967), or that an alien in the country otherwise has recourse to avenues of protection from return to persecution. These requirements stand as conditions precedent to the statutory duty to establish any o f the preinspection stations called for by sections 235A(a)(l) and (4): the Attorney General must ensure that they are met “ [p]rior to the establishment of a preinspection station,” INA §235A(a)(5), and the statutory requirement that preinspection stations be established by defined dates is “ [sjubject to” these pre­ conditions. Id. §235A (a)(l) and (4).3 After the enactment of section 235A, a working group consisting of representa­ tives from the INS and the Department of State was established to identify poten­ tial sites for preinspection stations. The working group ultimately identified sixteen potential sites (in fifteen countries) for preinspection stations that met the criteria set forth in section 235A.4 The Commissioner of the INS sent a letter to the Department of State requesting that it ascertain, inter alia , whether countries con­ taining the sites identified by the working group were willing to allow preinspection stations on their territory. The State Department then instructed (C) the prim ary routes such aliens followed from their country o f ongin to the United States 3 Preinspection stations may be established fo r a variety o f reasons, including passenger convenience See, e g , U .S -C anada Agreement, preamble, 25 U.ST at 764 (staling that “ preclearance facilitates air travel between the two countries” ) It is clear from the text of section 235A that the preinspection stations it contemplates are intended to decrease the number o f inadmissible aliens entering the United States The legislative history confirms this point See H.R. Rep No 104-469, 177-78 (1996) ( “ [P]assengers refused permission [at a preinspection station] to board [an airplane bound for the United States], on the ground that they do not have valid documents to be admitted or are otherw ise inadmissible, will be prevented from even reaching a U.S port of entry, thus reducing the burden on INS inspection facilities and the likelihood that unauthorized aliens will enter the U S ” ) 4 Those sites are- London, M exico City, Tokyo, Amsterdam, Frankfurt, Pans, Taipei, Seoul, Caracas, Santo Domingo, Kingston, Sao Paolo, Rome, Guadalajara, Guatemala City, and Port au Pnnce See Memorandum for Chns Sale, D eputy Commissioner, INS, from Michael D. Cronin, Assistant Commissioner. INS, Re- Preinspection Working Group at 5 -6 (July 22, 1997). 278 Section 235A o f the Immigration and Nationality Act American embassies and consulates in the relevant countries to explore that issue with host country officials. In a letter dated January 20, 1998, the Assistant Sec­ retary of State for Consular Affairs reported that “ only one [country] (Jamaica) gave preliminary indication that it would support establishment of an INS preinspection station.” Letter for Hon. Doris Meissner, Commissioner, INS, from Mary A. Ryan, Assistant Secretary for Consular Affairs, Dept, of State at 2 (Jan. 20, 1998) (“ Ryan Letter” ).5 To date, no preinspection stations have been estab­ lished pursuant to section 235A. DISCUSSION To determine whether section 235A unconstitutionally intrudes on the Presi­ dent’s authority to conduct foreign relations, we begin by identifying section 235A’s precise requirements. For present purposes, this involves interpreting sec­ tions 235A(a)(l), (4), and (5). The first two provisions stipulate how many preinspection stations are to be established and maintained, the criteria those sta­ tions must meet, and the dates by which they are to be established. The third specifies certain conditions that must be met before a preinspection station is established. Sections 235A(a)(l) and (4) both direct the Attorney General, in consultation with the Secretary of State, to “ establish” (and, in the case of section 235A(a)(l), “ maintain” ) preinspection stations meeting certain criteria. Section 235A(a)(l) provides that, by Octobcr 31, 1998, the Attorney General “ shall establish and maintain preinspection stations in at least 5 of the foreign airports that are among the 10 foreign airports which the Attorney General identifies as serving as last points of departure for the greatest numbers of inadmissible alien passengers who arrive from abroad by air at ports of entry within the United States.” Id. Section 235A(a)(4) provides that, by October 31, 2000, she “ shall establish preinspection stations in at least 5 additional foreign airports which the Attorney General, in consultation with the Secretary of State, determines, based on the data compiled under paragraph (3) and such other information as may be available, would most effectively reduce the number of aliens who arrive from abroad by air at points of entry within the United States who are inadmissible to the United States.” Id. Sections 235A(a)(l) and (4) thus appear to contemplate a two-step process. First, the Attorney General is to identify potential sites for preinspection stations that meet the criteria set out in the relevant section. Second, she is to establish such stations at a minimum number of sites by the dates prescribed. 5 The Ryan Letter noted that “ [o]ne country (Dominican Republic) indicated it might be willing to allow a preinspection staiion, but only if full preclearance was allowed, i.e customs inspections as w ell.” Ryan Letter at 2 The Ryan Letter further explained that fourteen countries were “ queried ” Id at 2. As to the fifteenth country, Guatemala, the Ryan Letter explained that “ [o]ur embassy in Guatemala has not yet been able to obtain an initial reaction from authorities in that country.’* Id. 279 Opinions o f the Office o f Legal Counsel in Volume 24 Additionally, however, sections 235A(a)(l) and (4) both provide that their requirements are “ [s]ubject to” section 235A(a)(5), which, in turn, sets out certain conditions that must be met before a preinspection station is established. See supra p. 279 (quoting section 235A(a)(5)). The ordinary meaning of “ subject to” includes “ governed or affected b y .” Black’s Law Dictionary 1425 (6th ed. 1990). Thus, sections 235A(a)(l) and (4), including the deadlines they prescribe, are “ governed or affected by” the conditions set out in section 235A(a)(5).6 Once the Attorney General identifies a potential site for a preinspection station, the requirement that it be “ established” by a particular date does not take effect until the Attorney General is able to ensure that the site meets section 235A(a)(5)’s conditions. Section 235A does not specify precisely how the Attorney General is to ensure that the sites she selects for preinspection stations meet section 235A(a)(5)’s conditions or how she is to go about establishing and maintaining such stations once they meet those conditions. Because the preinspection stations are to be located in foreign countries, establishing those stations is not entirely within the control of the Attorney General or, indeed, the executive branch as a whole. Rather, preinspection stations can only be established after the United States obtains the consent of the foreign countries concerned. See, e.g., U.S.-Canada Agreement, supra.1 For two reasons, we do not read section 235A as requiring the executive branch to seek or obtain such consent. First, such a reading would impose on the execu­ tive branch the obligation to achieve outcomes beyond its control. While the Executive may negotiate with foreign sovereigns in an effort to obtain their con­ sent to the establishment of preinspection stations within their territory, it is not within the Executive’s power to ensure that such consent is actually given. Simi­ larly, the Attorney General’s ability to ensure that section 235A(a)(5)’s conditions are met depends at least in part on the cooperation of the relevant foreign govern­ ment, cooperation that she cannot guarantee. Providing “ appropriate protection” to federal employees working at preinspection stations, protecting those employees and their families from “ unreasonable risks to their welfare and safety,” and ensuring that aliens in a foreign country receive appropriate “ protection from return to persecution’ ’ are all undertakings that require the cooperation and partici­ pation of the foreign sovereign concerned. Id. Without that cooperation and participation, it is not possible for the Attorney General herself either to ensure 6 C f American Rivers v. FERC, 201 F 3d 1186, 1204 (9th Cir. 2000) (“ W e therefore interpret ‘subject to paragraph (2)’ to mean precisely what it says subsection 1 0 (j)(l) is governed or affected by subsection 10(j)(2) ” ) 7 This is tm e both as a practical matter and as a matter o f customary international law Under the latter, it is generally well-settled that an agent of a state m ay not act on the state’s behalf within foreign territory without the consent o f the foreign sovereign See, e.g., Ian Brownlie, Principles o f Public International Law 306-07 (3d ed 1979); Hans Kelsen, Principles o f International Law 317-18 (2d ed 1966) ( “ That the territory enclosed by the boundaries o f a state legally belongs to this state o r — as it is usually characterized— that it is under the territorial supremacy or sovereignty o f this state means that all individuals staying on this territory are, in principle, subjected to the legal pow er o f that state and only of that state.’’) 280 Section 235A o f the Immigration and Nationality Act that section 235A(a)(5)’s conditions are met or to establish and maintain preinspection stations as required by sections 235A(a)(l) and (4). We presume that section 235A is not intended to demand the impossible of the Attorney General. See M cNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir. 2000) (“ It is a flawed and unreasonable construction of any statute to read it in a manner that demands the impossible.” ); Ambassadors and other Public M in­ isters o f the United States, 7 Op. Att’y Gen. 186, 218 (1855) (Cushing, Att’y Gen.) (“ [I]t is unreasonable to presume in any circumstances . . . that Congress intended to enact what is unreasonable.” ). Accordingly, we do not read section 235A as requiring the executive branch to obtain either foreign countries’ consent to the establishment of preinspection stations or their cooperation in ensuring that section 235A(a)(5)’s conditions are met with respect to those stations. Second, we do not read section 235A to require the Executive to enter into diplomatic negotiations to obtain foreign countries’ consent to the establishment of preinspection stations, because such a requirement would unconstitutionally infringe on the President’s foreign affairs power. The Constitution commits to the President the responsibility for conducting the nation’s foreign affairs.8 That responsibility includes the ‘‘ ‘exclusive authority to determine the time, scope, and objectives’ ” of all international negotiations. Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 41 (1990) (quoting 2 Pub. Papers of Ronald Reagan 1541, 1542 (1987) (President Reagan’s statement on signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989)). If section 235A were construed to require the Executive to negotiate with foreign countries in an attempt to obtain their consent to the establishment of preinspection stations, it would unconstitutionally intrude on that exclusive authority. Such a reading would run afoul of the principle that Congress may not require the Executive to “ initiate discussion with foreign nations” or “ order[] the Executive to negotiate and enter into treaties” or other types of international agreements. Earth Island Inst. v. Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993); see 2 Pub. Papers of William J. Clinton 1685, 1688 (1999) (President Clinton’s statement on signing the National Defense Authorization Act for Fiscal Year 2000) ( “ Congress may not direct that the President initiate discussions or negotiations with foreign govern­ ments.” ). It would also impermissibly specify the precise subject matter o f the Executive’s communications with foreign governments. See id. at 2035, 2036 (President Clinton’s statement on signing Legislation to Locate and Secure the s See U.S. Const art II, §§ 1-3, Department o f Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court has “ recognized ‘the generally accepted view that foreign policy [i]s the province and responsibility of the Execu­ tive’ ” ) (quoting Haig v Agee, 453 U S 280, 293-94 (1981)), Alfred Lord Dunhill o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 7 05-06 n.18 (1976) ( “ [T]he conduct of [foreign policy] is committed primarily to the Execu­ tive Branch.” ); U nited States v Louisiana, 363 U S ), 35 (1960) (the President is “ the constitutional representative of the United States in its dealings with foreign nations” ), Sanchez-Espinoza v Reagan, 770 F.2d 202, 210 (D.C Cir. 1985) (Scalia, J.) ( “ [BJroad leeway” is “ traditionally accorded the Executive in matters o f foreign affairs.” ); Thomas Jefferson, Opinion on the Powers o f the Senate Respecting Diplomatic Appointments (Apr. 24, 1790), in 16 The Papers o f Thomas Jefferson 378, 379 (Julian P Boyd ed. 1961) ( “ The transaction of business with foreign nations is Executive altogether.” ). 281 Opinions of Ihe Office o f Legal Counsel in Volume 24 Return of Zachary Baumel, a United States Citizen, and Other Israeli Soldiers M issing in Action) ( “ To the extent that this provision can be read to direct the Secretary of State to take certain positions in communications with foreign govern­ ments, it interferes with my sole constitutional authority over the conduct of diplo­ matic negotiations.” ); 2 Pub. P apers o f William J. Clinton 1815, 1815 (1996) (President Clinton’s statement on signing the Sustainable Fisheries Act) ( “ Under our Constitution, it is the President who articulates the Nation’s foreign policy and who determines the timing and subject matter of our negotiations with foreign nations.” ).9 Accordingly, because section 235A does not expressly require the Executive to negotiate with foreign countries on the topic of preinspection stations, and because such a requirement would violate the constitutional separation of powers, we conclude that the statute should not be construed to so require.10 CONCLUSION In sum, we conclude that under section 235A, the Attorney General is required to identify certain potential sites for preinspection stations that fit the criteria set forth in sections 235A(a)(l) and (4). Before any such station is established, she is also required to ensure that the conditions prescribed in section 235A(a)(5) are satisfied. A condition precedent both to the satisfaction of section 235A(a)(5)’s conditions and to the actual establishment of any preinspection station is that the foreign government concerned agree to the establishment of the station. Construing section 235A as requiring the executive branch to fulfill that condition would both oblige the Executive to achieve outcomes beyond its control11 and infringe on the Executive’s broad authority over foreign affairs. Accordingly, we do not read 9 See also Issues Raised by Foreign Relations Authorization Bill, 14 O p O L C at 41 ( “ The President is the constitutional representative o f the United States with regard to foreign affairs He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiations may be urged with the greatest prospect of success.” ) (emphasis added) (quoting Reports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt 8, 56th Cong., 2d Sess. 24 (1901)); H. Jefferson Powell, The President’s Authority O ver Foreign A ffa irs’ An Executive Branch Perspective, 67 Geo. Wash L Rev. 527, 558 (1999) C ‘[T]he executive’s pow er over negotiations vests in it the discretion to determine the goals as well as the modes of diplo­ m acy.” ). 10 O ur approach on this point is consistent with the Supreme Court’s admonition to interpret statutes so as to avoid constitutional questions where possible. See Jones v. United States, 524 U.S. 848, 857 (2000) ( “ [W]here a statute is susceptible o f two constructions, by one of which grave and doubtful constitutional questions arise and by the other o f which such questions are avoided, our duty is to adopt the la tte r” ) (quoting United States ex rel Attorney G eneral v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)); Jones v. United States, 526 U S . 227, 239 (1999); Cahfano v. Yamasaki, 442 U S . 682, 693 (1979), Crowell v Benson, 285 U S 22, 62 (1932), cf. Ashw ander v 7V A , 297 U S 288, 347 (1936) (Brandeis, J., concum ng) ( “ [l]f a case can be decided on either o f tw o grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” ) 11 W e note that executive branch officials have, since the passage of section 235A, raised the issue o f preinspection stations with a num ber o f foreign governments After a joint INS-Department of State working group identified sixteen potential sites for preinspection stations, the State Department instructed American embassies and consulates in the countries concerned to explore the preinspection issue with host country officials. See supra pp 279-80 O nly one o f the countries quened gave preliminary indication lhat it would support the establishment of a preinspection station within its territory See supra pp 279-80 & note 5; Ryan Letter at 2 W ithout that support, the establishm ent o f preinspection stations in those countries does not appear possible. 282 Section 235A o f the Immigration and Nationality A ct section 235A as requiring the Executive either to seek or to obtain the consent of foreign countries to the establishment of preinspection stations within their territory. RANDOLPH D. MOSS Assistant Attorney General Office o f Legal Counsel 283

Write a legal research memo on the following topic.

Constitutionality of Awarding Historic Preservation Grants to Religious Properties A court applying current precedent is most likely to conclude that the direct award o f historic preserva­ tion grants to churches and other pervasively sectarian institutions violates the Establishment Clause of the Constitution. October 31, 1995 M e m o r a n d u m O p in io n Departm ent fo r t h e o f the S o l ic it o r In t e r io r At your request, we have reviewed your office’s draft opinion regarding the permissibility under the Establishment Clause of awarding government historic preservation grants to churches and other religious properties.1 In particular, and as we discussed earlier, we have considered whether the Supreme Court’s recent decision in Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995), directly addresses the particular question you have raised. As discussed below, the Rosenberger decision, which deals with a form of government aid to religion significantly different from that at issue here, does not control the case you have presented. Accordingly, we have no occasion here to fully analyze the Rosenberger decision, nor to predict how it might apply in other contexts. Rather, our analysis is guided by Supreme Court case law devel­ oped prior to Rosenberger. We conclude that a reviewing court, applying current precedent, likely would hold that making historic preservation grants to churches and other pervasively sectarian properties is inconsistent with the Establishment Clause. 1. Background Our understanding of the program in question, based primarily on the materials you have provided us, is as follows. Organizations are eligible for historic preservation grants, funded by the federal government and awarded directly by the states, if they are listed on the National Register. Listing on the National Reg­ ister, in turn, depends on satisfaction of fairly detailed criteria measuring “ signifi­ cance in American history, architecture, archeology, engineering, and culture,” including “ integrity of location, design, setting, materials, workmanship, feeling, and association.” See 36 C.F.R. §60.4 (1995). A religious property qualifies for listing if it “ derivfes] primary significance from architectural or artistic distinction or historical importance.” Id. Listing on the National Register is only a threshold condition of grant assistance; the states apparently make their own 1 Draft Memorandum for Roger F. Kennedy, Director, National Park Service, from John D. Leshy, Solicitor, Re: Historic Preservation Grants for Religious Properties (“ Draft Memo” ). 267 Opinions o f the Office o f Legal Counsel in Volume 19 “ determination[s] of needs and project worthiness in selecting projects to be funded from the many applications submitted.” 2 At least since 1981, grants have not been made available to active churches or houses of worship under the program.3 Both the Reagan and the Bush Adminis­ trations took the position that direct financial support of active churches would be inappropriate in light of Establishment Clause concerns.4 The question you have raised is whether that policy may be reversed. Specifically, you have asked whether historic preservation grants may be awarded directly to religious organiza­ tions for the preservation of buildings currently used for religious purposes such as worship and education.5 Directly at issue appear to be grants for the preserva­ tion of active churches or, perhaps, of other religious facilities that would be considered “ pervasively sectarian” under the Supreme Court’s jurisprudence.6 2. Analysis As your draft opinion recognizes, a series of Supreme Court cases decided prior to Rosenberger calls into considerable question any effort by the government to provide monetary assistance directly to pervasively sectarian institutions.7 Because your draft opinion itself discusses this line of authority, we limit ourselves to a brief description of the two-part rule that has emerged to govern direct financial support of religious institutions. First, though the government may include religious institutions that are not pervasively sectarian in neutral programs providing financial assistance, it must ensure that government grants are not used to fund “ specifically religious activity” and are instead channeled exclusively to secular functions. As you note, the Supreme Court has applied this principle quite stringently in a line of closely analogous cases involving school construction and repair grants. In those cases, the Court upheld grants to non-pervasively sectarian religious schools only when the program in question expressly excluded from funding “ any facility used or to be used for sectarian instruction or as a place for religious worship.” Tilton v. Richardson, 403 U.S. 672, 675 (1971) (approving provision of federal construc­ tion grants to colleges and universities with religious affiliations).8 2 Memorandum for Director, Heritage Conservation and Recreation Service, from Associate Solicitor, Conservation and W ildlife, Re: Historic Preservation Grants fo r Renovation o f Church Properties at 1 (M ar. 6, 1979). 3 Draft M emo at 1; Letter for the Honorable Ja n e s G. W att, Secretary o f the Interior, from Frederick N. Khedouri, A ssociate Director, O ffice o f Management and Budget (Dec. 14, 1981) ( “ K hedouri Letter*’). 4 The Reagan Administration appears to h ave rested its position on a policy decision m ade in “ the context o f the legal issues surrounding church-state affairs.” See K hedouri Letter at 1. The Bush Administration relied more expressly on the conclusion that direct grants to active churches would be unlawful under Supreme Court case law construing the Establishm ent Clause. See L etter for the Honorable Peter H. Kostmayer, House o f Representatives, from Robert E. G rady, A ssociate Director, O ffice o f Management and Budget (Mar. 28, 1991). 5 Draft Memo at 2. 6Id. at 6 (assum ing that most if not all potential grantees would be deemed “ pervasively sectarian’’). 7 Id. at 5. 0 See also Hunt v. McNair, 413 U.S. 734, 7 3 6 (1973) (upholding state-financed construction o f college and univer­ sity facilities, subject to same restriction); Roemer v. Maryland Pub. Works Bd.t 426 U.S. 736, 740-41 (1976) 268 Constitutionality o f Awarding Historic Preservation Grants to Religious Properties That the Court conceives of this restriction on use of public funds as both essen­ tial and rather sweeping is illustrated by the Tilton case, holding that the expiration of a restriction after twenty years violates the Establishment Clause: “ If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion.” Id. at 683. The Court made the same point in Nyquist, invalidating maintenance and repair grants to nonpublic schools in part because they lacked “ appropriate restrictions” : “ Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facili­ ties.” 413 U.S. at 774. Importantly, the prohibition on public funding of facilities used for religious activity applies even where the government’s purpose in funding those facilities is concededly secular and “ entirely appropriate for governmental action.” Tilton, 403 U.S. at 678-79; see Nyquist, 413 U.S. at 773-74. The second part of the rule qualifies the first: with or without restrictions, the government may not provide monetary aid directly to “ pervasively sectarian” institutions, defined as institutions in which “ religion is so pervasive that a substantial portion of [their] functions are subsumed in the religious mission.” Hunt, 413 U.S. at 743. The outer boundaries of the “ pervasively sectarian” cat­ egory are not well-defined, see Bowen v. Kendrick, 487 U.S. 589, 631 (1988) (Blackmun, J., dissenting), and the Supreme Court has used it most often — though not exclusively9 — in connection with educational institutions. Nevertheless, we have no doubt that you are correct in assuming that most if not all active houses of worship would fall within this category.10 Indeed, the notion that religion plays something less than a vital and pervasive role in an active church’s mission might appear inconsistent with a proper respect for religious institutions as well as with common sense. As the Court has explained, the reason for the prohibition on direct monetary grants to pervasively sectarian institutions is the unacceptable risk that where sec­ ular and religious functions are “ inextricably intertwined,” government aid, though designated for a secular purpose, will in fact advance the institution’s reli­ gious mission. Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (invalidating provision to pervasively sectarian schools of instructional material “ earmarked for secular purposes” ); Kendrick, 487 U.S. at 610. Again, it is immaterial to this part of the Court’s analysis that provision of assistance would serve a legitimate (upholding provision o f noncategorical state grants to private colleges and universities, where grants may not be used for “ sectarian purposes” ); Committee fo r Pub. Educ. v. Nyquist, 413 U.S. 756, 774 (1973) (invalidating state maintenance and repair grants for nonpublic elementary and secondary schools in part because they lack restrictions on use for religious purposes). 9 At issue in Bowen were a broad range o f social services organizations with religious affiliations. The Court concluded that the Establishment Clause prohibited those organizations that were “ pervasively sectarian” from receiving federal grants under the Adolescent Family Life Act, 42 U.S.C. §§3007-3007-10. 487 U.S. at 620-21. 10 Draft Memo at 6. 269 Opinions o f the Office o f Legal Counsel in Volume 19 secular purpose, see Meek, 421 U.S. at 363; Kendrick, 487 U.S. at 602; what is critical is that the assistance also would have the effect of advancing religion because of the pervasively sectarian character of the recipients. Meek, 421 U.S. at 363. And even if it were possible, as a theoretical matter, to channel government funds exclusively to secular functions in such institutions, the degree and kind of governmental monitoring necessary to ensure compliance with the requisite funding restrictions would itself raise Establishment Clause problems. Kendrick, 487 U.S. at 616-17. We think that these concerns would be implicated squarely were the government to provide churches and other pervasively sectarian facilities with historic preservation grants. The draft opinion suggests that such grants might be permis­ sible if restricted to the preservation of “ secular elements” of otherwise religious buildings — that is, if government assistance were used only for such purposes as exterior renovation, roof repair, and replacement of structurally necessary internal components.11 What underlies the Court’s decisions in this area, however, is an understanding that in the context of pervasively sectarian facilities, “ secular elements” simply cannot be identified and separated from the overall religious mission. Indeed, renovation of active churches and other houses of worship appears to be a case in point. Though a structural element like a roof can be characterized as “ secular” rather than “ sectarian” in most contexts, the distinc­ tion cannot be maintained in any meaningful sense when the roof is a component part of an active church. Moreover, even if such a distinction could be defended in the abstract, efforts by the government to identify those elements of a house of worship that do not have “ direct religious import” 12 could well involve the kind of “ monitoring for the subtle or overt presence of religious matter” prohibited by the Establishment Clause. See Hernandez v. Commissioner, 490 U.S. 680, 694 (1989). It is our understanding that even the most basic structural features of a church may carry symbolic religious import.13 Determining whether that is the case in any given instance may require an inquiry into religious doctrine or belief that would impermissibly entangle the government in religious affairs. See id. at 696-97 (“ [Requiring the Government to distinguish between ‘secular’ and ‘religious’ benefits or services [provided by Church of Scientology auditing sessions] may be fraught with the sort of entanglement that the Constitution forbids.’ ” ). In short, "Id. at 3, 7. '2 / i at 3. 13 “ Besides individual ornam ents and architectural features, the [church] structure, taken as a whole, can be a sym bol o f the entire religion: ‘The visible church building was both a symbol and model for the invisible or “ spiritual” church. . . . The church was considered to be a tangible expression o f a host of images and ideas expressed in the Bible. It was the body o f Christ, a c ity o f refuge, the New Jerusalem, G od's presence among m en.’ ” Thom as Pak, Note, Free Exercise, Free Expression, and Landmarks Preservation, 91 Colum. L. Rev. 1813, 1841 (1991) (quoting Paul Clowney, & Tessa Clow ney, Exploring Churches 65 (1982)). 270 Constitutionality o f Awarding Historic Preservation Grants to Religious Properties we do not think that it is feasible, in theory or practice, to differentiate between religious and secular elements of active houses of worship. This is, we note, the conclusion reached in a different context by the Wash­ ington Supreme Court in First Covenant Church v. City o f Seattle, 840 P.2d 174 (Wash. 1992) (en banc). In holding that the Free Exercise Clause prohibited application of a landmark ordinance to restrict a church’s ability to alter its exte­ rior, the court relied in part on the inextricable link between the church’s structure and its religious message: the “ church building itself ‘is an expression of Christian belief and message’ and . . . conveying religious beliefs is part of the building’s function. . . . The relationship between theological doctrine and architectural design is well recognized.” Id. at 182. The court went on to reject an attempted separation of religious from secular elements, finding that the ordinance’s excep­ tion for “ alterations necessitated by changes in liturgy” was unworkably vague: “ Would a wider door to permit access by handicapped parishioners comprise a liturgical change? Although . . . widening the door does not relate directly to the rites or procedures of worship in the church, it does facilitate the ability of disabled persons to participate in religious services and activities. "Id. at 184 (quoting prior decision in First Covenant Church v. City o f Seattle, 787 P.2d 1352, 1360 (Wash. 1990) (en banc)). Though we take no position on the ultimate deci­ sion in First Covenant,14 we do think that the court’s reasoning on this issue is persuasive. There is one additional feature of the historic preservation grant program that bears emphasis here. In recent cases upholding the provision of certain benefits to religious groups or for religious expression, it has been important to the Court that the benefit in question is generally available to all interested parties, on a religion-neutral and near-automatic basis. See Rosenberger, 515. U.S. at 840-45 (subsidization of printing costs generally available to all student publications); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757-59, 763 (1995) (access to public square generally available for all displays); Westside Community Bd. o f Educ. v. Mergens, 496 U.S. 226, 252 (1990) (O’Connor, J.) (access to school facilities available to all student clubs, with students free to organize additional clubs). Provision of benefits to religious groups or expression in this context, the Court has reasoned, is most unlikely to reflect or convey any endorsement of or preference for religion. Id.; see Pinette, 515 U.S. at 763-66. Historic preservation grants, by contrast, do not appear to be generally available in the same sense. Properties, including religious properties, qualify for initial listing on the Historic Register only if they meet subjective criteria pertaining to architectural and artistic distinction and historical importance. Once listed, prop­ l4We note that at least one other court has upheld against a Free Exercise Clause challenge the application of a landmark restriction to prevent a church from erecting a commercial office tower on its property. Si. Bartholomew's Church v. City o f New York, 914 F.2d 348 (2d Cir. 1990), cert, denied, 499 U.S. 905 (1991). Because the church’s claim in that case centered on lost revenue rather than on structural integrity, the court did not address the issues analyzed in First Covenant. See First Covenant, 840 P.2d at 181 (distinguishing Si. Bartholomew’s). 271 Opinions o f the Office o f Legal Counsel in Volume 19 erties are eligible to compete for grants based on additional measures of “ project worthiness” established by the states. Participation by pervasively sectarian institutions in this kind of competitive grant program raises special concerns, absent in cases like Rosenberger, Pinette, and Mergens, that application of nec­ essarily subjective criteria may require or reflect governmental judgments about the relative value of religious enterprises. We understand that the Second Circuit’s decision in Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991), suggests in dicta that the Establishment Clause prohibi­ tion on direct funding of pervasively sectarian institutions may admit of exceptions in certain cases. We do not believe it appropriate, however, to rely on that case here. First, as your draft opinion appears to recognize, the portion of Lamont at issue is at best in considerable tension, and at worst inconsistent, with governing Supreme Court precedent. Second, even if the standard advanced in Lamont could be defended, we are not convinced that it would apply in this context. The Lamont court suggested that it might approve funding of a pervasively sec­ tarian institution if (i) the government had a compelling interest in providing funds; and (ii) the court could assure itself that the grant would not in fact advance religion. 948 F.2d at 842. At issue in Lamont was assistance to pervasively sec­ tarian schools abroad, with the stipulation that no government funds be used to “ construct buildings or other facilities intended for worship or religious instruc­ tion.” Id. at 828. For present purposes, we will assume with the Lamont court that a pervasively sectarian school’s religious mission might not be advanced by funding of a separate facility, such as a gym, used only for secular purposes. Whether or not this is so, however, it simply does not follow that the government also may fund the preservation of facilities that are “ intended for worship or religious instruction” without impermissibly advancing religion. Moreover, we hesitate to assume that a court would find the government’s interest in historic preservation sufficiently “ compelling” to trigger the Lamont analysis in the first instance. Again, we note that the court in First Covenant rejected such a claim: “ [T]he City’s interest in preservation of esthetic and historic structures is not compelling and it does not justify the infringement of First Covenant’s right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom.” 840 P.2d at 185. Finally, as noted above, the Court’s decision in Rosenberger does not address the issue posed by your inquiry to us. Rosenberger does, however, acknowledge the Establishment Clause principle against “ direct money payments to sectarian institutions,” citing most of the same cases we discuss here. 515 U.S. at 842. The Court goes on to approve assistance to a student religious publication on the grounds that the principle identified is not implicated: the program in question neither involves the payment of public funds directly to recipients nor includes religious institutions “ in the usual sense of that term” among its beneficiaries. 272 Constitutionality o f Awarding Historic Preservation Grants to Religious Properties Id. at 842-44. Indeed, the Court places special emphasis on the second factor as it applies to churches, carefully distinguishing the case before it from one involving direct or indirect public aid to a church. Id. at 844. Rosenberger, to be sure, emphasized the importance of neutrality in upholding governmental pro­ grams against Establishment Clause challenge, clarifying that the Establishment Clause does not “ justiffy], much less requiref], a refusal to extend free speech rights to religious speakers who participate in broad-reaching government pro­ grams neutral in design.” Id. at 839. Nevertheless, we do not believe that at the present time there is authority for a departure, in the context presented here, from the rule against providing funds directly to churches and other pervasively sec­ tarian institutions. As you know, the question of government aid to religious institutions is a very difficult one. The lines separating permissible from impermissible assistance are sometimes hard to discern, and, as Rosenberger indicates, the Supreme Court’s jurisprudence in this area is still developing. We think, however, that a court applying current precedent is most likely to conclude that the direct award of historic preservation grants to churches and other pervasively sectarian institutions violates the Establishment Clause. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 273

Write a legal research memo on the following topic.

July 28, 1977 77-44 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Disposition of Nixon Memorabilia This is in response to your request for our opinion with respect to the proper disposition of the personalized memorabilia of former Presi­ dent Nixon, which were left in the Old Executive Office Building when he resigned on August 9, 1974. The memorabilia are now in custody of the White House Gift Unit, a part of the White House Office. We understand that most of these items were acquired with private funds or by the Republican National Committee for the use of President Nixon. The remainder are gifts to him by private persons. We further under­ stand that the Gift Unit’s records allow it to determine the source of the particular items.1 It should be noted at the outset that the materials include copies of White House documents prepared for President Nixon. Under § 101(b) o f the Presidential Recordings and Materials Preservation Act, 44 U.S.C. §2107 note, these and any other docu­ ments are historical materials that must be turned over to the Adminis­ trator o f General Services. See 44 U.S.C. §2101; H.R. Rep. 93-1507, 93rd Cong., 2d Sess., at 9. The remainder of the memorabilia, which were purchased with pri­ vate funds, were originally the property of the purchasers rather than o f the United States Government.2 Due to the circumstances in which they were found, they have, however, become the property of the 1 C ertain o f the item s appear to have been purchased in the People’s R epublic o f C hina du rin g President N ixon's tour. F o r example, a three-piece tea set was listed in the G ift U nit’s inventory. W e are inform ed by the G ift U nit that these are private purchases and not official gifts from the People’s Republic. It should be noted, however, that under the Foreign Gifts and D ecorations A ct o f 1966, 5 U.S.C. §7342, any gift from a foreign governm ent o r its agent o f m ore than minimal value is accepted on b e h alf o f the U nited States and becom es the property o f the U nited States. T h e President, m em bers o f his staff, and m em bers o f their families are subject to this statute. 5 U .S.C. § 7342(a)(1). U nder regulations prom ulgated by the D ep artm en t o f State, such gifts a re to be deposited w ith the C hief o f P rotocol. 22 C F R § 3.5(c). G ifts o f minimal value rem ain the pro p erty o f the recipient, but the burden o f show ing m inim al value is on him. 22 C F R § 3.5(b). 1 W e d o not have the inform ation necessary to determ ine the respective interests, if any, o f th e private purchases. 180 United States under 40 U.S.C. §484(m). That statute authorizes the Administrator of General Services “to take possession of abandoned or other unclaimed personal property on premises . . . owned by the United States, to determine when title thereto vested in the United States, and to utilize, transfer, or otherwise dispose of such property.” Under regulations promulgated by the General Services Administration (GSA), title to abandoned or unclaimed property on Government premises vests in the United States 30 days after it is found, except that title reverts to the former owner if he files a claim before the property is used, transferred to another agency for use, or sold.3 “Abandoned or unclaimed property” includes any personal property found on G overn­ ment premises.4 Because the Nixon memorabilia were found more than 30 days ago, title thereto has vested in the United States, subject any claim by the former owners. Under the GSA regulations, the agency that finds the property is responsible for it and must either use it or report it to GSA as excess property.5 Once the property is reported, GSA will either furnish it to other Federal agencies or dispose of it as surplus.8 The former owner is entitled to payment for the reasonable value of any abandoned or unclaimed property used by the United States or to the proceeds of any sale.7 As the Agency that found the memorabilia, the White House Office is responsible for their custody, for evaluating claims for their return, and for reporting unusable items to GSA.8 Neither the statute nor the regulations requires the finding agency to notify possible former owners that the property has been found before it is disposed of. However, due process of law requires that potential claimants be given reasonable notice and an opportunity to submit claims before the United States cuts off their right to have unclaimed s 41 C F R § 101-43.403.1. •41 C F R § 101-43.401(a). •41 C F R §§ 101-43.403-1, 101-43.403.2. •See 41 C F R §§ 101-43.301, 101-43.318-1, 101-45.404(b). Sales are conducted by G S A and are norm ally by sealed bids, spot bids, o r auction. See, generally, 41 C F R §§ 10145.301, 101-45.304. A bandoned o r unclaim ed property m ay be sold at any tim e after title vests in the United States. 41 C F R § 101-45.404(b). 7 40 U.S.C. § 484(m); 41 C F R §§ 101-43.403.4, 101-45.401.1. Claim for paym ent must be m ade w ithin 3 years o f the date that title vested in the United States. 40 U.S.C. § 484{m). • T h e W hite House Office is w ithin the m eaning o f the term “executive agency" as defined in the statute and regulations. See 40 U.S.C. § 472(a); 41 C F R § 101-43.001-6. 181 property returned.® See, Security Savings Bank v. California, 263 U.S. 282, 287 (1923); C f, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 311-13 (1950). When the names and addresses of potential claim­ ants are known or can be found through ordinary diligence, due proc­ ess requires that they be given actual notice by mail. See, Mullane v. Central Hanover Trust Co., supra, at 315-20. The W hite House Office should therefore notify Mr. Nixon, the Republican National Committee, and any other persons who your rec­ ords indicate may have owned the memorabilia before any action is taken to use or dispose o f them. The notice should state that the described items were apparently abandoned on August 9, 1974, that the United States took title to them under 40 U.S.C. § 484(m) and 41 CFR § 101-43.403-1 on September 9, 1974, that the former owners can file a claim o f ownership within 30 days,10 and that any property that is not claimed by its former owner within that time will be reported to GSA for disposal as surplus property under 41 CFR § 101-45.404(b).11 Items which are not successfully claimed should be reported to GSA for disposal through normal channels. L arry A. H ammond Deputy Assistant Attorney General Office o f Legal Counsel * Since abandonm ent results from the form er ow ner’s intent to divest him self o f all interest in the property, appropiration by the U nited States o f abandoned p roperty would not appear to be a taking of a p ro p e rty right. See, generally, United States v. Cowan, 396 F. 2d 83, 87 (2d C ir. 1968); Nippon Shoshen Kaisha, K.K. v. United States, 238 F. Supp. 55, 58 (D . Cal. 1964); 1 Am . Jur. 2d “ A bandoned P roperty,” § 16, at p. 16. Strictly speaking, notice to the form er ow ner w ould not be constitutionally required. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 316 (1950). H ow ever, intent to abandon is a question o f fact, so th at reasonable notice is required before determ ining w hether p roperty is aban­ doned o r m erely unclaimed. Anderson National Bank v. Luckett, 321 U.S. 233, 246 (1944). M oreover, failure to respond to personal notice is evidence o f intent to abandon. See 1 Am . Jur. 2d, supra, § 16 at pp. 16-17. 10 T his is an arb itrary figure th a t appears to provide a reasonable time for response. 11 T h e form for the report is set forth at 41 C F R § 101-43.311-2. 182

Write a legal research memo on the following topic.

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 o f certain streets located along the perimeter o f the White House. M ay 12, 1995 M e m o r a n d u m O p in io n D epartm ent for th e o f th e G eneral C oun sel T reasury This is in response to your request for a legal opinion from the Office of Legal Counsel (“ OLC” ) on whether the Secretary of the Treasury (“ Secretary” ) has the authority to order the closing to vehicular traffic of (1) Pennsylvania Avenue between 17th Street and Madison Avenue, (2) State Place, and (3) the segment of South Executive Avenue that connects into State Place in furtherance of his responsibility to protect the President under 18 U.S.C. §3056. Based on a review of §3056 and related statutes, their legislative histories, and relevant court and OLC opinions, we conclude that §3056 grants the Secretary broad authority to take actions that are necessary and proper to protect the President. In light of the recommendations of the White House Security Review and the United States Secret Service’s unique expertise and special responsibility in this matter, we agree with your conclusion that § 3056 authorizes the actions contemplated by the Sec­ retary. I. Background The White House Security Review, which was recently established by former Treasury Secretary Bentsen to examine White House security issues, has deter­ mined that “ there is no alternative to prohibiting vehicular traffic on Pennsylvania Avenue that would ensure the safety of the President and others in the White House complex from explosive devices carried by vehicles near its boundaries.” Request for Legal Opinion from Edward S. Knight, General Counsel, U.S. Depart­ ment of Treasury, to Walter E. Dellinger, III, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice 1 (May 10, 1995). You have informed this Office that in light of the Secretary’s responsibilities to protect the President under § 3056, he is considering ordering the closing to vehicular traffic of portions of three streets that bound the grounds of the White House: (1) Pennsylvania Avenue between 17th Street and Madison Avenue, (2) State Place, and (3) the segment of South Executive Avenue that connects into State Place. Id. You have also informed this Office of your view that the conclusion of the 109 Opinions o f the Office o f Legal Counsel in Volume 19 White House Security Review provides sufficient factual support for the Secretary to exercise his authority to close the streets mentioned above. Id. W e have been informally advised that in the past, the Secret Service has taken, on a temporary basis, actions similar to those contemplated. These actions have included closing streets and portions of highways to protect the President while traveling, closing parking garages to safeguard him against bomb threats, restricting airspace over the President, and cordoning off areas in hotels in which the President was present.1 The Secret Service has also, on occasion, temporarily closed certain streets around the perimeter o f the White House, including Pennsyl­ vania Avenue.2 II. Legal A nalysis A. Statu tory A u thority 1. Section 3056 Section 3056 provides, in pertinent part, that: [u]nder the direction o f the Secretary of the Treasury, the United States Secret Service is authorized to pro tect. . . (1) The President, the Vice President (or other officer next in the order o f succession to the Office of President), the President-elect, and the Vice President-elect [and] (2) The immediate families of those individuals listed in paragraph ( 1). 18 U.S.C. § 3 056(a)(lM 2). In addition to that broadly-stated authority, officers and agents of the Secret Service are authorized, under the direction of the Secretary, to perform certain enumerated functions,3 and to “ perform such other functions and duties as are 1W e have been advised by the Department o f the Treasury that the Secret Service has historically taken these steps pursuant to its authority under 18 U .S.C . §§3056 and 1752, and 3 U.S.C. §202. W e have also been informed that the Secret Service generally takes such actions with the assistance o f state and local law enforcement officials. 2 The Department o f the Treasury has inform ed us that East Executive Drive was permanently closed to vehicular traffic by the National Park Service in 1985. According to the Department o f the Treasury, when the Park Service closed East Executive Drive, it consulted with the District o f Colum bia's Department o f Transportation but did not file an application for street closing un d er the District o f C olum bia’s street closing procedures. 3 Such functions include the ability to: (A ) execute w arrants issued under th e laws o f the U nited States; (B) carry firearms; (C) make arrests without warrant fo r any offense against the U nited States committed in their presence, o r for any felony cognizable under the laws o f the United States if they have reasonable grounds to believe that the person to be arrested has com m itted or is committing such felony; (D ) offer and pay rewards for services and information leading to the apprehension o f persons involved in the violation or potential violation o f those provisions o f law w hich the Secret Service is authorized to enforce; no Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House authorized by law.” 18 U.S.C. § 3056(c)(1)(F). Aside from expressly granting cer­ tain powers generally afforded federal law enforcement personnel, the statute does not attempt to enumerate the specific actions the Secret Service may take in ful­ filling its responsibility to protect the President. The legislative history of § 3056 also does not include any enumeration of the specific actions the Secretary may take to protect the President. Although the Secret Service has routinely protected the President since the assassination of President McKinley in 1901, see S. Rep. No. 82-467, at 2-3 (1951), Congress did not provide explicit formal authority for this role until 1951. See Pub. L. No. 82-79, 65 Stat. 121, 122 (1951). Neither the congressional report language nor the floor debates concerning the authorizing legislation elaborate upon the activities and functions Secret Service officials may undertake in protecting the President. Moreover, subsequent amendments to §3056 pertaining to the Secret Service’s protection duties merely expanded the group of officials over which the Secret Service has protective responsibilities, without delineating how the protec­ tion is to be accomplished. Although both the language of §3056 and its legislative history are silent as to specific protective acts, the language and legislative history of 18 U.S.C. § 1752, which authorizes the Secretary to designate and regulate temporary residences of the President, provide some insight into the scope of the Secret Service’s authority under §3056 with respect to the environs of the White House. Section 1752 was apparently intended to provide the Secret Service with authority to provide the same degree of protection for the President outside the vicinity of the White House as Congress believed the Secret Service could exercise, under §3056, within the vicinity of the White House. Section 1752 grants the Secretary the authority to “ designate by regulations the buildings and grounds which constitute the tem­ porary residences of the President.” 18 U.S.C. § 1752(d)(1). It also allows the Secretary “ to prescribe regulations governing ingress or egress to such buildings and grounds and to posted, cordoned off, or otherwise restricted areas where the President. . . is or will be temporarily visiting.” Id. § 1752(d)(2). The legislative history of the statute suggests that, when enacting § 1752, Con­ gress believed the Secret Service already had similar or greater authority to control access to the environs of the White House. In 1969, Senator Hruska introduced S. 2896, stating that its purpose was “ to provide more effective control over unauthorized entry into the temporary residence of the President, and any buildings which are being temporarily used as executive office buildings.” 115 Cong. Rec. 25,436 (1969) (statement of Sen. Hruska). The Senate Judiciary Committee report accompanying S. 2896 stated that the bill would “ extend Federal protection to temporary residences and offices of the President.” S. Rep. No. 91-1252, at 6 (E) pay expenses for unforeseen emergencies o f a confidential nature under the direction o f the Secretary o f the Treasury and accounted for solely on the Secretary’s certificate. 18 U.S.C. § 3056(c)(1). Ill Opinions o f the Office o f Legal Counsel in Volume 19 (1970) (emphasis added). The report also mentioned that the bill was “ designed to provide a uniform minimum of Federal jurisdiction for Presidential security when the President is on temporary visits,” id., noting the testimony of the Director o f the Secret Service that “ [f]rom a security standpoint, the President is most vulnerable when he is outside the White House complex traveling or residing temporarily in some other section of the country” and “ the enactment of . . . [the] legislation is necessary in order to guarantee the safety of the Presi­ dent when he is temporarily absent from the Executive residence.” Id. at 7. Finally, reflecting the belief that federal law already was adequate to ensure protection of the President within the vicinity of the White House, the report opined that “ [although the Secret Service is charged with protecting the person o f the P resid en t. . . there is, at the present time, no Federal statute which specifi­ cally authorizes them to restrict entry to areas where the President maintains tem­ porary residences or offices.” Id. Similar themes were expressed during floor debate on the bill. In describing the problems confronting the Secret Service when protecting the President outside o f W ashington, Senator McClellan stated: Protecting the President . . . is a formidable task for the Secret Service, which is charged with safeguarding the personal life of the President. As difficult as this task is, however, it is rendered even more difficult because the Secret Service’s present powers are somewhat limited. Title 18, section 3056 of the United States Code authorizes the Secret Service to protect the life of the President, but does little more. Consequently, the Service must rely upon a patchwork of State laws and local ordinances and local officers to clear areas for security perimeters, to provide for free ingress and egress when the President is visiting, and to protect the President’s private homes from trespassers. 116 Cong. Rec. 35,651 (1970) (statement o f Sen. McClellan). Moreover, Senator Hruska, speaking in support of the legislation, declared: [Under S. 2896, the] Secretary of the Treasury would be authorized to designate by regulations buildings and grounds which are tem­ porary residences of the President and temporary offices of the President and his staff. The Secretary also would be authorized to prescribe regulations for admission to such buildings and grounds and to post or cordon off restricted areas where the President is or will be temporarily visiting . . . . It would be unconscionable not to recognize the obvious fact that the President’s vulnerability is maximized when he is traveling or residing temporarily in 112 Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House another section of the country. It would be unconscionable not to recognize the obvious fact that the Secret Service does not presently possess adequate Federal authority during these most vulnerable occasions. This body cannot ignore the obvious responsibility and duty it has at this moment to create the needed protection and authority. 116 Cong. Rec. 35,653 (1970) (statement of Sen. Hruska).4 It is clear that Congress did not perceive that it was giving the Secretary greater power to protect the President when he was away from the White House than when he was within it. Rather, the language and legislative history of § 1752 reflect a belief that the authority afforded by § 1752 with respect to temporary residences already was available with respect to the President’s permanent resi­ dence, the White House. Section 1752 plainly grants the Secretary authority to limit ingress and egress to an area where the President will be visiting to create a security perimeter, even when creating such a perimeter will require the closing of a public street to vehic­ ular traffic. Since congressional action did not reflect any intent to give the Sec­ retary greater authority under § 1752 than exists under § 3056, it would be incon­ gruous for us to conclude that the Secretary has such authority with respect to temporary presidential residences but lacks the authority to limit ingress and egress to an area to create an appropriate security perimeter around the WTiite House. Turning back to the language of § 3056, we note again that Congress painted the Secret Service’s Presidential protection authority with a broad brush. That treatment seems reasonable, given the nature of Presidential protection services. Protecting the President requires a certain amount of flexibility to respond quickly to changing and often potentially dangerous situations. Too tight a rein on the authority of the Secret Service would compromise Presidential security. As we have stated in affirming the authority of the Secret Service, under §3056, to cordon off the area in the vicinity of the White House as a protective measure in anticipation of large-scale demonstrations, “ the Secret Service may not have unlimited powers in protecting the President but its powers are broader than rou­ tine public safety measures. The test to be applied, it seems, is whether, given the overwhelming interest in protecting the President and his performance o f his duties, the measures taken are reasonable under the circumstances.” Memorandum for Honorable Robert E. Jordan, III, General Counsel, Department of the Army, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 11 (Nov. 12, 1969). Relevant case law confirms this broad view. The Supreme Court has recognized that “ [t]he Nation undoubtedly has a valid, even an overwhelming, interest in 4 S. 2896 was passed by the Senate on Oct. 8, 1970, see 116 Cong. Rec. 35,654 (1970), and incorporated into the Omnibus Crime Control Act o f 1970, Pub. L. No. 91-644, tit. V, § 18, 84 Stat. 1880, 1891 (1971). 113 Opinions o f the Office o f Legal Counsel in Volume 19 protecting the safety of its C hief Executive and in allowing him to perform his duties without interference from threats o f physical violence.” Watts v. United States, 394 U.S. 705, 707 (1969). See also White House Vigil fo r the ERA Com­ m ittee v. C lark , 746 F.2d 1518, 1528 (D.C. Cir. 1984) (“ At stake is not merely the safety o f one man, but also the ability of the executive branch to function in an orderly fashion and the capacity of the United States to respond to threats and crises affecting the entire free world” ). Accordingly, courts have construed the Secretary’s authority under §3056 broadly, even in the face of constitutional challenges. In fact, the only limitation the courts have recognized on the Sec­ retary’s authority has been the Constitution. Where, for example, first amendment rights have been implicated, courts have balanced the Secret Service’s interest in protecting the President against the first amendment rights of those burdened by such actions.5 Even in the first amendment context, however, courts have been careful to allow the Secret Service latitude in acting to protect the President. In a decision con­ cerning the Secret Service’s denial of a White House press pass to a journalist, the D.C. Circuit required the Secret Service to publish the standards it uses to determine W hite House press pass eligibility. In delineating the requirements imposed on the Secret Service, however, it agreed with the Secret Service that the first amendment did not require “ detailed articulation of narrow and specific standards or precise identification of all the factors which may be taken into account in applying [the] standard.” Sherrill, 569 F.2d at 130. The court stated that “ [i]t is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of . . . danger to the President and/or his immediate family so serious as to justify his exclusion.” Id. (citation omitted). Arguing that this more flexible approach was appropriate given the mis­ sion o f the Secret Service, the court declared that “ [t]his standard is sufficiently circumspect so as to allow the Secret Service, exercising expert judgment which frequently m ust be subjective in nature, considerable leeway in denying press passes for security reasons.” Id. The court also indicated its belief that courts should be “ appropriately deferential to the Secret Service’s determination of what justifies the inference that an individual constitutes a potential risk to the physical security of the President or his fam ily.” Id. Courts have allowed the Secret Service even more latitude outside of the first amendm ent context. In Scherer v. Brennan, 379 F.2d 609 (7th Cir.), cert, denied, 389 U.S. 1021 (1967), the court found within the scope of the Secret Service’s duties to protect the President the barring o f a federally-licensed firearms dealer 5 See A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117-18 (D.C. Cir. 1969). See also Sherrill v. Knight, 569 F.2d 124, 128 n.14 (citing A Quaker Action Group, 421 F.2d at 1117 ( “ [t]he congressional grants o f authority to the Secret Service to protect the President . . . and to control access to temporary presidential residences . . . cannot be said to authorize procedures or actions violative o f the Constitution . . . . [W]e cannot agree with the G overnm ent's argum ent that m ere mention o f the President’s safety must be allowed to trum p any First Amendment issue” )). 114 Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House from his own home and his constant surveillance even though he had voiced no direct threat to the President. The appellant argued that this invasion of privacy was illegal under the Supreme Court’s analysis in Camara v. San Francisco, 387 U.S. 523 (1967) (holding that the fourth amendment requires a warrant for inspec­ tion of private premises by health inspectors unless the occupant consents thereto). In rejecting appellant’s argument, the court stated, “ Here, the need to protect the President of the United States from possible physical harm would justify measures that might not be considered appropriate in routine health inspections.” Scherer, 379 F.2d at 612. 2. Section 202 In addition to the broad authority to protect the President granted in §3056, 3 U.S.C. §202 grants the “ United States Secret Service Uniformed Division” authority to perform duties prescribed by the Secretary to protect the “ White House in the District of Columbia” and “ any building in which Presidential offices are located.” This provision makes clear that the Secretary has authority to direct not only such action as is necessary to protect the person of the President but also the White House itself and the Old Executive Office Building, which is also bounded by the designated streets. The language and legislative history of §§3056 and 1752, the authority granted in §202, the court decisions, and former opinions of this Office suggest that while the Secretary’s authority to protect the President may not be unlimited, the Sec­ retary may take such actions as are consistent with the Constitution, not prohibited by statute, and reasonable under the circumstances for the protection of the Presi­ dent in the performance of his duties. We perceive no constitutional impediment to the closing of the designated streets. Consequently, given the conclusions of the WTiite House Security Review with respect to the vulnerability of the White House, the Secretary would appear to have the authority to expand the security perimeter of the White House by closing the designated streets if the Secretary concludes that such action is reasonably necessary to protect the President. We now turn to consideration of whether any other statutes prohibit or limit such action. B. Other Relevant Statutes Other congressional grants of authority that could arguably apply to the streets at issue do not diminish the Secretary’s authority to close them to vehicular traffic. We will discuss each such congressional grant of authority in turn. 1. District of Columbia Street Closing Authority The District of Columbia government has exercised the power to close streets and transfer title within the District of Columbia since 1932, when Congress, 115 Opinions o f the Office o f Legal Counsel in Volume 19 pursuant to its plenary powers over the District of Columbia,6 granted it such authority. See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 111 (D.D.C. 1986) (citing S. Rep. No. 72-688, at 3 (1932)). When Congress passed the District of Columbia Self-Government and Governmental Reorganiza­ tion Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified at D.C. Code Ann. §§1-211 to -299) (“ Home Rule Act” ), it delegated to the present District of Columbia government all powers that had been granted to the previous govern­ ment, see D.C. Code Ann. § l-227(a), including the power to close streets. D.C. Code Ann. §§7-421 to -428 authorize the District of Columbia City Council (“ D.C. Council” ) to close streets within the District of Columbia. The street closing process established by the D.C. Council requires referral of street closing applications to the National Capital Planning Commission for review and recommendation, to the Advisory Neighborhood Commissions affected, and to abutting property owners. See D.C. Code Ann. at § 7-422. We do not believe D.C. Code Ann. §§7-421 to -428 or the Home Rule Act prevent the Secretary from closing the streets at issue. First, in passing the Home Rule Act, Congress provided that the D.C. Council shall have no authority to “ [e]nact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District.” Id. at § l-233(a)(3). Rejecting the United States’ assertion that the D.C. Council’s act of closing a governmentowned street in Northwest Washington violated this provision, the court in Techworld stated: [T]he limitation of § 1-233 is included to ensure that the local government does not encroach on matters of national concern. It withholds authority over property used by the United States in connection with federal governmental functions, and over property of national significance. The Council may not concern itself with the Lincoln Memorial, or the White House, or with the United States Courthouse. The closing of a small street in Northwest Wash­ ington, however, is precisely the sort of local matter Congress wishes the D.C. Council to manage. Techworld, 648 F. Supp. at 115. See also District o f Columbia v. Greater Wash­ ington Cent. Labor Council, AFL-CIO, 442 A.2d 110, 116 (D.C. 1982), cert, denied, 460 U.S. 1016 (1983) (quoting legislative history of the Home Rule Act: “ The functions reserved to the federal level would be those related to federal operations in the District and to property held and used by the Federal Government for conduct of its administrative, judicial, and legislative operations; and for the monuments pertaining to the nation’s past” ). See also id. at 116 n.l (quoting 6 See U.S. Const, art. I, § 8 , cl. 17. 116 Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House Hearings on Self-Determination for the District o f Columbia, pt. 2, 93d Cong. 52 (1973) (statement of John Nevius, former Chairman of the Council) (“ For the purposes of identifying these Federal functions, we are speaking basically of three things: First, the function regarding Federal buildings and properties; second, the conduct of Federal business . . . and third, the function of international rela­ tions and matters concerning the diplomatic corps” )). Here, unlike the situation in Techworld, Congress has delegated by statute to the Secret Service the indisputably federal function of protecting the President. In this context, we believe that D.C. Code Ann. § l-233(a)(3) establishes that the D.C. Council may not assert its authority where doing so would interfere with the Secret Service’s ability to carry out its congressionally-mandated function of protecting the President. Second, the streets slated for closing are located within the National Capital Service Area, a geographic area comprising many of our national governmental buildings and monuments, the White House, the National Mall and other areas, over which Congress in the Home Rule Act reserved some federal administrative authority. Section 739 of the Home Rule Act (codified at 40 U.S.C. § 136), estab­ lished the National Capital Service Area. It also established the position of a presidentially-appointed National Capital Service Director within the Executive Office of the President and charged that office with assuring “ that there is provided . . . adequate police protection and maintenance of streets and highways” within the National Capital Service Area. 40 U.S.C. § 136(b). The National Capital Service Area provision was added to the Home Rule Act as a floor amendment. Suggesting that the National Capital Service Area was an area of heightened federal interest within the District of Columbia, the chief sponsor of the amendment, Representative Green, stated that the National Capital Service Director “ would have jurisdiction [within the area] over the police depart­ ment, fire protection, over sanitation, the streets, the roads and the accesses to them.” 119 Cong. Rec. 33,611 (1973) (statement of Representative Green). See also id. at 33,645 (“ the President would appoint a Director of Federal Area Serv­ ices who would be responsible for police protection, fire protection, sanitation, the streets, and access roads” ). While the language and legislative history of the provision do not suggest that the District of Columbia has no jurisdiction over the National Capital Service Area, they do suggest that Congress considered the federal government’s interest in areas within the National Capital Service Area to be greater and more important than its interest in areas outside the National Capital Service Area. We believe this reservation of federal governmental interest further supports the Secret Service’s authority to take unilateral action in closing 117 Opinions o f the Office o f Legal Counsel in Volume 19 streets within the National Capital Service Area in an effort to protect the Presi­ dent.7 2. Administrative Procedure Act You have also raised the issue of whether the Secretary’s action would con­ stitute a “ rule” as defined by the Administrative Procedure Act (“ APA” ), 5 U.S.C. §551(4), see generally id. §§551-559, thereby triggering the requirement to provide “ interested persons” with notice and opportunity to comment as a part of the rulemaking process. We believe that the Secretary could successfully argue that the notice and comment requirements of the APA do not apply because his action in closing the streets at issue to provide protection for the President is not a “ rule” within the meaning of §551(4). Moreover, if the federal govern­ ment owns the streets in question, any action to close them would be exempt from the APA pursuant to the “ public property” exception in § 553(a)(2). The APA defines “ rulemaking” as “ agency process for formulating, amending, or repealing a rule.” Id. §551(5). In defining a “ rule” , the APA identifies several components: a rule may be “ o f general or particular applicability” ; it must be of “ future effect” ; and must be “ designed to implement, interpret, or prescribe law or policy” or must “ describe[] the organization, procedure, or practice requirements of an agency.” Id. § 551(4). We do not believe that closing the affected streets in order to protect the Presi­ dent is the sort of action that Congress intended to be subject to the APA’s notice and comment process. A decision to close the streets would not be designed to “ implement, interpret, or prescribe law or policy” so as to provide guidelines or procedures for parties to follow in the future. To the contrary, the Secretary’s action in closing the streets would be an isolated agency action that does not affect or govern subsequent agency acts or decisions. Daingerfield Island Protec­ tive Soc’y v. Babbitt, 823 F. Supp. 950, 957 (D.D.C. 1993) (National Park Service approval of design for interchange connecting George Washington Memorial Park­ way and island in Potomac River was not a “ rule” under 5 U.S.C. §551(4)). The Secretary would be acting in a particular situation based on a unique set of facts, pursuant to a statute authorizing his agency personnel, the Secret Service, to protect the President. We do not believe that this unilateral action executing such a decision is the sort of government action that Congress contemplated in defining a “ rule” for purposes of the APA.8 7 W e are aw are o f only one District o f Columbia court decision discussing the National Capital Service Area. The lim ited analysis presented in that opinion supports o ur view that the federal government exercises greater adm inistrative authority over areas within the National Capital Service A rea than it exercises with respect to other areas w ithin the District o f Columbia. In rejecting a claim that Congress had not delegated to the District o f Columbia the authority to tax personal property w ithin the National Capital Service Area, the court in Itel Corp. v. District o f Columbia, 448 A.2d 261, 267 n.10 (D .C.), cert, denied, 459 U.S. 1087 (1982), stated, “ this part o f the Home Rule A ct serves to add some federal bureaucracy to the existing D.C. bureaucracy in order to ensure adequate services, not to authorize the provision o f services by the D istrict." 8 Even if a court were to find that the Secretary’s action constituted a “ rule” under §551(4), the Secretary could invoke the “ good cause” exception provided under 5 U.S.C. § 553(b)(3)(B). Under that section, the requirements 118 Authority o f the Secretary o f the'Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House Moreover, even if the Secretary’s contemplated action did constitute a “ rule” under the APA, the APA provides an exception to its requirements for “ [any] matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a)(2) (emphasis added). The “ public property” exception has been interpreted to exempt from APA coverage rules issued by any agency with respect to real or personal property owned by the United States or by any agency of the United States, including rules relating to the sale or management of such property. Story v. Marsh, 732 F.2d 1375, 1384 (8th Cir. 1984); Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979), cert, denied, 446 U.S. 982 (1980); City of Santa Clara v. Andrus, 572 F.2d 660, 673-74 (9th Cir.),' cert, denied, 439 U.S. 859 (1978). See also United States Dept, of Justice, Attorney General’s Manual on the Administrative Procedure Act 27 (1947). Accordingly, if the streets sought to be closed to vehic­ ular traffic are owned by the federal government, we believe that any action taken to close those streets would be exempt from the APA under § 553(a)(2). 3. National Historic Preservation Act We do not believe that the National Historic Preservation Act (“ NHPA” ), 16 U.S.C. §§470 to 470w-6, and the regulations promulgated pursuant to it, 36 C.F.R. §§800.1-15 (1995), prohibit the Secretary from taking prompt action with respect to closing to vehicular traffic the contemplated streets. Section 106 of the NHPA provides that “ prior to the approval of the expenditure of any Federal funds” on an “ undertaking,” the head of a federal agency must “ take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. §470f. It further provides that the agency head shall afford the Advisory Council on Historic Preservation (“ Advisory Council” ) a “ reasonable oppor­ tunity” to comment on the effect that such undertaking will have on a historic site. Id. Although consultation with the Advisory Council must be had “ prior to approval of [the] undertaking,” 36 C.F.R. § 800.1(a), the agency head is not bound by the Advisory Council’s comments or recommendations. See id. 36 C.F.R. §800.6. The vast majority of the areas that the Secretary contemplates closing, including Pennsylvania Avenue between 17th Street and Madison Avenue, and State Place, appear to be part of the “ Lafayette Square Historic District,” which is included in the National Register of Historic Places and is therefore one of the sites covered by section 106. National Register of Historic Places Inventory: Nomination Form for Lafayette Square Historic District. o f notice and opportunity for comment do not apply when the agency for good cause finds that the procedures are “ impracticable, unnecessary, or contrary to the public interest." Id. We believe that in the instant case the Secretary's basis for invoking the good cause exception would be upheld, as there is a clear public interest in pro* viding the President thorough and prompt protection when necessary to meet security requirements. 119 Opinions o f the Office o f Legal Counsel in Volume 19 Whether the NHPA’s consultation process for certain historic sites (section 106 process), 36 C.F.R. §§800.3-.5, is triggered depends on whether the agency’s action is an “ undertaking” under the NHPA. By regulation, the Advisory Council has defined the term “ undertaking” as “ any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects.” Id. §800.2(o) (emphasis added).9 Courts have tended to construe the definition broadly. Historic Green Springs, Inc. v. Bergland, 497 F. Supp. 839, 853 (E.D. Va. 1980); National Indian Youth Council v. Andrus, 501 F. Supp. 649, 676 (D.N.M. 1980), a ff d. sub nom. National Indian Youth Council v. Watt, 664 F.2d 220 (10th Cir. 1981). And we cannot deny that the Secretary’s contemplated action appears to fit within the definition in § 800.2(o) in that the street closing would make a direct change in the use of the historic area because it will prohibit a significant use currently allowed, that is, vehicular traffic. Even if the contemplated street closing were considered an “ undertaking” pursuant to 16 U.S.C. §470f, however, it is our conclusion that the consultation requirements of the Advisory Council’s regulatory scheme do not prohibit the Sec­ retary from taking the necessary and immediate action to protect the President of closing to vehicular traffic the aforementioned streets. The statutory and regu­ latory framework of the NHPA cannot reasonably be read to require strict compli­ ance with the consultation requirements in the case of an emergency. For example, if a water main breaks in an urban historic area, maintenance crews must be able to promptly remedy the situation even if that entails physical destruction of roads and sidewalks in the historic area and closure to all traffic for an extended period of time; surely Congress would not expect consultation before the maintenance work commenced. Similarly, if a crime is committed in an historic area or in an historic building, law enforcement officials would be able to secure the area if necessary to apprehend the perpetrators, preserve evidence, and take necessary and reasonable steps to ensure the safety of members of the public, even if such measures change the use of the historic site by re-routing traffic, setting up road­ blocks, or denying access to buildings and areas. Again, those law enforcement actions could be handled promptly without compliance with the NHPA consulta­ tion requirements. We do not construe the section 106 process to preclude the Secretary, after having “ tak[en] into account the effect of the undertaking,” from authorizing the undertaking to go forward initially on a provisional basis, with no irreversible effects, and thereafter giving the Advisory Council a reasonable opportunity to comment on it before deciding to put the undertaking on a final and permanent footing. In other words, as we construe the statute and regulation, the “ under­ 9 In addition, “ [t]he project, activity, o r program must be under the direct or indirect jurisdiction of a Federal agency or licensed o r assisted by a Federal agency. U ndenakings include new and continuing projects, activities, or programs and any o f their elements not previously considered under section 106.” 36 C.F.R. §800.2(o). 120 Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along the Perimeter o f the White House taking” that requires prior consultation with the Advisory Council must be one that would effect a permanent change in the character and use of the site. Common sense dictates that the NHPA could not require the Secretary to comply with the consultation and review procedures of the section 106 process in a manner which would compromise the Service’s ability and mission to ensure the safety of the President and others in the White House complex. A contrary result would render the Service’s broad authority under 18 U.S.C. §3056 ineffec­ tive; it cannot be that Congress intended that the NHPA could mandate adherence to its procedural requirements when such adherence would directly interfere with the Secret Service’s statutory duty to protect the President of the United States. We believe that if the Secretary, as the exigencies permit, provides the Advisory Council with notice of the Service’s protective actions and requests the Advisory Council’s comments on the actions, the Secretary will be deemed to have complied with the NHPA’s requirement that the agency head afford the Advisory Council a “ reasonable opportunity” to comment. Of course, whether any given oppor­ tunity is reasonable depends on the particular circumstances at issue. 4. National Environmental Policy Act You have also expressed concern about the possible impact of the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), as amended (codified at 42 U.S.C. §§4321-4370) (“ NEPA” ), and its related regula­ tions concerning federal agency action, on the Secretary’s ability to immediately close the identified streets. Without expressing a view as to whether or to what extent NEPA might apply to the street closings, we note that NEPA’s emergency exception is broad enough to permit the Secretary to proceed after brief consulta­ tion with the Council on Environmental Quality. Section 1506.11 of title 40, Code of Federal Regulations, provides: Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the [NEPA regulations,] . . . the Federal agency taking the action should consult with the [Council on Environmental Quality] about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review. We believe that the necessity revealed by the White House Security Review of enhancing the security perimeter around the White House is an “ emergency” within the meaning of this regulation. Accordingly, we believe that the Secretary may close the designated streets without running afoul of NEPA. If possible, the Secretary should consult with the Council on Environmental Quality concerning alternative arrangements prior to closing the streets at issue. 121 Opinions o f the Office o f Legal Counsel in Volume 19 III. Conclusion For the foregoing reasons, we conclude that the Secretary has authority under §3056 to close the streets mentioned above to vehicular traffic. In addition, we conclude that the other congressional grants of authority discussed above do not diminish that authority. RICHARD SHIFFRIN TERESA WYNN ROSEBOROUGH Deputy Assistant Attorneys General Office o f Legal Counsel 122

Write a legal research memo on the following topic.

Authority of the Customs Service to Seize or Forfeit Property Pursuant to 21 U.S.C. § 881 The Customs Service does not have independent authority to make seizures or forfeitures pursuant to 21 U.S.C. § 881. Accordingly, the Customs Service should seize or forfeit property pursuant to that section only under the supervision of the Drug Enforcement Administration and by direct or derivative designation of the Attorney General. The proceeds of property forfeited after a seizure by the Customs Service must be deposited in the Customs Forfeiture Fund, rather than in the Department of Justice Assets Forfeiture Fund, when the seizure was made under a law administered or enforced by Customs, or custody was main­ tained by Customs, regardless of whether the forfeiture was handled by Justice. November 23, 1988 M em o r a n d u m O pin io n fo r th e A sso c ia t e A tt o r n e y G en era l Introduction This memorandum responds to your request that this Office consider (1) whether the United States Customs Service has independent authority to seize and forfeit property pursuant to 21 U.S.C. § 881; and (2) whether property for­ feited under 21 U.S.C. § 881 may be deposited into the Customs Forfeiture Fund maintained under the authority of 19 U.S.C. § 1613b. These questions were first posed by the Administrator, Drug Enforcement Administration (“DEA”),1 and have been the subject of memoranda from the DEA, the United States Customs Service (“Customs” or “Customs Service”) and the Department of Treasury to this Office over the past year.2 In addition, these questions have caused dis­ agreement between field offices of DEA and Customs during the past several months, and the United States Attorneys in several districts have been called upon to mediate the disputes. Section 881 of the Controlled Substances Act generally provides statutory au­ thority to seize and forfeit the proceeds of drug transactions and the property used 1 Memorandum for the Assistant Attorney General, Office of Legal Counsel, from John C. Lawn, Administra­ tor, DEA, Re: U S Customs Authority in Matters Relating to 21 U S C. § 881 (Nov 3, 1986). 2 See, e.g.. Memorandum for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Den­ nis F Hoffman, Chief Counsel, DEA, Re U.S. Customs Authority in Matters Relating to 21 U S C § 881 (June 2, 1987) (“Hoffman Memo”); Memorandum for Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, from Michael H. Lane, Acting Commissioner of Customs, R e ' Customs Seizures under 21 U S C § 881 (Apr. 5, 1988) (“Lane Memo”); Memorandum for Douglas W. Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, from Selig S. Merber, Assistant General Counsel, Department of the Treasury, Re. U S. Customs Service Use o f 21 U.S.C. § 881 (June 6, 1988). 267 to facilitate such transactions. Although this Office has indicated in prior opin­ ions that Customs does not have independent title 21 seizure authority,3 and we have no basis to disturb that opinion, we have never specifically addressed whether Customs has independent forfeiture authority under 21 U.S.C. § 881 or the extent to which property forfeited under section 881 may be deposited in the Customs Forfeiture Fund (“Customs Fund”). The DEA contends that Customs has no independent forfeiture authority under section 881 because Congress has designated the Department of Justice as the authority responsible for enforcing the federal drug laws and because section 881 specifically confers forfeiture au­ thority only upon the Attorney General. The DEA further contends that property forfeited under section 881 may not be deposited into the Customs Fund because Customs is not the proper authority to perform seizures under these drug laws. In contrast, Customs and the Department of Treasury maintain that section 881 provides Customs with independent forfeiture authority and that any property seized by Customs must be deposited into the Customs Fund. For the reasons set forth below, we conclude that Customs does not have in­ dependent forfeiture authority under section 881. In 1973, Reorganization Plan No. 2 transferred drug enforcement authority to the Department of Justice. While Customs’ limited independent authority to seize drugs under laws other than ti­ tle 21 is acknowledged by this Plan, Customs is required to turn over to the De­ partment of Justice all drugs and related evidence. Customs agents can only seize and forfeit property pursuant to section 881 when they assist the DEA under des­ ignation by the Attorney General. As we discuss below, the 1984 and 1988 amend­ ments to section 881 confirm our conclusion that the Attorney General is solely responsible for seizing, forfeiting and, in the first instance, disposing of property forfeited under that statute. The second issue, pertaining to the Customs Forfeiture Fund, poses a closer question. For the reasons set forth below, however, we conclude that under 28 U.S.C. § 524(c)(l 0) the proceeds of property forfeited after a seizure by Customs must be deposited in the Customs Fund when the seizure was made by Customs under a law administered or enforced by Customs, or custody was maintained by Customs, regardless of whether the forfeiture was handled by the Department of Justice under section 881.4 3 See, e g . Memorandum for the Attorney General, from Theodore Olson, Assistant Attorney General, Office of Legal Counsel, Re Request by the Department o f Justice for Assistance from the Department of Treasury in the Enfot cement of the Controlled Substances Act, 21 V S C § 801 et seq , and the Controlled Substances Import and Export Act, 21 U S.C § 951 et seq (Dec. 23, 1983) (“Olson Memo”) (courts would probably uphold a grant of lim­ ited title 21 authority granted to Customs officials acting under the supervision of DEA personnel); Memorandum for the Deputy Attorney General from Douglas W Kmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re. United States Customs Service Jurisdiction over Title 21 Drug Offenses (June 3, 1986) (“Kmiec M emo”) (19 U.S C. §§ 1589 and 1589a provide warrant and arrest authonty to Customs, but do not alter its drugrelated authority under Reorganization Plan N o. 2 of 1973). 4 As this opinion was being finalized, the President signed into law the Anti-Drug Abuse Act of 1988, Pub L No. 100-690, 102 Stat 4181 (1988) (“ 1988 Drug Act”) We have reviewed the new law’s provisions, and incor­ porated them into our analysis. Two provisions contained in the 1988 Drug Act are worthy of additional comment here Section 6078 of ti­ tle VI provides for an addition to the end of part E of the Controlled Substances Act, 21 U.S.C. §§ 871-887, as fol­ lows: 268 Discussion I. Forfeiture Authority Pursuant to 21 U.S.C. § 881 A. Statutory Language Section 881 provides the Attorney General broad authority both to seize and to forfeit specified controlled substances as well as certain property connected with the manufacture, distribution or sale of those substances,5 and further pro­ vides for the disposition of the forfeited property.6 In addition, section 881 grants the Attorney General the authority to use the proceeds from the sale of forfeited property to pay many of the expenses pertaining to the seizure, maintenance, and sale of the property. Property may be forfeited pursuant to 21 U.S.C. § 881 through two separate processes. Under some circumstances, property may be forfeited administra­ 4 ( . . . continued) The Attorney General and the Secretary o f the Treasury shall take such action as may be necessary to develop and maintain a joint plan to coordinate and consolidate post-seizure administration of prop­ erly seized under this title, title III, or provisions of the customs laws relating to controlled substances. Similarly, section 6079 of title VI of the 1988 Dnig Act provides that the Attorney General and the Secretary o f the Treasury are to consult and prescribe regulations for expedited administrative procedures for certain seizures un­ der several acts, including both the Controlled Substances Act and the Tanff Act of 1930 We believe that neither of these provisions constitutes a grant of additional seizure or forfeiture authority to Customs. It is significant in this regard that both provisions are procedural, and both specifically refer to the cus­ toms laws. The plain language o f these provisions indicates that Congress has acknowledged here, as it has else­ where, that Customs agents, acting under the customs laws, have some seizure authonty in drug cases. Nothing in the provisions suggests that Congress meant to grant Customs seizure authonty under section 881 We note that the complete legislative history of the 1988 Drug Act is not yet available for our review from the Department of Jus­ tice’s Office of Legislative Affairs; we note further, however, that legislative history cannot be used to subvert the plain meaning o f the statutory text. 5 Section 881 (a)( 1) through (5) provides for the forfeiture of controlled substances, material and equipment, con­ tainers, conveyances, and records involved in drug trafficking. Section 881(a)(6) provides for the forfeiture o f all assets— including moneys, negotiable instruments and securities— furnished or intended to be furnished in exchange for illegal drugs or traceable to such an exchange, as well as all such assets used or intended to be used to facilitate any drug violations. Section 881(a)(7) and (8), added as part of the Comprehensive Cnme Control Act of 1984, Pub. L. No. 98-473, tit. II, §§ 201-2304,98 Stat. 1976-2193 (1984), grants authority to seize and forfeit real prop­ erty used or intended to be used in a drug felony, and controlled substances possessed in violation of the Act. Sec­ tion 8 8 1(a)(7) was further amended by the 1988 Drug Act to make clear that that section included leasehold inter­ ests. Secuon 881(a)(9), added as part of the 1988 Drug Act, grants authority to seize and forfeit certain chemicals, drug manufacturing equipment, and related items which have been or are intended to be imported, exported, m an­ ufactured, possessed or distributed in violation of specified felony provisions. 6 Section 881 (e)(1), as amended by the 1988 Drug Act, grants the Attorney General authonty to retain the seized and forfeited property for official use, transfer the property pursuant to section 616 of the Tariff Act of 1930 to any federal agency, or to any state or local agency that participated directly in the seizure or forfeiture; sell the prop­ erty; require the General Services Administration to handle the disposal; forward it to the DEA for disposition; or in certain circumstances, transfer the property or proceeds to foreign countries that participated in the seizure or forfeiture. Section 881(e)(2)(A) sets forth the permissible uses of proceeds from the sale of forfeited property, in­ cluding certain property management and sale expenses and payments to informants Section 881(h) codifies the “relation back” doctrine, which holds that the government’s interest in the seized property vests in the United States at the time o f the act giving nse to the forfeiture under section 881. Secuon 88l(i) provides for a stay of civil for­ feiture proceedings when the government has filed a criminal action relating to the civil case. 269 tively, that is, forfeited without judicial action.7 A judicial forfeiture proceeding may also be filed under section 881 by the United States Attorney in federal dis­ trict court.8 We are advised informally by Customs that they may currently seek to rely on section 881 for forfeiture authority in a variety of situations. For example, Cus­ toms might stop and search a vessel pursuant to the customs laws,9 find illegal drugs, and prepare an administrative forfeiture action pursuant to 21 U.S.C. §881, even though in this circumstance, Customs has forfeiture authority not de­ pendent on section 881.10 In other cases, however, Customs may not have alter­ native forfeiture authority. For example, this situation may arise when Customs agents are conducting a search while investigating a suspected violation of a law enforced by Customs, such as the Currency and Foreign Transactions Reporting Act, 31 U.S.C. §§5311-5326, and agents discover cash that is evidence of a fed­ eral drug law violation. If no currency violations are found and the drug viola­ tion is the only viable case, Customs may desire to handle the forfeiture action administratively within Customs or, if the cash amount is over $100,000 or a claim and cost bond is filed, refer the action to the United States Attorney. In ei­ ther case, the forfeiture is sought pursuant to section 881, the only forfeiture statute available under the facts of the case. Finally, contrary to our conclusion that Customs lacks title 21 enforcement authority, Customs agents in some fed­ eral districts may seek to conduct title 21 drug investigations without DEA des­ ignation, and forfeit property solely on the basis of their asserted authority under section 881." In determining whether Customs has the independent forfeiture authority un­ der 21 U.S.C. § 881 that it would need to have in the above and analogous ex­ 7 Section 881 (d) adopts by incorporation the procedures established under the customs laws; these procedures authorize the administrative forfeiture of property that does not exceed $100,000 in value, conveyances that are used to transport controlled substances, and illegally imported goods. 19 U.S.C. § 1607. However, anyone who files a timely claim and posts a cost bond in an administrative forfeiture proceeding can move the action mto federal dis­ trict court. 19 U S.C. § 1608. 8 A civil judicial forfeiture proceeding is required where the value of the property exceeds $100,000 and the property is not a conveyance or an illegally imported item, 19 U.S.C. § 1610; where the defendant has filed a claim and cost bond in an administrative forfeiture proceeding, 19 U.S.C. § 1608; or if the United States Attorney decides that the property should not be seized until a warrant of arrest in rem is issued pursuant to the filing of a formal complaint. 9 Pursuant to 19 U.S.C. § 1581(a), Customs officers may, at any time, board any conveyance (e.g., a vessel or vehicle) within a customs-enforcement area and examine the manifest and other documents, as well as inspect and search every part of that conveyance. If, upon examination of the conveyance it appears to the Customs officers that a violation of federal laws is being or has been committed so as to render the conveyance or anything aboard it liable to forfeiture, the officers may, pursuant to 19 U.S.C. § 1581(e), seize the conveyance. 10 Under 19 U.S.C. § 1595a(a), Customs is authorized to seize and forfeit any vessel, vehicle, animal, aircraft, or other thing used to facilitate the importation into the United States of any article contrary to law Because the importation o f illegal drugs into the United States is contrary to law, a boat used to smuggle drugs into the United States may be seized by Customs under section 1595a(a). 11 We are also apprised that, on occasion. Custom s will “adopt” cases investigated and prepared by state or lo­ cal law enforcement officers, forfeit the seized property administratively under section 881, and then transfer a por­ tion of the proceeds to the state or local law enforcement authorities who made the seizure in accordance with 19 U.S C. § 1616a(c). 270 amples, we begin by examining the plain language of that statute.12 The text of section 881 reveals that Congress intended the Attorney General, and not Cus­ toms, to handle the drug forfeiture functions outlined in that section. For ex­ ample, section 881 (b), which authorizes seizure of property subject to forfei­ ture under the Controlled Substances Act, specifically mentions only the Attorney General, not the Customs Service or any other federal agency. Simi­ larly, section 881(c), providing for the custody of seized property, grants such authority only to the Attorney General. Moreover, section 881(e), authorizing the disposition of property seized under the Controlled Substances Act, grants this power specifically and solely to the Attorney General. The exclusive for­ feiture role of the Attorney General under section 881 was reemphasized when, in 1984, Congress amended section 881, but continued to place all seizure and forfeiture responsibility under the Controlled Substances Act solely with the At­ torney General. For example, Congress amended section 881(e)(1) to provide the Attorney General authority to transfer the custody or ownership of any for­ feited property to any federal agency or to any state or local agency that directly participated in the seizure or forfeiture, yet continued to recognize that the At­ torney General is in exclusive control of the forfeiture and disposition of for­ feited property under the Controlled Substances Act. Similarly, amendments to section 881 contained in the 1988 Drug Act preserve the Attorney General’s exclusive forfeiture authority.13 Congress’ intent that the Attorney General hold exclusive authority to seize and forfeit property under section 881 is also evident in the broader statutory scheme of the Controlled Substances Act. No other section of the Act grants au­ thority to the Customs Service to seize and forfeit property under the Act.14 In­ deed, section 878(a)(4) affirmatively grants authority to “make seizures of prop­ erty pursuant to the [Controlled Substances Act]” only to officers and employees of the DEA or any state or local law enforcement officer designated by the At­ torney General to make such seizures. Congress amended section 878 in 1986,15 yet did not include Customs in this specific, affirmative grant of authority. Sim­ 12 The first rule of statutory construction is to examine the language of the statute itself. See, e.g , Touche Ross & Co v.Redington,442U.S.56Qt 56&(\979)',GreyhoundCorp. v.Mt. Hood Stages, Inc.,431V S 322,330(1978). 13 We note that section 881(1), added as part of the 1988 Drug Act, authorizes the Attorney General to delegate certain of his section 881 functions, by agreement, to the Postal Service. The 1988 Drug Act also amended 18 Lf.S.C. § 3061 to grant the Postal Service seizure authority with respect to postal offenses, and '"to the extent authorized by the Attorney General pursuant to agreement between the Attorney General and the Postal Service, in the en­ forcement of other laws o f the United States, if the Attorney General determines that violations of such laws have a detrimental effect upon the operations of the Postal Service.” Section 881 (e)(2)(B), as amended by the 1988 Drug Act, provides that the proceeds of forfeitures conducted by the Postal Service shall be deposited in the Postal Ser­ vice Fund. 14 Part E, entitled “Administrative and Enforcement Provisions,” contains several secuons, none of which refers to anyone other than the Attorney Genera] with respect to enforcement authority under the Controlled Substances Act. For example, section 871 empowers the Attorney General to delegate any of his functions under the Act to any officer or employee of the Department of Justice, and to promulgate and enforce any rules, regulations and proce­ dures which he deems necessary for efficient execuuon of his functions under the Act. 21 U.S.C. § 87 l(a)-(b). Sec­ tion 875 authorizes the Attorney General to hold hearings, sign and issue subpoenas, administer oaths, examine witnesses and receive evidence anywhere in the United States in carrying out his functions under the Act. 15 21 U.S.C § 878 was amended in 1986 by Pub. L. No. 99-570. 271 ilarly, 21 U.S.C. § 873(b) vests only in the Attorney General the authority to re­ quest assistance from other federal agencies to carry out his functions under the Controlled Substances Act.16 The only part of section 881 that makes any reference to the Customs Service is section 881(d), which sets forth “other laws and proceedings applicable” to civil forfeiture proceedings under the Controlled Substances Act. Customs relies on that section to argue that it has section 881 forfeiture authority.17 The argu­ ment is unavailing. Section 881(d) merely provides that the forfeiture procedures of the customs laws are applicable to forfeitures conducted under section 881; it does not confer on Customs itself any forfeiture authority. The statute reads as follows: The provisions of law relating to the seizure, summary and ju­ dicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfei­ tures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with re­ spect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer. 21 U.S.C. § 881(d) (emphasis added). Contrary to Customs’ position, section 881(d) is correctly read to be a proce­ dural provision, and not an affirmative grant of authority. The first half of the section, which ends with the phrase “insofar as applicable and not inconsistent with the provisions hereof,” mandates that the procedures governing the seizure and forfeiture of property under the customs laws shall also govern, to the extent not inconsistent, seizures and forfeitures arising under the Controlled Substances Act. Thus, section 881(d) explicitly incorporates by reference a statutory proce­ dural scheme already in existence.18 The second half of the section, up until the final phrase, states that the procedural duties connected with seizures and forfei­ tures under the Controlled Substances Act shall be handled by officers, agents, 16 In the Olson M emo, we concluded that the Attorney General could likely designate Customs agents to exer­ cise title 21 authonty by virtue of this provision. 17 See Lane Memo, supra note 2, at 3 18 These procedural provisions are codified at 19 U.S.C. §§ 1602-1621. 272 or other persons authorized or designated by the Attorney General. The final phrase of section 881(d) merely qualifies that procedural mandate by providing that the incorporated Customs procedures shall be followed by the Attorney Gen­ eral’s agents or designee with respect to seizures and forfeitures under the Con­ trolled Substances Act except to the extent that such duties arise from seizures and forfeitures effected by any Customs officer, acting as a Customs officer, rather than as a designee of the Attorney General.19 Our interpretation of the exception clause in section 881(d) as a procedural provision is supported by the fact, discussed above, that the Controlled Substances Act as a whole places all enforcement authority under the Act’s provisions with the Attorney General. Any limit to this broad and exclusive mandate would be a significant departure from the overall enforcement scheme. We therefore find the proposition that Congress would place within a clearly procedural section a sub­ stantive provision so significantly at odds with the Attorney General’s title 21 authority to be untenable. This interpretation is consistent with the realignment of drug enforcement and seizure authority which took place proximate to the enactment of the Controlled Substances Act (including section 881) in 1970. Prior to 1968, the Department of Treasury was the agency charged with primary responsibility for enforcing the federal drug laws. Within the Department of Treasury, the United States Cus­ toms Service had the responsibility for enforcing all laws pertaining to the smug­ gling of drugs into the United States, while Treasury’s Bureau of Narcotics was charged with enforcing all laws relating to drug trafficking. Reorganization Plan No. 1 of 1968, 3 C.F.R. 1061 (1966-1970), reprinted as amended in 5 U.S.C. app. at 1334, and in 82 Stat. 1367 (1968), transferred the drug trafficking en­ forcement functions of the Department of Treasury’s Bureau of Narcotics to the Attorney General, to be handled within the Department of Justice by a newly cre­ ated Bureau of Narcotics and Dangerous Drugs. The responsibility for investi­ gating smuggling, on the other hand, remained with Customs within the Trea­ sury Department, thereby raising the possibility of jurisdictional disputes regarding the respective responsibilities of the Justice and Treasury Departments in the context of certain drug investigations. Because the Customs Service re­ tained investigative jurisdiction to enforce the federal smuggling laws, it would have been entirely reasonable for Congress to include in the forfeiture provision of the Controlled Substances Act a proviso like that in the final clause of section 881(d), recognizing that the Attorney General’s new, vast and exclusive seizure 19 As already indicated in the text, Customs has no independent title 21 seizure or forfeiture authonty. There­ fore, for a seizure or forfeiture to be effected as suggested by the final clause, it must be pursuant to a source of Customs authority other than the Controlled Substances Act Nevertheless, it was important for Congress to include the final clause in section 881 (d) to distinguish the situation where Customs acts on its own authonty under the cus­ toms laws from the situation where Customs is designated by the Attorney General to seize and forfeit under the Controlled Substances Act. In the latter event, Customs—as an agent of the Attorney General— must follow the duties being incorporated in section 881(d) so long as not inconsistent with the Act, not the potentially inconsistent duties that the Act contemplates may separately be imposed on Customs by the customs laws. 273 and forfeiture authority under title 21 did not preclude Customs from pursuing seizures and forfeitures under the customs laws. B. Reorganization Plan No. 2 o f 1973 Customs also relies on Reorganization Plan No. 2 of 197320 as a basis for its claim to independent forfeiture authority under 21 U.S.C. § 881. That Plan trans­ ferred “all intelligence, investigative, and law enforcement functions” pertaining to “the suppression of illicit traffic in narcotics, dangerous drugs, or marihuana” from Customs to DEA.21 The Plan also contained a clause (the “retention clause”) which provided in part that “[t]he Secretary [of the Treasury] shall retain, and continue to perform [drug intelligence, investigative and enforcement] functions, to the extent that they relate to searches and seizures of illicit narcotics, danger­ ous drugs, or marihuana or to the apprehension or detention of persons in con­ nection therewith, at regular inspection locations at ports of entry or anywhere along the land or water borders of the United States.”22 Customs contends that it is clear from the language in that clause that Customs officers were intended to enforce all federal drug laws, including section 881, in the border context.23 The proviso immediately following the retention clause, however, states that any drugs or drug-related evidence seized by Customs at those points “shall be turned over forthwith to the jurisdiction of the Attorney General.” Read in conjunction with one another, the retention clause and the proviso that follows it appear to recognize that Customs may legally seize drugs in the context of its role of en­ forcing the customs laws in the border context, but that any drugs or drug traf­ ficking evidence Customs seizes must be turned over to the Attorney General for appropriate processing. Thus, under the 1973 Reorganization Plan, Customs re­ tained only whatever seizure authority it had under laws other than title 21 with respect to drugs, and the Attorney General maintained control over the forfeiture of drug-related property and the disposition of that forfeited property. In addition, in light of the fact that the 1973 Reorganization Plan was intended to consolidate federal drug law enforcement responsibility under a single agency within the Department of Justice, the DEA,24 the most reasonable interpretation of the retention clause is that the words merely make clear that the transfer of drug enforcement functions does not disrupt Customs’ authority to make seizures of drugs discovered in the course of Customs’ enforcement of the smuggling laws.25 20 3 C.F.R. 1158 (1971-1975), reprinted as amended in 5 U.S.C. app at 1355, and in 87 Stat. 1091 (1973). 21id. 22Id. 23 Lane Memo, supra note 2, at 4 24 See, e g., 5 U.S.C. app. at 1357 (Message o f the President, transmitting Reorganization Plan No. 2 of 1973 to the Congress, in which the President noted that the newly created DEA would carry out “[tjhose functions of the Bureau of Customs pertaining to drug investigations and intelligence.”). 25 For example, as mentioned earlier, under 19 U S.C. § 1595a, Customs is authorized to seize and forfeit any vessel, vehicle, animal, aircraft, or other thing used to facilitate the importation into the United States of any arti­ cle contrary to law. Because the importation of illegal drugs into the United States is contrary to law, a boat used 274 For the foregoing reasons, we find Customs’ reliance on Reorganization Plan No. 2 of 1973 as a basis for its claim to independent forfeiture authority under 21 U.S.C. § 881 to be without merit. As we have held in the past, under the 1973 Reorganization Plan “Customs officials have authority [under customs laws and under title 21 when so designated by the Attorney General] only to search for and seize drugs at the borders and ports,” and “[s]uspects and drug contraband are to be immediately turned over to DEA for investigation and prosecution.”26 We reached a similar conclusion in our memorandum of June 11, 1985, stating the view that Customs personnel must work under the supervision of the DEA and “may undertake drug enforcement investigations beyond the interdiction of drugs at the border, but only with the specific approval of, and under the supervision of, [the Department of Justice].”27 We find no case law or subsequent executive or legislative action that would change these conclusions. C. Other Arguments Raised by the Customs Service Although we find, based on the language of the statute and Reorganization Plan No. 2 of 1973, that Customs does not have independent forfeiture authority under section 881, we briefly address below additional arguments raised by Cus­ toms in support of its assertion of section 881 authority. 1.19 U.S.C. § 1589a As evidence that it has section 881 authority in the border context, Customs cites 19 U.S.C. § 1589a(2), which permits a Customs officer to execute and serve “any order, warrant, subpoena, summons, or other process issued under the au­ thority of the United States,” and section 1589a(3), which generally provides that a Customs officer may make a warrantless arrest for any federal offense com­ mitted in his presence or any federal felony “committed outside the officer’s pres­ ence if the officer has reasonable grounds to believe that the person to be arrested has committed or is committing a felony.” In our June 3, 1986 opinion,28 we specifically examined the question whether passage of section 1589a, and the nearly identical 19 U.S.C. § 1589,29 altered the conclusions of this Office in the 25 ( .. continued) to smuggle drugs into the United States may be seized lawfully by Customs under section 1595a. We believe that the retention clause in Reorganization Plan No. 2 of 1973 was intended to cover Customs seizures made pursuant to laws such as section 1595a This interpretation is consistent with our reading of the final clause in section 881 (d) which, as we concluded above, was Congress’ acknowledgement that, while the Attorney Genera] has exclusive enforcement authority over federal drug violations even at the border, Customs retains its authority over enforce­ ment of the customs laws 26 Olson Memo, supra note 3, at 3. We confirmed this interpretation of the 1973 Reorganization Plan in our memorandum of June 3, 1986 See Kmiec Memo, supra note 3, at 7-9 27 Memorandum for Joseph R Davis, Chief Counsel, DEA, from Ralph Tarr, Acting Assistant Attorney Gen­ eral, Office of Legal Counsel, Re. Authority o f the United States Customs Service to Participate in Law Enforce­ ment Efforts Against Drug Violators (June 11, 1985) 28 Kmiec Memo, supra note 3. 29 In October 1984, Congress passed the Comprehensive Cnm e Control Act of 1984, Pub. L No. 98-473, 98 Stat 2056 (1984), and the Tariff and Trade Act, Pub L. No. 98-573,98 Stat 2988 (1984), which contain two pro­ visions identical for all practical purposes and codified at 19 U S.C. §§ 1589a and 1589, respectively 275 Olson Memo that Customs does not have independent enforcement authority over title 21 drug offenses. We concluded that (1) the legislative histories behind sec­ tions 1589 and 1589a clearly state that the sections were not intended to change Customs jurisdiction over drug offenses or to alter the basic relationship between Customs and DEA established by Reorganization Plan No. 2 of 1973;30 (2) Con­ gress’ intent in passing the sections was to clarify Customs authority in the face of case law questioning the validity of warrants pursued and arrests made by Cus­ toms officers in drug cases in which Customs officers act under the supervision of DEA;31 and (3) while sections 1589 and 1589a acknowledge the authority of Customs officers to execute and serve warrants, and to make arrests, for a wide range of federal crimes, the provisions do not grant Customs additional author­ ity to pursue and prosecute such offenses.32 We have reexamined the Kmiec Memo in light of Customs’ most recent memorandum and reaffirm our conclu­ sions as outlined above. Accordingly, we find that sections 1589 and 1589a do not provide Customs with substantive authority to make seizures and forfeitures pursuant to 21 U.S.C. § 881. 2. Common Law Seizure Authority Customs also argues that Customs officers can make seizures and forfeitures outside of the border context under common law authority, stating that it is a “well settled principle of common law that anyone may seize property for for­ feiture to the Government and the seizure is valid if the Government adopts the act and proceeds to enforce the forfeiture,” and therefore that there is “no reason why a Customs officer should be disabled from making seizures under 21 U.S.C. §881 when even a private person could perform such seizures.”33 We address later in this opinion Customs’ argument that their agents have common law au­ thority for making seizures for forfeiture.34 However, assuming arguendo that such authority exists, any common law authority is separate and apart from ex­ press statutory authority under section 881 and therefore provides no additional support to Customs’ position that its agents have independent forfeiture author­ ity under section 881. 30 Kmiec Memo, supra note 3, at 5-8 31 Id at 5-7. In United States v Harrington, 520 F. Supp. 93, 95 (E D Cal. 1981), the court held that Reorga­ nization Plan No. 2 of 1973 deprived Customs agents of any search or arrest authonty with respect to the federal drug laws, and suggested that Customs agents accordingly lacked “secondary authonty” to perform drug enforce­ ment searches under the primary responsibility” o f the DEA Although the district court’s decision ultimately was reversed on appeal, 681 F 2d 612 (9th Cir 1982), cert denied. Ail I U S . 1015 (1983), Congress clearly had the de­ cision in rrnnd when it passed sections 1589 and 1589a The relevant House Report slated. “Enactment of [this pro­ vision] would also make it clear that Customs officers may serve search and arrest warrants for any Federal offense including drug offenses. This would eliminate the problem raised in U S. v. Harrington , which . . questioned Cus­ toms authority to serve search warrants in joint DEA-Customs investigations away from the border.” H R Rep. No. 845, 98th Cong., 2d Sess , pt. 1, at 28 (1984) (citation omitted). 32 See Kmiec Memo, supra note 3, at 2. 33 Lane Memo, supra note 2, at 4-5. 34 See infra pp. 278-80. 276 3 .2 8 U.S.C. § 524(c)(10) Finally, Customs cites 28 U.S.C. § 524(c)( 10) as evidence of Congress’ recog­ nition that Customs has seizure authority under section 881 of title 2 1.35 Section 524, enacted in 1984, established the Department of Justice Assets Forfeiture Fund, which serves as the depository for moneys realized from profitable forfei­ tures of property after the payment of certain expenses of forfeiture and sale.36 Section 524(c)(4) requires “all amounts from the forfeiture of property under any law enforced or administered by the Department of Justice” to be deposited in that fund. Section 524(c)(10) provides: For the purposes of this section, property is forfeited pursuant to a law enforced or administered by the Department of Justice if it is forfeited pursuant to — (A) any criminal forfeiture proceeding; (B) any civil judicial forfeiture proceeding; or (C) any civil administrative forfeiture proceeding conducted by the Department of Justice, except to the extent that the seizure was effected by a Customs of­ ficer or that custody was maintained by the United States Cus­ toms Service in which case the provisions of section 613A of the Tariff Act of 1930 (19 U.S.C. 1613a) shall apply. 28 U.S.C. § 524(c)(10) (emphasis added). The Customs Service apparently interprets the final clause of section 524(c)(10), underscored above, to demonstrate Congress’ understanding that Customs has independent seizure authority under section 881.37 However, noth­ ing on the face of the provision indicates in the least that Customs has section 881 seizure or forfeiture authority. The general reference in the final phrase of section 524(c)(10) does not specify particular Customs seizure or forfeiture au­ thority, and therefore cannot be said to enlarge or affect Customs’ underlying 35 The provision relied upon by Customs, formerly 28 U.S.C. § 524(c)(8), now appears at section 524(c)(10) as a result of amendment by the 1988 Drug Act. 36 The fund may be used to pay expenses incurred by the Department of Justice and assisting federal, state, and local law enforcement agencies for the detention, inventory, safeguarding, maintenance, and disposal of seized and forfeited property. See The Attorney General's Guidelines on Seized and Forfeited Property, as amended, at 17-26 (June 29, 1988) 37 See Lane Memo, supra note 2, at 7. 277 substantive authority in any manner.38 Accordingly, the language of 28 U.S.C. § 524(c)(10) does not support Customs’ position that it has independent section 881 forfeiture authority. D. Summary: Section 881 Seizure and Forfeiture Authority For the reasons set forth above, we conclude that Customs does not have in­ dependent seizure or forfeiture authority under section 881. We base our con­ clusion on the prior opinions of this Office, the language of section 881(d) as viewed by itself and as examined in the context of section 881, the other provi­ sions of the Controlled Substances Act, and Reorganization Plan No. 2 of 1973. After another thorough review of these laws and their legislative histories, we believe that Congress intended the Attorney General to be the sole administrator of section 881 and the other enforcement provisions of the Controlled Substances Act. In addition, nothing supports Customs’ claim of independent forfeiture au­ thority under section 881. This is not to say, of course, that Customs can never make seizures or forfeit property pursuant to section 881. As we concluded in a prior opinion,39 the At­ torney General in all likelihood has the authority under 21 U.S.C. §§ 873(b) and 965 to provide Customs agents with substantive legal authority to assist the DEA in the enforcement of title 21 drug offenses, including the undertaking of law en­ forcement functions that Customs agents are not normally empowered to perform but which DEA agents are authorized to perform in executing the Controlled Sub­ stances Act.40 We must emphasize, however, that absent any such grant of au­ thority from the Attorney General, Customs would be operating without statu­ tory authority to enforce title 21 drug offenses. Moreover, as we have cautioned in the past, DEA would be well-advised to exercise particular caution not to per­ mit Customs officials to undertake independent, unsupervised enforcement re­ sponsibilities where a successful court challenge would seriously jeopardize a prosecution.41 Although our opinion is not intended to have retrospective impact, our con­ clusion that Customs does not have independent authority under 21 U.S.C. § 881 necessarily raises questions about the legality of any seizures and forfeitures al­ ready conducted by Customs under that section without a proper designation from the Attorney General or his designee. A comprehensive analysis of that issue is 38 We discuss the Department of Justice Assets Forfeiture Fund and the Customs Forfeiture Fund in more de­ tail below, when we address the question of which fund should be the depository of proceeds from forfeiture un­ der section 881. 39 Olson Memo, supra note 2, at 5-9. 40 21 U.S.C. § 873(b) provides m pertinent part that “when requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance, including technical advice, to him for canying out his functions under this subchapter ” See also 21 U.S.C. § 965, which adopts the authonty of section 873 by reference. 41 Olson Memo, supra note 2, at 9-10. For example, we noted that the Economy Act, 31 U.S.C. § 1535, might prohibit Customs from exercising law enforcement services for DEA to the extent that Customs agents are not gen­ erally authorized to perform those services under their own substantive authorizing statute. Id. at 8. 278 beyond the scope of this memorandum. For the reasons discussed below, how­ ever, we believe that those seizures and forfeitures may be upheld under a the­ ory of common law seizure authority. The courts have long recognized that the United States may “adopt” seizures that have been made by private parties or other law enforcement agencies.42 The United States Supreme Court articulated this principle in Dodge v. United States ,43 in which it stated that “anyone may seize any property for a forfeiture to the Government, and that if the Government adopts the act and proceeds to en­ force the forfeiture by legal process, this is of no less validity than when the seizure is by authority originally given.”44 The Dodge Court based its holding on the rationale that the owner of the seized property suffers nothing as a result of an unauthorized seizure that he would not have suffered if the seizure had been authorized, as the seizure, however effected, brings the res within the power of the court, “which is an end that the law seeks to attain, and justice to the owner is as safe in the one case as in the other 45 The reasoning of the Dodge Court regarding seizures makes sense given the nature of a forfeiture proceeding. A civil forfeiture action under section 881 is an action in rem, brought against the property itself rather than the wrongdoer, and based on the legal fiction that the property itself is guilty. Just as in the case of a seizure, the forfeiture laws can be said to seek to bring the object within the power of the court. Thus, the Dodge Court’s conclusion that it makes no differ­ ence to the owner who brought his property into the court’s jurisdiction is as ap­ plicable in a forfeiture action as it is in the case of a seizure. The holding in Dodge with respect to adoptive seizures is still followed today, even in cases involving section 881 forfeiture actions.46 We must caution, how­ ever, that our preliminary view that common law authority may be used to jus­ 42 See, e g , United States v. One Ford Coupe Automobile, 272 U.S. 321, 325 (1926); Kieffer v United States, 550 F. Supp. 101, 103 (E.D. Mich. 1982). 43 272 U.S. 530 (1926). Dodge involved a proceeding to forfeit a boat for violation of the National Prohibition Act, the initial seizure of which was made by state officers who were not authorized to make the seizure under the Act. See also United States v One Ford Coupe Automobile, 272 U.S. at 325 (adoption of seizure by United States for forfeiture permissible even when seizing party lacked authonty to make seizure). 44 Dodge v. United States, 272 U.S. at 532. 45 Id 46 See, e g , United States v. One 1977 Mercedes Benz, 708 F.2d 444, 450 (9th Cir. 1983) (in forfeiture action against automobile allegedly used to transport narcotics, jurisdiction of the court was secured by the fact that the res was in the possession of the party authonzed to seize when the action was filed), cert, denied, 464 U.S. 1071 (1984); Kieffer v United States, 550 F. Supp. 101, 103 (E.D Mich. 1982) (upholding section 881 forfeiture action on basis that United States may “adopt” seizure by state officers who do not have seizure authority under section 881). In more recent years, however, courts have increasingly been asked to address the question expressly left open in Dodge: whether the fact that the property was obtained as the result o f a search and seizure deemed unlawful as invading a person’s constitutional rights bars the forfeiture action or deprives the court of jurisdiction to hear it. Al­ though the United States Supreme Court has held that evidence denved from a search which violated the Fourth Amendment is inadmissible in a forfeiture proceeding. One 1958 Plymouth Sedan v Pennsylvania, 380 U.S. 693, 702 ( 1965), the general rule is that improper seizure does not jeopardize the government’s right to secure forfeiture if the probable cause to seize the vehicle can be supported with untainted evidence. See , e g.. United States v United States Currency $31,828, 760 F.2d 228, 230-31 (8th Cir. 1985); United Stales v. "MONKEY", A Fishing Vessel, 725 F.2d 1007, 1012 (5th Cir. 1984); United States v. United States Currency Totaling $87279, 546 F. Supp. 1120, 1126 (S.D. Ga. 1982). 279 tify past seizures and forfeitures should not be read to suggest continued prospec­ tive reliance on that authority by Customs as the basis for future actions under section 881 without appropriate DEA authorization. II. Department of Justice and Customs Forfeiture Funds We turn now to the second issue we have been asked to address: must the pro­ ceeds of forfeitures resulting from lawful Customs Service seizures be deposited in the Customs Forfeiture Fund regardless of the statute under which the prop­ erty was forfeited and regardless of whether the property was forfeited by the De­ partment of Justice? The Department of Justice Assets Forfeiture Fund and the Customs Forfeiture Fund were created to allow those agencies to finance certain aspects of their respective forfeiture actions and other specified law enforcement activities from the proceeds of forfeited assets. See 28 U.S.C. § 524(c)(1) (De­ partment of Justice Assets Forfeiture Fund); 19 U.S.C. § 1613b (Customs For­ feiture Fund). Congress provided that both the Justice and Customs Funds would receive amounts from the forfeiture of property under any law enforced or ad­ ministered by the respective agencies. See 28 U.S.C. § 524(c)(4); 19 U.S.C. § 1613b(a), (c). As we have discussed above,47 28 U.S.C. § 524(c)(10) defines what property is forfeited “pursuant to a law enforced or administered by the Department of Justice” for purposes of determining whether the proceeds from the sale of par­ ticular forfeited property are to be deposited in the Department of Justice Assets Forfeiture Fund. The definition includes any property forfeited under three spec­ ified forfeiture proceedings,48 “ except to the extent that the seizure was effected by a Customs officer or that custody was maintained by the Customs Service in which case the provisions of section 613A o f the Tariff Act of 1930 (19 U.S.C. § 1613a) shall apply ” (emphasis added). The Customs Forfeiture Fund provisions referenced in the clause of section 524(c)(10) underscored above provide in part that the Fund shall be the depository for “all proceeds from forfeiture under any law enforced or administered by the United States Customs Service.”49 Customs takes the position that the language of 28 U.S.C. § 524(c)(10) pro­ vides that the proceeds of forfeiture (even those conducted by the Department of Justice under section 881) arising from any Customs seizure be deposited in the Customs Forfeiture Fund, which is codified at 19 U.S.C. § 1613b.50 DEA dis­ agrees with that interpretation, maintaining that the clause “refers only to nondrug-related seizures and forfeitures lawfully performed by Customs pursuant to [c]ustoms laws”51and that section 881 (e) indicates that the Attorney General can­ 47 See supra pp. 277-78. 48 The three proceedings specified in section 524(c)( 10) are: (1) any criminal forfeiture proceeding; (2) any civil judicial forfeiture proceeding; and (3) any civil administrative forfeiture proceeding conducted by the Department of Justice. 28 U.S.C. § 524(c)(10)(A)-(C) 49 19 U.S C § 1613b(c). See also infra note 53. 50 Lane Memo, supra note 2, at 7 51 Hoffman M emo, supra note 2, at 10 280 not deposit moneys or proceeds from a forfeiture conducted by the Department under section 881 in any fund other than the Department of Justice Assets For­ feiture Fund.52 For the reasons set forth below, we conclude that although the question is not entirely free from doubt, under the most reasonable interpretation of 28 U.S.C. § 524(c)(10), cash or proceeds of property forfeited as a result of a seizure made by the Customs Service pursuant to a law administered or enforced by Customs is to be deposited in the Customs Forfeiture Fund rather than in the Department of Justice Assets Forfeiture Fund, even though the property ulti­ mately was forfeited by the Department of Justice under section 881. Section 524(c)(10), standing alone, is unambiguous: the proceeds from for­ feitures conducted pursuant to laws enforced or administered by the Department of Justice are to be placed in the Department of Justice Assets Forfeiture Fund unless the property was seized or custody maintained by the Customs Service, in which case the proceeds from the forfeiture are to be placed in the Customs For­ feiture Fund. Under section 524(c)(10), it appears that Customs may receive the proceeds from the forfeiture of the property it seizes even if it has no authority to forfeit that property. In addition, the clause applies to any seizure made by Customs, not just to nondrug-related seizures. When, however, section 524(c)(10) is read in conjunction with 19 U.S.C. § 1613b, to which it makes specific reference, the meaning of the exception clause is not entirely clear. Section 1613b(a), establishing the Customs Forfeiture Fund,53 provides, as amended by the 1988 Drug Act, that the Fund “shall be avail­ able to the United States Customs Service, subject to appropriation, with respect to seizures and forfeitures by the United States Customs Service and the United States Coast Guard under any law enforced or administered by those agencies.” Similarly, section 1613b(c) provides for deposit in the fund of “all proceeds from forfeiture under any law enforced or administered by the United States Customs Service or the United States Coast Guard.” We believe that the final clause of 28 U.S.C. § 524(c)(10) clearly governs 52 id 53 As a preliminary matter, we note that the reference to the Customs Forfeiture Fund provisions in the final clause of section 524(c)(10) specifically refers to “the provisions of section 613A of the T anff Act of 1930 (19 U.S.C. § 1613a).” However, 19 U.S.C. § 1613a, which was passed in 1984, Pub L. No. 98-473, 98 Stat. 2054, was repealed in 1986, Pub L. No 99-514, 100 Stat. 2924—25. The fund was recreated in 1987, Pub. L. No. 100-71, tit. 1 ,101 Stat. 438, and presently is codified at 19 U.S.C. § 1613b. Neither section 524(c)(10) nor its predecessor pro­ vision, section 524(c)(8), was ever amended to reflect these changes and, as a result, section 524(c)(10) now refers to a Customs Forfeiture Fund that is no longer m existence Thus, under a literal reading, the exception clause in section 524(c)(10) has no force and does not govern any deposits into the current Customs Forfeiture Fund. Although in such cases no construction can ever be entirely free from doubt, Congress can be presumed not to have intended an absurd result. Rather, it can fairly be concluded that Congress intended to incorporate an ac­ curate reference to the Customs Forfeiture Fund provision in 28 U S.C. § 524(c)(I0). We believe this is true even though Congress’ recreated Customs Forfeiture Fund is not codified at 19 U.S.C. § 1613a, as referenced in section 524(c)(10), but rather appears at section 1613b. See United Steelworkers of Am v. Weber, 443 U.S. 193,201 (1979), (citing Holy Trinity Church v. United States, 143 U.S. 457,459 (1892)). We note further that although the amend­ ments to section 524 contained in the 1988 Drug Act perpetuate the miscitation to the Customs Forfeiture Fund, the 1988 Drug Act, in section 7364, correctly cites 19 U.S.C. § 1613b as the provision that codifies the Customs Forfeiture Fund. 281 those cases in which Customs has explicit forfeiture authority but the Justice Department, by law, must play a role in the forfeiture of property seized by Cus­ toms. For example, the Department of Justice, through the United States At­ torneys, must handle certain civil judicial forfeiture proceedings in federal court of property seized by Customs under the customs laws.54 Thus, there is an over­ lap in the definitions of “those laws enforced or administered” by Customs and “those laws enforced or administered” by the Department of Justice because in certain instances Customs has authority over the seizures and the Department of Justice has authority over the forfeitures. The exception clause in section 524(c)(10) addresses the question of which fund should be used in such situa­ tions by providing that when a Customs officer seizes property or maintains custody of property under the customs laws, the proceeds of that forfeiture should be placed in the Customs Forfeiture Fund, regardless of whether Cus­ toms conducted the forfeiture. The more difficult question is whether the final clause also pertains to cases in which Customs has seized property pursuant to the laws it enforces, but where the property is forfeited by the Department of Justice, either administratively or judicially, under 21 U.S.C. § 881 or another forfeiture statute under which Cus­ toms has no forfeiture authority. As section 1613b(c) refers only to forfeitures under “any law enforced or administered” by Customs, it can be argued that Con­ gress intended that the Customs Forfeiture Fund be the depository only for pro­ ceeds from property that actually was forfeited under the customs laws. In light of our conclusion above that only the Department of Justice has independent statutory authority to seize and forfeit property under 21 U.S.C. § 881, such an interpretation necessarily would require that the proceeds from all section 881 forfeitures be placed in the Department of Justice Assets Forfeiture Fund. How­ ever, we believe that interpretation would be contrary to the language of the ex­ ception clause in section 524(c)(10), since it would prevent Customs from re­ ceiving proceeds from the forfeiture of property that it had seized under the customs laws. Accordingly, we conclude that the proceeds of property seized or held in custody by Customs under the customs laws must be placed in the Cus­ toms Forfeiture Fund even though the property was forfeited by the Department of Justice under 21 U.S.C. § 881. Our interpretation of the exception clause is consistent with Reorganization Plan No. 2 of 1973, which reflects legislative and executive branch recognition of Customs’ traditional law enforcement role at the border. As we have already discussed above, in Reorganization Plan No. 2 of 1973 Congress left undisturbed Customs’ authority under the customs laws to perform all intelligence, inves­ tigative and law enforcement functions to the extent that they relate to searches and seizures of drugs at regular inspection locations at ports of entry or the bor­ 54 Customs must refer civil forfeiture cases to the United States Attorney (1) when the property seized exceeds $100,000 in value and is not an illegally imported item or a conveyance used to transport a controlled substance, or (2) when a claim and cost bond has been filed for the property in an administrative forfeiture proceeding See 19 U .S.C §§ 1607, 1608, 1610. 282 der. Thus, Customs has retained search and seizure authority with respect to il­ legal drugs and related evidence encountered by Customs in the course of its en­ forcement responsibilities under the customs laws. In light of Congress’ intent that Customs maintain those particular aspects of its traditional law enforcement role at the border, it is reasonable to interpret the words “seizure” and “custody” in section 524(c)(10) to refer to the functions that Customs expressly retained un­ der Reorganization Plan No. 2 of 1973, that is, search and seizure authority un­ der the customs laws.55 Moreover, to interpret the phrase “any law enforced or administered by the United States Customs Service” to include statutes under which Customs has ei­ ther seizure or forfeiture authority, but not necessarily both, is consistent with the fact that seizure and forfeiture are separate and distinct law enforcement tools.56 Thus, statutes under which Customs only has seizure authority clearly fall within the definition of “any law enforced or administered by the United States Customs Service.” If Customs has neither seizure nor forfeiture authority, however, as we conclude it does not under section 881, the proceeds from seizures and forfei­ tures premised on that statute alone are to be deposited in the Department of Jus­ tice Assets Forfeiture Fund. This is true even if Customs has been properly des­ ignated by the Attorney General or his designee to exercise authority under that statute. Of course, the Attorney General has discretion to award the property to Customs in such joint enforcement efforts.57 One other point is worth mentioning. Section 881(e)(1), as amended by the 1988 Drug Act, provides that when property is forfeited under the Controlled Substances Act, the Attorney General has five options with respect to disposi­ tion of that property: he may (1) retain the property for official use or transfer the custody or ownership of the property to any federal agency, or any state or local law enforcement agency that participated directly in the seizure or forfeiture;58 (2) sell the property; (3) require the General Services Administration to dispose of the property; (4) forward it to DEA for disposition; or (5) under certain cir­ cumstances, transfer forfeited personal property or the proceeds of the sale of for­ feited personal or real property to any foreign country that participated in the seizure or forfeiture.59 Pursuant to 21 U.S.C. § 881(e)(2)(B), the provisions of the Department of Justice Forfeiture Fund in 28 U.S.C. § 524(c) only apply to forfeitures under the Controlled Substances Act in the event of a cash seizure or 55 This interpretation of the final clause in section 524(c)(I0) also is consistent with the legislative history of the funds, which reflects Congress’ understanding that Customs has a role to play m drug enforcement efforts. See. e g , S. Rep No. 225, 98th Cong., 1st Sess. 217-18 (1983). 56 Most of the seizure and forfeiture provisions used by Customs in drug-related cases are contained in the part of the T anff Act of 1930 entitled “Enforcement Provisions." See, e.g., 19 U.S C §§ 1590, 1595, 1595a. 57 See infra note 61. 58 As amended by the 1988 Drug Act, section 88 1(e)(3) requires the Attorney General to assure that any prop­ erty transferred to a state or local law enforcement agency under this provision of section 881 (e)( I) has a value that bears a “reasonable relationship to the degree of direct participation” by the agency, and, for fiscal years beginning after September 30, 1989, that the transfer is not undertaken in order to circumvent any prohibition on forfeitures, or limitations on the use of forfeited property, under state law. 39 21 U.S C. §881(e)(l)(A )-(E) 283 the Attorney General’s exercise of his option under 21 U.S.C. § 881(e)(1)(B) to sell the forfeited property.60Thus, section 524(c)(10) does not limit the Attorney General’s authority under section 881(e) to retain, sell, or transfer property for­ feited under section 881, and was intended to apply only to the Attorney Gen­ eral’s authority over the treatment of forfeited property which could ultimately be deposited (as cash) in the Department of Justice Assets Forfeiture Fund. Thus, Customs may receive the proceeds from property seized by Customs under the customs laws and forfeited by the Department of Justice under section 881 only if the Attorney General does not first exercise his options under section 881(e) to retain the property for official use, transfer the property, or otherwise dispose of the forfeited property under section 881(e)(1).61 It is important to note, moreover, that even if proceeds from section 881 for­ feitures are to be deposited in the Customs Forfeiture Fund in accordance with 28 U.S.C. § 524(c)(10), the Department of Justice first can collect costs for all property expenses of the forfeiture proceeding and sale, including expenses of maintenance and court costs. Section 881(e)(2)(B) provides that, unless the for­ feiture was conducted by the Postal Service, the Attorney General shall deposit in accordance with 28 U.S.C. § 524(c) all cash and proceeds remaining after pay­ ment of such expenses.62 Conclusion We conclude that Customs does not have independent authority to make seizures or forfeitures pursuant to 21 U.S.C. § 881. Accordingly, Customs agents should make seizures and forfeit property pursuant to that section only when they do so under the supervision of the DEA and by direct or derivative designation of the Attorney General. We further conclude that property forfeited after a Cus­ toms seizure is to be deposited in the Customs Forfeiture Fund when the seizure 60 21 U.S.C. § 881(e)(2)(B), as amended by the 1988 Drug Act, provides* The Attorney General shall forward to the Treasurer of the United States for deposit in accordance with section 524(c) of title 28, any amounts of such moneys and proceeds remaining after payment of the expenses provided in subparagraph (A), except that, with respect to forfeitures conducted by the Postal Service, the Postal Service shall deposit in the Postal Service Fund, under secuon 2003(b)(7) o f title 39, United States Code, such moneys and proceeds. Subparagraph (A), in turn, only applies to moneys forfeited under this title and sales conducted under section 881(e)(1)(B). 61 O f course, under 21 U.S.C. § 881(e)(1)(A), as amended by the 1988 Drug Act, the Attorney Genefal has ex­ plicit authority to transfer the custody or ownership of any forfeited property to any federal agency, or to any state or local agency that participated directly in the seizure or forfeiture, pursuant to section 616 of the Tariff Act of 1930, ch. 497, 46 Stat. 590 (1930) (codified as amended at 19 U.S.C. §§ 1202-1677). Thus, where a Customs of­ ficer has been working in cooperation with DEA in a joint investigation, or has been working under designation by the Attorney General, and property is seized and forfeited by the Department of Justice under section 881, it is within the Attorney General’s discretionary authority to transfer that tangible property to the Customs Service 62 Moreover, 19 U.S.C. § 1524 requires that reimbursable charges paid out of “any appropriation” for collect­ ing Customs revenue shall be refunded. 284 was made by the Customs Service under the customs laws, even though the prop­ erty ultimately was forfeited by the Department of Justice, either administratively or in a federal district court proceeding.63 D o u g l a s W . K m ie c Assistant Attorney General Office of Legal Counsel 63 Thus, to return to one of the practical examples mentioned above, Customs may lawfully stop and search a vessel pursuant to 19 U.S.C. § 1581(a), find illegal drugs on board and seize the vessel under 19 U.S.C. § 1581(e). According to Reorganization Flan No. 2 of 1973, Customs must turn over to DEA the drugs and any related evi­ dence, that is, the boat. DEA or the United States Attorney may then forfeit the boat under 21 U.S.C. § 881 or al­ low Customs to forfeit the boat under the smuggling laws. If the boat is forfeited under section 881, the Attorney General may retain the boat for official use, sell the boat or transfer it to the Customs Service. 21 U S.C. § 881(e)(1). If the Attorney General decides to sell the boat pursuant to section 881 (e)( 1)(B), the proceeds of sale remaining af­ ter payment of property management expenses to the Justice Department are to be transferred to the Customs For­ feiture Fund in accordance with 28 U.S.C. § 524(c)(10) because Customs made the lawful seizure of the property. 285

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May 17, 1978 78-27 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, CIVIL SERVICE COMMISSION, AND THE GENERAL COUNSEL, PRESIDENT’S REORGANIZATION PROJECT Presidential Appointees— Removal Power or Disciplinary Action— Constitutional Law (Article II, § 2, cl. 2) This responds to your inquiry whether Congress has the constitutional power to authorize any Federal officer or agency to remove, or otherwise to discipline, Presidential appointees performing executive functions.. Pursuant to the Civil Service Commission Reform bill, S. 2640, now pending in Congress, the Merit Systems Protection Board will have no authority to take any action with respect to allegations of misconduct by such Presidential appointees. Instead, the bill instructs the Special Counsel to report the results of any investigation of noncompliance by “ Presidential appointees” directly to the President, thereby leaving to the President the discretion to take whatever action he or she deems appropriate (§§ 1206(h)(2), 1206(i)). You ask whether Congress could amend the bill to confer upon the Board the authority to take disciplinary action against such appointees. First, we address the question o f removal. The Supreme Court held in Myers v. United States, 272 U.S. 52 (1926), that the Constitution does not grant to Congress any authority to regulate the removal o f executive officers appointed by the President. The essence o f the C ourt’s ruling is contained in the following statements: The power of removal is incident to the power o f appointment, not to the power of advising and consenting to appointment, and when the grant o f the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power o f removal. [Id., at 122] The condition upon which the power o f Congress to provide for the 107 removal o f inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to entrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. [Id., at 162] Accordingly, when an official performing executive functions is appointed by the President with the advice and consent of the Senate, he or she “ will be subject to removal by the President alone, and any legislation to the contrary must fall as in conflict with the C onstitution.” Id ., at 163. The bill, however, exempts from the removal authority of the Merit Systems Protection Board all “ Presidential appointees.” Although not defined in the bill, this term includes both (1) executive officers appointed by the President with the advice and consent of the Senate, and (2) those “ inferior officers” whose appointment the Congress has vested in the President alone (Art. II, § 2, cl. 2, o f the Constitution). Although the M yers case is concerned with the first class o f executive officers, dictum suggests that Congress has no greater authority to remove officers appointed by the President alone than it would have over those subjected to the advice and consent process. 272 U .S ., at 161-62.1 We find no reasonable basis for distinguishing between the two types o f appointees.2 The second question presented is whether Congress may confer on the Board the authority to take disciplinary action against Presidential appointees. Disciplinary sanctions contemplated under the bill are: demotion, debarment from Federal em ploym ent for a stated period, suspension, reprimand, or civil 'T h e p e rtin e n t lan g u ag e a d d re ssin g th is issu e in th e Myers o p in io n is: W h e th e r the a ctio n o f C o n g re ss in re m o v in g th e n e ce ssity fo r the a d v ice and c o n se n t o f th e S e n a te , an d p u ttin g th e p o w e r o f a p p o in tm e n t in th e P resid e n t a lo n e , w ou ld m ak e his p o w e r o f re m o v a l in su ch c a s e an y m o re su b jec t to C o n g re ssio n a l leg islatio n than before is a q u e stio n th is C o u rt d id n o t d e c id e in th e Perkins c a s e [ United States v. Perkins, 116 U .S . 4 8 3 ]. U n d e r th e re a so n in g u p o n w h ic h the le g islativ e d e c isio n o f 1789 w as p u t, it m ig h t b e d iffic u lt to a v o id a n e g ativ e a n sw e r, b u t it is not b e fo re us and we d o not d ecid e it. 2T h e re is a n o th e r issu e th a t a ris e s w h e n e v e r th e Myers a n a ly sis is e x a m in e d . It re la te s to th e th ird m e th o d o u tlin e d in A rt. II, § 2 , c l. 2 , fo r a p p o in tin g in fe rio r o ffic e rs; th a t c la u se p ro v id e s that “ in fe rio r o ffic e rs ” m a y , if C o n g re ss d e sire s , b e a p p o in te d by the h e ad s o f d e p a rtm e n ts. T h e q u e s ­ tio n is w h e th e r, an d to w h a t e x te n t, th e re m o v a l o f th o se o ffic e rs m a y be re stric te d . T h e C o u rt in Myers m a d e c le a r th at C o n g re ss “ m a y p re sc rib e in c id e n tal re g u la tio n s c o n tro llin g a n d re stric tin g . . . the e x e rc ise o f th e p o w e r o f re m o v a l” o f in fe rio r o ffic e rs w h o p e rfo rm e x e c u tiv e fu n c tio n s and w ho h ave b een a p p o in te d b y h e ad s o f d e p a rtm e n ts. T h e C o u rt in Myers a lso said that C o n g re ss c o u ld not “ d ra w to its e lf o r to e ith e r b ra n c h o f it, th e p o w e r to re m o v e o r the rig h t to p a rtic ip a te in the e x e rc ise o f th a t p o w e r .” Id., at 161. T h e q u e stio n m ig h t be ra ised if by a ssig n in g re m o v a l a u thority to the M erit S y ste m s P ro te c tio n B o ard — an in d e p e n d en t a g e n c y v ested w ith q u a si-ju d ic ial p o w e r— C o n g re ss has in so m e fa sh io n “ d ra w n to its e lf " th e p o w e r o f re m o v a l. T h e sh o rt a n sw e r lies in th e C o u rt’s a n a ly sis in Weiner v. United States, 357 U .S. 3 4 9 , 3 5 5 -5 6 (1 9 5 8 ), in w hich the C o u rt m a d e c le a r th at in d e p e n d en t re g u la to ry c o m m is sio n s are to be in d e p e n d en t not o n ly from the E x e c u tiv e b u t fro m C o n g re ss. U n d e r th e c irc u m s ta n c e s, w e h av e little d o u b t a b o u t the p ro p riety o f the B o ard ta k in g d is c ip lin a ry a c tio n , in c lu d in g re m o v a l, w ith re sp e c t to su ch in fe rio r o ffice rs. 108 penalty. § 1207(a). We are aware o f no precedents controlling this question, but we believe that Congress does have, and must have, some authority to prescribe sanctions against executive branch officials who act in violation of existing law. The more difficult issue is whether the imposition of those sanctions can be assigned to a body over which the President has limited control. Insofar as Presidential appointees are concerned, we doubt that Congress may take from the President the ultimate authority to act in that manner. This would surely disrupt the appointee’s ability to carry out the instructions of the President. The power to dem ote, suspend, or debar a Presidential appointee from Federal employment carries with it the power to supervise the appointee’s actions; more importantly, to take this power away from the President would interfere with the President’s duty faithfully to execute the laws. The conclusion is perhaps more doubtful with respect to lesser actions such as reprimand and civil penalties, but here again it is quite likely that disruptions would result. For a Presidential appointee to set aside the time to prepare for a hearing and to follow through with the administrative process contemplated by the bill might be a substantial interference with the President’s necessary direction and control o f such officials. It would also cloud the line o f authority between the President and his subordinates. The M yers holding proceeded from the view that the power to remove is implicit in the power to appoint and must necessarily be retained by the President if he is to fulfill his constitutional obligation faithfully to execute the laws. A different conclusion cannot be drawn with respect to the imposition of what might be seen as less drastic sanctions. Larry A. H am m ond Deputy Assistant Attorney General Office o f Legal Counsel 109

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Presidential Authority to Require the Resignations of Members of the Civil Rights Commission Members of the Civil Rights Commission serve at the pleasure of the President. The President may therefore require their resignations. November 20, 1972 MEMORANDUM OPINION FOR THE SPECIAL CONSULTANT TO THE PRESIDENT* This is in response to your request for our opinion whether the President is authorized to require the resignations of members of the United States Commission on Civil Rights. Stated another way, the question is whether these officials serve at the pleasure of the President. For the reasons detailed below, we conclude that Civil Rights Commission members do serve at the pleasure of the President. I. The basic rule governing presidentially-appointed officials was stated by James Madison during the first session of the first Congress: “[T]he power of removal result[s] by a natural implication from the power of appoint[ing].” 1 Annals of Cong. 496 (1789). The principal problems in this area concern whether and to what extent Congress may limit the power of removal which flows from the power of appointment. Myers v. United States established that Congress may not limit the power of the President to remove purely executive officers appointed with the advice and consent of the Senate, such as cabinet officers. 272 U.S. 52 (1926). On the other hand, Congress can, for example, limit the President’s power to remove members of independent regulatory commissions and specially constituted tribunals. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). The principal theory underlying this congressional authority is that such bodies may need to function independently of executive control in their legislative and adjudicative capacities. The Civil Rights Commission, primarily an investigative and advisory body, does not fall clearly into either of these categories. For purposes of this discussion, however, we will * Editor’s Note: The memorandum was addressed to “the Honorable Leonard Garment, Special Consultant to the President.” The reference to Mr. Garment as “Special Consultant,” not “Special Counsel,” appears to have been accurate and deliberate. Mr. Garment was described in multiple news articles at the time as a “special consultant” to the President on civil rights and cultural issues. See, e.g., Ex-Law Partner to Join Nixon, Wash. Post, June 7, 1969, at A4; Carroll Kilpatrick, Leonard Garment Is Bright, Musical, a Known New York Liberal and a Man Close to Richard Nixon, Wash. Post, June 7, 1970, at 17. In 1973, Mr. Garment succeeded John Dean as Counsel to the President. Lawrence Meyer, New Counsel Had Obscure Role at Top, Wash. Post, May 1, 1973, at A8. 351 Supplemental Opinions of the Office of Legal Counsel in Volume 1 assume that Congress could have insulated its members from removal at the pleasure of the President. The question, then, is whether it has done so. The statutory descriptions governing the appointment and duties of commissioners are the starting point of analysis. 42 U.S.C. § 1975 (1970). With respect to appointment, commissioners do not serve for a fixed term, and there is no statutory provision governing removal. By contrast, members of independent regulatory bodies usually serve for a fixed term of years, and some may only be removed for “cause” or other specified reason. While neither of these factors is dispositive, absent other strong reasons pointing toward independent tenure, the natural implication to be drawn is that Civil Rights Commission members serve at the President’s pleasure. Perhaps the strongest case for limiting the President’s removal power is presented by a body created to adjudicate the rights of private parties. The Civil Rights Commission has no such authority, and this has been established by Supreme Court decision. In Hannah v. Larche, certain state officials sought to enjoin a Civil Rights Commission hearing in Louisiana concerning discriminatory voter registration practices on the ground that, as prospective witnesses, they were entitled to a panoply of procedural protections denied by the Commission’s rules, including the right to confront and cross-examine other witnesses. 363 U.S. 420 (1960). The Court sustained the Commission’s rules, saying that As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and factfinding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action. Id. at 440–41. There are other indicia of executive control over the Commission. The statute establishes it “in the executive branch of the Government.” 42 U.S.C. § 1975(a). Although, standing alone, this phrase has no special significance, it is significant that many of the regulatory commissions whose members clearly do not serve at the President’s pleasure—for example, the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission—are not similarly established “in the executive branch.” The President designates the Chairman and the Vice Chairman. 42 U.S.C. § 1975(c). Employees of the federal government, including, presumably, employees clearly subject to the President’s control, are eligible to serve as members. 42 U.S.C. § 1975b(b) (1970). 352 Presidential Authority to Require Resignations of Civil Rights Commissioners The staff director, a full-time employee responsible for day-to-day operations, is appointed by the President following consultation with the Commission, and subject to Senate confirmation. 42 U.S.C. § 1975d(a) (1970). The Commission’s budget requests are subject to OMB approval. The legislative history of the Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634, which originally established the Commission, does not speak directly to the matter of the President’s removal power. However, an amendment offered by Senator Kefauver in floor debate, and defeated, lends some support to our conclusion. The Kefauver amendment would have established the Commission as an arm of Congress, with most of its members appointed by Congress. 103 Cong. Rec. 13,456 (1957). In support of his amendment, Senator Kefauver argued that such a commission would be more independent than one in the Executive Branch, and warned against the “dangerous degree of Executive control” he foresaw in the Commission as it was later established. Id. at 13,458. Senators Javits, Dirksen and Knowland spoke against the Kefauver amendment, urging establishment of an “executive commission,” and the amendment was defeated by voice vote. Id. at 13,459. A further argument in support of the President’s removal power with respect to members of the Civil Rights Commission rests upon the absence of a stated term of appointment. While this omission may have had its origin in the temporary status of the Commission, its tenure has been extended six times by the Congress and it has had a life of fifteen years. It should not be presumed that Congress intended that members of the Commission would serve indefinitely without any possibility—other than death or voluntary resignation—for change in the membership of the Commission. Lifetime appointments are confined to the judiciary in our political systems and it would be anomalous to view persons exercising purely advisory functions as having permanent status. II. In support of an argument that members of the Commission do not serve at the President’s pleasure, the following points could be made. First, among its other statutory duties, the Commission is directed to “appraise the laws and policies of the Federal Government with respect to denials of equal protection of the laws.” 42 U.S.C. 1975c(a)(3) (1970). Independent tenure would tend to promote the discharge of that duty. Second, the Commission is directed to submit reports to both the President and Congress. 42 U.S.C. § 1975c(b). This joint accountability feature may be said to derogate from broad executive control. Third, unlike most of the independent regulatory commissions in which the President may name a majority of his own party as vacancies arise, the Commission is strictly bipartisan—it has six members, and no more than three may be of the same party. 42 U.S.C. § 1975(b). 353 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Fourth, the Commission has always been a temporary agency. It was originally established for two years, Pub. L. No. 85-315, § 104, 71 Stat. at 635, and has since been extended six times for additional temporary periods, Pub. L. No. 86-383, tit. IV, 73 Stat. 717, 724 (1959); Pub. L. No. 87-264, tit. IV, 75 Stat. 545, 559 (1961); Pub. L. No. 88-152, § 2, 77 Stat. 271, 271 (1963); Pub. L. No. 88-352, § 504(b), 78 Stat. 241, 251 (1964); Pub. L. No. 90-198, § 1, 81 Stat. 582, 582 (1967); Pub. L. No. 92-496, § 4, 86 Stat. 813, 814 (1972). It can be argued, then, that Congress intended for members to serve for the relatively short life of the Commission. Although each of these points is valid, we do not find them persuasive against the contrary arguments, either singly or in combination. Moreover, most of these points can be answered to some extent. As to the first, as a matter of history, the Commission has in fact been a vigorous critic of administration civil rights policies, Republican and Democratic, through much of its history. As to the second, the requirement of reporting to Congress was added in Senate floor discussion without debate or any indication that the requirement affected the Commission’s status in the Executive Branch. 103 Cong. Rec. 13,456 (1957). Moreover, executive officers or agencies are quite frequently required by statute to report to Congress as well as the President. As to the third—bipartisanship—there is no strong answer, but we consider it a relatively minor point. As to the fourth, the Commission, as noted above, has become a more or less permanent agency. Father Theodore M. Hesburgh, for example, served for fifteen years, from the Commission’s inception. Although this argument may have had force a decade ago, we do not view it as very substantial now. Last year, Father Hesburgh wrote an article entitled Integer Vitae: Independence of the United States Commission on Civil Rights, 46 Notre Dame Law. 445 (1971), in which he discussed, among other things, the President’s removal power vis-à-vis the Commission. He noted several of the arguments discussed in this memorandum, concluding that “the legality of a [presidential] demand for resignation remains in question.” Id. at 454. Reportedly, Father Hesburgh has now conceded the legality of such a demand. See Spencer Rich, Nixon Confers with Cabinet Aides on Reorganization, Wash. Post, Nov. 18, 1972, at A15 (“What I did say was that if I were asked to resign by the reelected President, as is his privilege, I would. He did, and I did resign.”) (quoting Father Hesburgh). In his article, Father Hesburgh quotes a 1964 letter to the other commissioners from Solicitor General Erwin Griswold, then a commissioner, in which Griswold stated that removal at the pleasure of the President was not, in his view, “either the legal or factual situation.” 46 Notre Dame Law. at 454. Apparently, however, the Solicitor General’s expressed view was not accompanied by legal argument. The Hesburgh article also includes a review of the practice of Civil Rights Commissioners with regard to submission of resignations to a new or reelected President. Resignations were tendered in 1961, in November 1963, and again in 1964. Id. at 454. In 1968, four commissioners did not tender their resignations, and 354 Presidential Authority to Require Resignations of Civil Rights Commissioners two did so for personal reasons. Id. On balance, then, the rather brief historical practice favors the President’s authority to require resignations. III. In conclusion, while there are no directly controlling judicial precedents, we believe that the arguments clearly weigh in favor of the view that members of the Civil Rights Commission serve at the pleasure of the President. ROGER C. CRAMTON Assistant Attorney General Office of Legal Counsel 355

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Authority of the Attorney General to Make Successive Designations of Interim United States Marshals Under 28 U S.C. § 562, the A ttorney General may make two or m ore successive designations o f a person to serve as interim United States m arshal in a judicial district where the m arshal’s office is vacant A fter the expiration o f an initial designation o f a United States m arshal under 28 U.S C § 562, the Attorney General m ay authorize a person to act as m arshal under 28 U.S.C. §§ 509, 510. January 19, 1993 M e m o r a n d u m O p in io n for t h e O f f ic e of the A s s is t a n t to the At t o rn e y G eneral A tto rn ey G eneral This memorandum responds to your request for our opinion whether, under 28 U.S.C. § 562, the Attorney General may make tw o or more successive designations of a person to serve as interim United States marshal in a judicial district where the marshal’s office is vacant.1 You have also asked whether, after the expiration o f an initial designation under § 562, the Attorney General may authorize a person to act as marshal under 28 U.S.C. §§ 509, 510. W e conclude that § 562 permits the A t­ torney General to make successive interim designations, and that the Attorney General also may authorize a person to act as marshal under §§ 509 and 510. I. You have advised us that, in several judicial districts, deputy marshals were serving or are serving as interim marshals, pursuant to designations made under 28 U.S.C. § 5 6 2 , and delegations under 28 U.S.C. § 5 1 0 . The designations, under § 562, of some of these interim marshals expired thirty days after the end of the 1 28 U S.C § 562 provides., (a) In the case of a vacancy in the office of a United Stales marshal, the Attorney General may designate a person to perform the functions of and act as marshal, except that the Attorney Gen­ eral may not designate to act as marshal any person who was appointed by the President to that office but with respect to such appointment the Senate has refused to give its advice and consent. (b) A person designated by the Attorney General under subsection (a) may serve until the earli­ est of the following events: (1) The entry into office of a United Slates marshal appoinied by the President, pursuant to section 561(c) (2) The expiration of the thirtieth day following the end of the next session of the Sen­ ate (3) If such designee of ;he Attorney General is appointed by the President pursuant to section 561(c), but the S enne refuses to give its advice and consent to the appointment, the expiration of the thirtieth day following such refusal 1 Opinions o f the O ffice o f L egal C ounsel second session o f the Senate for th e 102nd Congress. Other interim designations will expire thirty days after the en d of the current session o f the Senate.2 Faced with the prospect that a new marshal would not have entered into office by the ex­ piration date o f som e o f the interim designations, the Attorney General issued or­ ders redesignating the same deputies as interim marshals and delegating to them authority to act as m arshals. If this situation recurs, the Attorney General wishes to pursue a sim ilar course, redesignating the same deputy marshal, or another deputy marshal, to serve as interim marshal and delegating appropriate authority to that person. N one o f the designees has been, or will have been, appointed a marshal by the President, and refused advice and consent by the Senate. II. Section 562 grants the Attorney General authority, subject to specific eligibility lim itations, to “designate a person to perform the functions o f and act as marshal” when the office of marshal is vacant. W hile the marshal vacancy statute imposes limits on the authority it grants to the Attorney General, the language of the statute is com patible with a grant of authority to make successive designations.3 The stat­ ute does not explicitly bar the A ttorney General from issuing a new designation when a previous one expires.4 W e hesitate to read such a limitation into the stat­ ute. Doing so could lead to serious gaps in the United States M arshals Service’s legal authority to perform its vital duties, including its “primary role and mission” o f “provid[ing] for the security” o f the federal courts. 28 U.S.C. § 566(a). For any num ber o f reasons, a new marshal may not yet have taken office when an interim m arshal’s designation expires. T he President may not have submitted a nominee to the Senate; the Senate may fail to act on the nomination, or may reject it. If the Senate is in recess on the date an interim m arshal’s designation terminates w ithout a new m arshal’s having taken office, the President may exercise his con­ stitutional authority to make a recess appointm ent to the vacant marshal position. 2 We interpret the phrase "end of the next session o f the Senate,” in 28 U S.C. § 562(b)(2), to have the same meaning as the nearly identical phrase in the Recess Appointments Clause, U.S. Const, art. II, § 2, cl 3, that is, the adjournment sine die of the session of the Senate for the first session of Congress that begins after the designation was made. See Recess Appointments, 41 Op. A tfy Gen 463, 469-71 (I960), Recess Appointm ents Issues, 6 Op. O L C. 585, 586-87 (1982) Thus, interim marshal designations made during the first session of the 102nd Congress expired thirty days after the adjournment of the Senate si/ie die for the second session of the 102nd Congress. Designations made during the second session of the 102nd Congress will term inate, under § 562(b)(2), thirty days after the adjournment of the Senate sine die for the first session o f the 103rd Congress, probably November o r December, 1993 3 The first rule of statutory construction is to look to the language o f the statute. See, e.g., Pennsylvania D e p ’t o f Pub Welfare v. Davenport, 495 U.S. 552, 557-58 (1990), Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Greyhound Corp v M l. Hood Stages, Inc., 437 U S. 322, 330 (1978) 4 The legislative history does not address the situation in which an interim appointment has automatically term inated without a permanent marshal’s having entered into office. It says little more than that § 562 “provide[s] for the appointment of an Acting Marshal by the Attorney General” and “also assures the tempo­ rary nature of such interim appointments . . by providing for the automatic termination of such interim appointm ents ” 134 Cong. Rec. 32,709 ( 1988) 2 A u th o rity o f the A tto rn ey G eneral to M ake Successive D esignations o f Interim U nited States M arshals U.S. Const, art. II, § 2, cl. 3. But the Senate will not necessarily be in recess on the thirtieth day following the end of its session, or following its refusal to give advice and consent to an appointment. In such circumstances, § 562, if construed as per­ mitting only a single exercise of the authority to designate an interim marshal, would provide no mechanism for conferring upon anyone the authority to perform the functions of a marshal in a district where the m arshal’s office is vacant. Such a construction would be contrary to the apparent purpose o f § 562, which is to pro­ vide continuity in the performance of the m arshal’s functions. W hile the courts have not addressed the issue o f successive interim designations under the marshal vacancy statute, judicial interpretation of a statute governing interim United States attorney appointments supports our analysis of § 562. Simi­ lar to the marshal vacancy statute, the United States attorney vacancy statute authorizes the Attorney General to “appoint a United States attorney for the district in which the office . . . is vacant” to serve for 120 days, or until the President fills the office by appointment. 28 U.S.C. § 546. At least one court has found that this language permits the Attorney General to appoint as “Acting United States A ttor­ ney” a person whose 120-day interim appointm ent as United States Attorney for the same district had expired. In re Grand Jury Proceedings, 671 F. Supp. 5, 6 & n.3 (D. Mass. 1987).5 III.* The Attorney General has broad authority to delegate almost “ [a]ll functions of other officers of the Department o f Justice and all functions of . . . employees o f the Department” to “any other officer [or] employee . . . of the D epartm ent.”6 The language of these statutes supports the view that the Attorney General may delegate the authority to perform all o f the functions of a United States marshal to a deputy marshal, without regard to whether that deputy marshal, or 5 There is a difference between ihe two vacancy statutes that suggests that successive interim appointments by the Attorney General may be more clearly permissible under the marshal statute. Unlike § 562, § 546 explicitly provides a means for dealing with the automatic expiration o f a first interim appointment: In that circumstance, “the district court . . . may appoint a United States attorney to serve until the vacancy is filled.’’ 28 U S.C. § 546(d). See also Memorandum for W illiam P Tyson, Director, Executive Office for United States Attorneys, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office o f Legal Counsel (Nov 13, 1986) (suggesting that the Attorney General may not make successive interim appoint­ ments pursuant to section 546); but see In re Grand Jury Proceedings, 673 F. Supp. 1138, 1142 n. 11 (D. Mass 1987) (“(I]t is not clear . . that the Attorney General him self would be foreclosed from making a second interim appointment under” section 546). ’ Editors Note- The Vacancies Reform Act o f 1998 has called into question the conclusions reached in this section. See Pub. L No 105-277, 112 Stat 2681-611 (1999) (to be codified at 5 U.S.C. §§ 3345-3349d) 6 28 U.S C § 509 provides, “All functions of other officers o f the Department of Justice and all functions o f agencies and employees of the Department of Justice are vested in the Attorney General except*’ for sev­ eral functions irrelevant here. Section 510 of title 28 provides, “The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the De­ partment of Justice of any function of the Attorney General.” 3 Opinions o f th e O ffice o f L egal C ounsel anyone else, has been serving as an interim marshal for the district, pursuant to § 562.7 It is, nonetheless, possible to construe § 562 as limiting the Attorney G eneral’s broad authority under §§ 509 and 510. On that view, because § 562 grants the Attorney G eneral m ore specific authority to address vacancies in United States m arshals’ offices, the section must have meant to set forth the full extent o f the Attorney G eneral’s authority in that area. It might also be argued that such a reading of § 562 is necessary to m ake the section’s time limits on interim marshal designations m eaningful. Allowing the Attorney General to make potentially un­ limited delegations o f the authority to act as a marshal, such an argument might conclude, could displace the process o f appointm ent by the President and advice and consent by the Senate. The better view is not to read into § 562 such a limitation on the Attorney Gen­ eral’s authority under §§ 509 and 510. Section 562 establishes procedures and criteria that the A ttorney General m ust follow if he wishes to designate a person to serve as an interim m arshal pursuant to the authority conferred by the marshal va­ cancy statute. One need not, and should not, assume that § 562 provides the exclu­ sive m eans by which the Attorney G eneral may delegate the authority to perform a m arshal’s functions, or that § 562 displaces any additional legal authority that the Attorney General otherw ise would possess to address marshal vacancies.8 Our interpretation preserves a function fo r § 562 without requiring that it operate so as to interfere with law enforcement, co u rt security or the performance of other vital functions o f the m arshal’s office. T his conclusion finds support in judicial interpretations of the Attorney Gen­ eral’s authority to delegate under §§ 509 and 510, and construction of those stat­ utes in conjunction with m ore “specific” statutes governing the Attorney G eneral’s authority to designate or appoint others to perform functions of the Department of Justice. See, e.g., In re Subpoena o f Persico, 522 F.2d 41, 54-55 (2d Cir. 1975) (Attorney General has authority to assign others to perform prosecutorial functions “not only under 28 U.S.C. § 515 [authorizing specific designation], but also under . . . other statutes,” including §§ 509 and 510); In re G rand Jury Proceedings, 673 F. Supp. at 1138-39, 1142 (accepting Attorney G eneral’s delegation, under § 510, of authority to act as U.S. attorney, to person whose interim appointment as U.S. attorney under § 546 had terminated); Bruzzone v. Hampton, 433 F. Supp. 92, 97 (S.D.N.Y. 1977) (statute authorizing marshals to remove deputy marshals did not 7 As "officials o f the [United Slates M arshals] Service,” 28 U S.C §§ 564, 566(d), deputy marshals are “officer[s or] employee[s] . o f ihe Department of Justice,” 28 U.S.C. § 510. 8 We do not regard the Vacancies Act, 5 U S.C §§ 3345-3349, as limiting the Attorney General’s author­ ity to delegate under §§ 509 and 510 Our long-standing view is that the time limits the Vacancies Act im­ poses on designations apply only to designations made under that act, and that §§ 509 and 510 should be construed as remedial legislation superseding the Vacancies Act. See, e g_, Memorandum for Rudolph W Giuliani, Associate Attorney General, from Ralph W Tarr, Deputy Assistant Attorney General, Office of Legal Counsel (Dec. 30, 1982). 4 A u thority o f the A ttorney G eneral to M ake Successive D esignations o f Interim U nited States M arshals diminish Attorney G eneral’s power, under § 509, to “perform the functions of the M arshal” or to delegate to another officer the m arshal’s authority to remove deputy marshals).9 IV. For the reasons set forth above, we conclude that 28 U.S.C. § 562 authorizes the Attorney General (subject to the limitations the statute explicitly imposes) to des­ ignate a deputy marshal to serve as interim marshal upon the expiration o f his, or another person’s, prior designation as interim marshal in a judicial district where the m arshal’s office is vacant. We also conclude that 28 U.S.C. §§ 509, 510 authorize the Attorney General to delegate the authority to perform the functions of a United States marshal to a deputy marshal. We recommend that Attorney Gen­ eral Orders designating interim United States marshals recite, in an abundance of caution, that the Attorney General acts pursuant to the authority granted by 28 U.S.C. § § 5 0 9 ,5 1 0 , 562. JOHN C. HARRISON Deputy Assistant Attorney General Office o f Legal Counsel 9 See also Memorandum for Robert A. McConnell. Assistant Attorney General, Office of Legislative Affairs, from Robert B Shanks, Deputy Assistant Attorney General, Office of Legal Counsel (May 24, 1983) (Attorney General has authority to appoint acting U S. attorneys under § 510, predecessor to § 546 vacancy statute is unnecessary). An earlier OLC opinion suggested that § 510 gave the Attorney General authority to make interim appointments to vacant U.S attorney positions, but not necessarily to vacant U.S. marshal positions. That opinion stressed that a marshal was principally “an officer of the court,” that a statute authorized district courts to make interim marshal appointments, and that marshals (including interim ap­ pointees in vacant posts) had to give a personal bond to guarantee proper handling of funds Memorandum for Lawrence E Walsh, Deputy Attorney General, from Robert Kramer, Assistant Attorney General, Office o f Legal Counsel at 3 (Oct 21, 1959) Those factors have changed' marshals now have substantial investi­ gatory and law enforcement duties, 28 U.S C § 566, the current marshal vacancy statute does not give courts interim appointment power (while the U.S attorney vacancy statute now does, see, supra note 6), and mar­ shals are no longer required to give personal bonds. 5

Write a legal research memo on the following topic.

Authority of Florida Police Officers to Make Arrests on the Basis of FBI Pick-Up Notices The authority of a Florida police officer to make a warrantless arrest for an alleged violation of federal law depends on state law and cannot be based merely on the existence of an FBI pick-up notice. January 28, 1953 MEMORANDUM OPINION FOR THE DIRECTOR FEDERAL BUREAU OF INVESTIGATION With your memorandum of October 9, 1952, addressed to the Deputy Attorney General and referred to this office for reply, you sent a copy of an opinion given by Attorney General Richard W. Ervin of Florida to the Florida Peace Officers’ Association (dated September 15, 1952) containing answers to several questions regarding the authority to make arrests by municipal police officers of Florida. The portion concerning the federal government and this Department came under the heading of question 4. The question read: 4. What authority, if any, does a municipal police officer have to make arrests upon the basis of pick-up notices sent out by other officers? The answer took the view that under the Florida statutes a municipal police officer (regarded as a peace officer, see page 2 of the opinion), who receives a pick-up notice from another peace officer of Florida showing that a named person is wanted for a felony under the laws of Florida, may accept the notice as reasonable ground to believe that a felony has been committed and reasonable ground to believe that the wanted person committed it, and has authority to arrest the wanted person. On the other hand, without assigning any reason the answer assumed a distinction in the case of pick-up notices received from federal officers and further assumed that a municipal police officer has only the common law right of a private citizen to arrest for a federal felony. If he should make an arrest, it was stated the municipal police officer acts at his peril (subject to liabilities indicated in the answer to question 5) when he arrests for a federal felony on the strength of the federal pick-up notice, even if it is sufficient to give him reasonable ground to believe that a federal felony has been committed and that the person to be arrested has committed it, because, as in the case of arrest by a private citizen, reasonable ground to believe that a federal felony has been committed will not suffice; a federal felony must actually have been committed and the municipal police officer must have reasonable ground to believe that the person to be arrested committed it. The answer further stated that a municipal police officer acting as a private citizen had no authority to arrest for a federal misdemeanor upon the basis of a pick-up notice. 149 Supplemental Opinions of the Office of Legal Counsel in Volume 1 You have pointed out that substantially all of the requests for pick-ups made by the FBI are in cases where federal warrants are outstanding and that the opinion does not distinguish between the situation where a warrant is outstanding and the situation where one has not been issued. We think that the Florida opinion on this subject is unfortunate in this and several other respects. In testing the lawfulness of arrest, if we were to assume that an arrest by a state or municipal police officer pursuant to an FBI pick-up notice is an arrest without a warrant, there is no basis in federal or state law at the present time for distinguishing between the conduct of a state or local police officer when he arrests without a warrant for a state felony or a federal felony. The United States Supreme Court dealt squarely with the issue in United States v. Di Re, 332 U.S. 581 (1948). Speaking through Mr. Justice Jackson, the Court said: We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be “agreeably to the usual mode of process against offenders in such state.”8 There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest. . . . No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall. Id. at 589–90, 591 (footnote 8 below is from page 589 of the reported opinion). The test which the Court applied (in this arrest by a state police officer for a federal war rationing violation) was section 177 of the New York Code of Criminal Procedure, which is a statute cast in general terms providing the 8 The Act of September 24, 1789 (Ch. 20, § 33, 1 Stat. 91), concerning arrest with warrant, provided: “That for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offense.” This provision has remained substantially similar to this day. 18 U.S.C. § 591. See also 1 Op. Att’y. Gen. 85, 86. 150 Authority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices authority of a peace officer to arrest without warrant in three types of cases. The statute resembles section 901.15, Florida Statutes, 1951 (which is quoted at length at a later point in this memorandum), except that the Florida statute is somewhat broader in its coverage. It is important for our purposes to observe that, although the arrest and subsequent search in Di Re failed because the arresting officer had no information which would lead him to believe that either a felony or misdemeanor had been committed by Di Re, the action of the arresting officer was tested by New York’s statutes on arrest applicable to peace officers and not on any theory that the state peace officer was acting as a private citizen or that there was any special or different rule when he acted to arrest for a federal offense. Di Re was followed shortly by Johnson v. United States, 333 U.S. 10 (1948), in which an arrest on a federal narcotics violation, effected without a warrant by federal narcotics agents and a city police officer, was tested by the law of the State of Washington applicable to state officers, the Court holding again that state law determines the validity of arrest without warrant. Still later, the contemporaneous state of the law of arrest, as it was confirmed in Di Re, was described by Judge Learned Hand in United States v. Coplon as follows: In the absence of some controlling federal law the validity of an arrest for a federal crime depends upon whether an arrest for a state crime would have been valid under the state law, if made in the same circumstances. Whatever the doubts which might have existed as to this before 1948, they were laid in that year. At common law a private person, as distinct from a peace officer, had the power to arrest without warrant for a felony, committed in his presence, and for one, actually committed in the past, if he had reasonable ground to suppose that it had been committed by the person whom he arrested. A “constable” or other “conservator of the peace” had all the powers of arrest without warrant of a private person, and in addition the power to arrest for felony, although no felony had actually been committed, if he had reasonable ground to suppose that the person arrested had committed the felony. That was the only distinction between their powers and those of a private person. The law of New York is nearly, if not quite, in accord with this. 185 F.2d 629, 633–34 (2d Cir. 1951) (footnotes omitted). It might be observed that the law of Florida as codified in section 901.15, Florida Statutes, 1951, is even more nearly in accord with the common law, as noted in Dorsey v. United States, 174 F.2d 899 (5th Cir. 1949). In this case, cited by the Florida Attorney General’s opinion, the Court acknowledged the rule of Di Re; but the point of Dorsey is that investigators of the federal Office of Price Administration who the court said were not arresting officers, but who nevertheless made an 151 Supplemental Opinions of the Office of Legal Counsel in Volume 1 arrest without a warrant for a federal offense, had no greater rights than private persons in effecting the arrest. In Florida, though the statutes make no provision for arrest by a private person, the Court held he may nevertheless act under the common law rule to arrest for a felony committed in his presence. This was the situation in the case and the arrest was sustained. The opinion is entirely in accord with the views laid down by the Supreme Court and applied in the other circuits, as hereinafter noted. But the holding of the Dorsey case does not deal with the powers of arresting officers, and in our view is misapplied if it is used, as it appears to be used in the Florida Attorney General’s opinion, to correlate the powers of arresting officers, state or federal, to that of private citizens in making arrests without warrants for federal felonies. Illustrating that the Supreme Court opinions in Di Re and Johnson did not establish “new” law, but confirmed a long-accepted practice, is Cline v. United States, in which the court held that “[t]he procedure for making arrests which obtains under the state practice is applicable to arrests made for crimes against the United States,” 9 F.2d 621, 621 (9th Cir. 1925) (citing Prize Ship and Crew—How To Be Disposed Of, 1 Op. Att’y. Gen. 85, 86 (1798)), and a group of early federal cases. Other cases in other circuits or districts which have followed and applied the Di Re case are Pon v. United States, 168 F.2d 373 (1st Cir. 1948), a narcotics case, holding the validity of arrest to be determined by the law of Massachusetts under which an arrest by an officer without a warrant is authorized if the officer has reasonable grounds to believe that a felony was committed by the defendant; Brubaker v. United States, 183 F.2d 894 (6th Cir. 1950), a Dyer Act violation, holding the legality of the arrest to be governed by the law of Tennessee, which provides that an officer may without a warrant arrest a person when a felony has in fact been committed and the officer has reasonable cause for believing the person arrested committed the felony; United States v. Horton, 86 F. Supp. 92 (W.D. Mich. 1949), upholding an arrest without a warrant by city police for a federal narcotics violation as tested by the law of Michigan, the pertinent of which are practically identical with subsection (2) and (3) of section 901.15, Florida Statutes, 1951; and United States v. Guller, 101 F. Supp. 176 (E.D. Pa. 1951), testing an arrest in a narcotics case by the Pennsylvania law which accords with the common law rules. In the Di Re and subsequent cases involving arrests for federal offenses by state officers, apparently it was accepted without argument, so far as the opinions show, that a state officer may arrest for federal offenses. The issue was the standard to be applied. But the matter assumed had not gone without argument, earlier, and the leading case is probably Marsh v. United States, 29 F.2d 172 (2d Cir. 1928). In an opinion by Judge Learned Hand, the court held that a state police officer had authority to arrest for violation of federal law. The court pointed out that the state statute (section 177 of the New York Code of Criminal Procedure, the same statute later applied in Di Re, which provides that a peace officer may without a warrant arrest a person for a crime committed or attempted in his presence) had been 152 Authority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices universally used by New York police officers in arresting for federal crimes regardless of whether they were felonies or misdemeanors. But the court went on to say: Moreover, we should be disposed a priori so to understand it. Section 2 of article 6 of the Constitution makes all laws of the United States the supreme law of the land, and the National Prohibition Law is as valid a command within the borders of New York as one of its own statutes. True, the state may not have, and has not, passed any legislation in aid of the Eighteenth Amendment, but from that we do not infer that general words used in her statutes must be interpreted as excepting crimes which are equally crimes, though not forbidden by her express will. We are to assume that she is concerned with the apprehension of offenders against laws of the United States, valid within her border, though they cannot be prosecuted in her own courts. Marsh, 29 F.2d at 174. The court went on further to reject the argument that Congress in enacting section 33 of the Judiciary Act of 1789, providing for arrest and commitment or bail of offenders against federal law by state officials “agreeably to the usual mode of process against offenders in such state,” had by implication forbidden any state arrests for federal offenses without warrant. Act of Sept. 24, 1789, ch. 20, § 33, 1 Stat. 73, 91, later codified as amended at Rev. Stat. § 1014 (2d ed. 1878), 18 Stat. pt. 1, at 189 (repl. vol.), and at 18 U.S.C. § 591 (1925–26), now 18 U.S.C. § 3041 (1952). On the contrary, said the court anticipating what was later held in Di Re, it would be unreasonable to suppose that it had been the purpose of the Congress to deny to the United States any help that the states may allow. Marsh was followed in United States v. One Packard Truck, 55 F.2d 882 (2d Cir. 1932). In the light of the well-established body of law and practice reviewed here, it would seem to us that there is no justification, and it is contrary to the precedents, to read section 901.15, Florida Statutes, 1951, particularly subsections (3) and (4), as purporting to exclude arrests for federal offenses. The Florida statute is cast in general terms like the New York, Michigan, Tennessee, Massachusetts, and other statutes construed by the courts, and its language and derivation afford no basis for the artificial distinction. Unfortunately in this regard the opinion of the Florida Attorney General in dealing with question 4 paraphrases rather than quotes the Florida statute, and in so doing inserts the word “Florida” in several places where it does not appear in the statute, thereby creating an erroneous impression. For your benefit there is set out verbatim the provisions of section 901.15: When arrest by officer without warrant is lawful.—A peace officer may without warrant arrest a person: 153 Supplemental Opinions of the Office of Legal Counsel in Volume 1 (1) When the person to be arrested has committed a felony or misdemeanor or violation of a municipal ordinance in his presence. In the case of such arrest for a misdemeanor or violation of a municipal ordinance, the arrest shall be made immediately or on fresh pursuit. (2) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it. (3) When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it. (4) When a warrant has been issued charging any criminal offense and has been placed in the hands of any peace officer for execution. These are, as said of the comparable New York statute by Judge Learned Hand, “general words used in her statutes,” Marsh, 29 F.2d at 174, from which it is not to be inferred that there are excepted crimes which are equally crimes by the supreme law of the land though not forbidden expressly by Florida law. The notion that federal criminal law may be “foreign” to the states was laid to rest by the Supreme Court in Testa v. Katt, 330 U.S. 386 (1947), where the Court said: It cannot be assumed, the supremacy clause considered, that the responsibilities of a state to enforce the laws of a sister state are identical with its responsibilities to enforce federal laws. Such an assumption represents an erroneous evaluation of the statutes of Congress and the prior decisions of this Court in their historic setting. Those decisions establish that state courts do not bear the same relation to the United States that they do to foreign countries. The first Congress that convened after the Constitution was adopted conferred jurisdiction upon the state courts to enforce important federal civil laws, and succeeding Congresses conferred on the states jurisdiction over federal crimes and actions for penalties and forfeitures. Enforcement of federal laws by state courts did not go unchallenged. Violent public controversies existed throughout the first part of the Nineteenth Century until the 1860’s concerning the extent of the constitutional supremacy of the Federal Government. During that period there were instances in which this Court and state courts broadly questioned the power and duty of state courts to exercise their jurisdiction to enforce United States civil and penal statutes or 154 Authority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices the power of the Federal Government to require them to do so. But after the fundamental issues over the extent of federal supremacy had been resolved by war, this Court took occasion in 1876 to review the phase of the controversy concerning the relationship of state courts to the Federal Government. Claflin v. Houseman, 93 U.S. 130. The opinion of a unanimous court in that case was strongly buttressed by historic references and persuasive reasoning. It repudiated the assumption that federal laws can be considered by the states as though they were laws emanating from a foreign sovereign. Its teaching is that the Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It asserted that the obligation of states to enforce these federal laws is not lessened by reason of the form in which they are cast or the remedy which they provide. Id. at 389–91 (footnotes omitted). It would therefore seem to us that the Attorney General of Florida should have no difficulty in regarding subsection (3) of section 901.15 as ample authority for a municipal police officer to arrest without a warrant for a federal felony on a pickup notice emanating from a federal officer. As the Attorney General of Florida has already indicated to be the case for state pick-up notices in state felonies, so the federal pick-up notice can equally afford the arresting officer reasonable ground to believe that a federal felony has been committed and that the wanted person has committed it. Reliance on hearsay, and on reasonableness of belief or reasonable or probable cause, in making arrests is supported in the cases, such as United States v. Bianco, 189 F.2d 716 (3d Cir. 1951); United States v. Heitner, 149 F.2d 105 (2d Cir. 1945), cert. denied sub nom. Cryne v. United States, 326 U.S. 727, reh’g denied, 326 U.S. 809; Brinegar v. United States, 338 U.S. 160 (1949). To the extent that the FBI pick-up notice advises with particularity that a warrant of arrest has been placed in the hands of a federal marshal or deputy (who, it will be remembered, enjoys the corresponding powers of a state sheriff, 28 U.S.C. § 549, and is regarded as a peace officer, In re Neagle, 135 U.S. 1, 68–69 (1890)), or any other peace officer, it would also seem that the Attorney General of Florida could with propriety advise that subsection (4) of section 901.15, Florida Statutes, 1951, might also provide the basis for a Florida peace officer arresting the wanted person in reliance on the pick-up notice, whether the offense charged is a felony or misdemeanor (since the express wording of subsection (4) covers “any criminal offense”), without the Florida peace officer having the warrant in his possession. Rule 4(c)(1) of the Federal Rules of Criminal Procedure (1952) permits the federal criminal warrant to be executed “by a marshal or by some other officer authorized by law”; under Rule 4(c)(3), the officer need not have a warrant in his possession at the time of the arrest; and, under Rule 4(c)(2) and Rule 9(c)(1), the warrant may 155 Supplemental Opinions of the Office of Legal Counsel in Volume 1 be executed anywhere in the United States regardless of the district in which it issued. See, e.g., United States v. Donnelly, 179 F. 2d 227 (7th Cir. 1950) (sustaining an arrest in Missouri made by FBI agents and Missouri police as the result of a teletype message from Chicago after issuance of a commissioner’s warrant for the defendant’s arrest in Chicago), overruled on other grounds, United States v. Burke, 781 F.3d 1234 (7th Cir. 1985). In view of the doubt that may have been created by the portion of the Florida Attorney General’s opinion we have discussed, it would be helpful if reconsideration of that portion of the opinion could be had. While the problem, as it affects arrests for federal offenses, is one of interpretation and application of state law, it has nevertheless been made so by the action of Congress and the judicial extension of section 33 of the Judiciary Act of 1789 (18 U.S.C. § 3041). The correct application of the appropriate state law in the federal cases is therefore not only a matter of federal interest but may involve, in the legal sense, a federal question, cf. Dice v. Akron, Canton and Youngstown R.R. Co., 342 U.S. 359 (1952); Davis v. Wechsler, 263 U.S. 22 (1923). Since the oversight in interpretation ought to be susceptible of clarification by a further interpretation, it would be most unfortunate if, as is intimated in your memorandum, the matter would have to be rectified by state legislation. A request for, or enactment of, legislation on this point in one state might unnecessarily give rise to confusion and doubts in the other judicial districts of the United States where, so far as we know, no similar difficulty has been encountered under comparable state law. No doubt you have available suitable means of raising the question with Attorney General Ervin, in order to bring about the desired correction. We might add that this office has in the past enjoyed good relationships with his office on a number of matters, and we would be quite willing to do whatever we can to assist. J. LEE RANKIN Assistant Attorney General Executive Adjudications Division 156

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(Slip opinion) Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. They may request information from the Executive Branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings. May 1, 2017 LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT We understand that questions have been raised about the authority of individual members of Congress to conduct oversight of the Executive Branch. As briefly explained below, the constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. Accordingly, the Executive Branch’s longstanding policy has been to engage in the established process for accommodating congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight. The Constitution vests “[a]ll legislative Powers” in “a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. The Supreme Court has recognized that one of those legislative powers is the implicit authority of each house of Congress to gather information in aid of its legislative function. See McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Each house may exercise its authority directly—for example, by passing a resolution of inquiry seeking information from the Executive Branch. See 4 Deschler’s Precedents of the United States House of Representatives, ch. 15, § 2, at 30–50 1 Opinions of the Office of Legal Counsel in Volume 41 (1981) (describing the practice of resolutions of inquiry and providing examples); Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Procedure, S. Doc. No. 101-28, at 882 (1992) (“The Senate itself could investigate or hear witnesses as it has on rare occasions[.]”). In modern practice, however, each house typically conducts oversight “through delegations of authority to its committees, which act either through requests by the committee chairman, speaking on behalf of the committee, or through some other action by the committee itself.” Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op. O.L.C. 289, 289 (2001) (“Application of Privacy Act”); see also Alissa M. Dolan et al., Cong. Research Serv., RL30240, Congressional Oversight Manual 65 (Dec. 19, 2014). As the Supreme Court has explained, “[t]he theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose” and, in such circumstances, “committees and subcommittees, sometimes one Congressman, are endowed with the full power of the Congress to compel testimony.” Watkins v. United States, 354 U.S. 178, 200–01 (1957). By contrast, individual members, including ranking minority members, “generally do not act on behalf of congressional committees.” Application of Privacy Act, 25 Op. O.L.C. at 289; see also id. at 289–90 (concluding that “the Privacy Act’s congressional-disclosure exception does not generally apply to disclosures to ranking minority members,” because ranking minority members “are not authorized to make committee requests, act as the official recipient of information for a committee, or otherwise act on behalf of a committee”). Under existing congressional rules, those members have not been “endowed with the full power of the Congress” (Watkins, 354 U.S. at 201) to conduct oversight. See Congressional Oversight Manual at 65; see also Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (“[D]isclosure of information can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members; and only for investigations and congressional activities.”). Individual members who have not been authorized to conduct oversight are entitled to no more than “the voluntary cooperation of agency officials or private persons.” Congressional Oversight Manual at 65 (emphasis added). The foregoing reflects the fundamental distinction between constitutionally authorized oversight and other congressional requests for infor2 Authority of Individual Members of Congress to Conduct Oversight mation. When a committee, subcommittee, or chairman exercising delegated oversight authority asks for information from the Executive Branch, that request triggers the “implicit constitutional mandate to seek optimal accommodation . . . of the needs of the conflicting branches.” United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977); see also id. at 130–31 (describing the “[n]egotiation between the two branches” as “a dynamic process affirmatively furthering the constitutional scheme”). Such oversight requests are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings. See McGrain, 273 U.S. at 174; 2 U.S.C. §§ 192, 194; see also Standing Rules of the Senate, Rule XXVI(1), S. Doc. No. 113-18, at 31 (2013) (empowering all standing committees to issue subpoenas); Rules of the House of Representatives, 115th Cong., Rule XI, cl. 2(m)(1) (2017) (same). Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information “to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” Memorandum for the Heads of Executive Departments and Agencies from President Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982). But a letter or inquiry from a member or members of Congress not authorized to conduct oversight is not properly considered an “oversight” request. See Congressional Oversight Manual at 56 (“Individual Members, Members not on a committee of jurisdiction, or minority Members of a jurisdictional committee, may, like any person, request agency records. When they do, however, they are not acting pursuant to Congress’s constitutional authority to conduct oversight and investigations.”). It does not trigger any obligation to accommodate congressional needs and is not legally enforceable through a subpoena or contempt proceedings. Members who are not committee or subcommittee chairmen sometimes seek information about executive branch programs or activities, whether for legislation, constituent service, or other legitimate purposes (such as Senators’ role in providing advice and consent for presidential appointments) in the absence of delegated oversight authority. In those nonoversight contexts, the Executive Branch has historically exercised its discretion in determining whether and how to respond, following a general policy of providing only documents and information that are already public or would be available to the public through the Freedom of Information Act, 5 U.S.C. § 552. Whether it is appropriate to respond to 3 Opinions of the Office of Legal Counsel in Volume 41 requests from individual members will depend on the circumstances. In general, agencies have provided information only when doing so would not be overly burdensome and would not interfere with their ability to respond in a timely manner to duly authorized oversight requests. In many instances, such discretionary responses furnish the agency with an opportunity to correct misperceptions or inaccurate factual statements that are the basis for a request. CURTIS E. GANNON Acting Assistant Attorney General Office of Legal Counsel 4

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(Slip opinion) Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. They may request information from the Executive Branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings. May 1, 2017 LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT We understand that questions have been raised about the authority of individual members of Congress to conduct oversight of the Executive Branch. As briefly explained below, the constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee. Accordingly, the Executive Branch’s longstanding policy has been to engage in the established process for accommodating congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight. The Constitution vests “[a]ll legislative Powers” in “a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. The Supreme Court has recognized that one of those legislative powers is the implicit authority of each house of Congress to gather information in aid of its legislative function. See McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Each house may exercise its authority directly—for example, by passing a resolution of inquiry seeking information from the Executive Branch. See 4 Deschler’s Precedents of the United States House of Representatives, ch. 15, § 2, at 30–50 1 Opinions of the Office of Legal Counsel in Volume 41 (1981) (describing the practice of resolutions of inquiry and providing examples); Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Procedure, S. Doc. No. 101-28, at 882 (1992) (“The Senate itself could investigate or hear witnesses as it has on rare occasions[.]”). In modern practice, however, each house typically conducts oversight “through delegations of authority to its committees, which act either through requests by the committee chairman, speaking on behalf of the committee, or through some other action by the committee itself.” Application of Privacy Act Congressional-Disclosure Exception to Disclosures to Ranking Minority Members, 25 Op. O.L.C. 289, 289 (2001) (“Application of Privacy Act”); see also Alissa M. Dolan et al., Cong. Research Serv., RL30240, Congressional Oversight Manual 65 (Dec. 19, 2014). As the Supreme Court has explained, “[t]he theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose” and, in such circumstances, “committees and subcommittees, sometimes one Congressman, are endowed with the full power of the Congress to compel testimony.” Watkins v. United States, 354 U.S. 178, 200–01 (1957). By contrast, individual members, including ranking minority members, “generally do not act on behalf of congressional committees.” Application of Privacy Act, 25 Op. O.L.C. at 289; see also id. at 289–90 (concluding that “the Privacy Act’s congressional-disclosure exception does not generally apply to disclosures to ranking minority members,” because ranking minority members “are not authorized to make committee requests, act as the official recipient of information for a committee, or otherwise act on behalf of a committee”). Under existing congressional rules, those members have not been “endowed with the full power of the Congress” (Watkins, 354 U.S. at 201) to conduct oversight. See Congressional Oversight Manual at 65; see also Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir. 1978) (“[D]isclosure of information can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members; and only for investigations and congressional activities.”). Individual members who have not been authorized to conduct oversight are entitled to no more than “the voluntary cooperation of agency officials or private persons.” Congressional Oversight Manual at 65 (emphasis added). The foregoing reflects the fundamental distinction between constitutionally authorized oversight and other congressional requests for infor2 Authority of Individual Members of Congress to Conduct Oversight mation. When a committee, subcommittee, or chairman exercising delegated oversight authority asks for information from the Executive Branch, that request triggers the “implicit constitutional mandate to seek optimal accommodation . . . of the needs of the conflicting branches.” United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977); see also id. at 130–31 (describing the “[n]egotiation between the two branches” as “a dynamic process affirmatively furthering the constitutional scheme”). Such oversight requests are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings. See McGrain, 273 U.S. at 174; 2 U.S.C. §§ 192, 194; see also Standing Rules of the Senate, Rule XXVI(1), S. Doc. No. 113-18, at 31 (2013) (empowering all standing committees to issue subpoenas); Rules of the House of Representatives, 115th Cong., Rule XI, cl. 2(m)(1) (2017) (same). Upon receipt of a properly authorized oversight request, the Executive Branch’s longstanding policy has been to engage in the accommodation process by supplying the requested information “to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.” Memorandum for the Heads of Executive Departments and Agencies from President Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982). But a letter or inquiry from a member or members of Congress not authorized to conduct oversight is not properly considered an “oversight” request. See Congressional Oversight Manual at 56 (“Individual Members, Members not on a committee of jurisdiction, or minority Members of a jurisdictional committee, may, like any person, request agency records. When they do, however, they are not acting pursuant to Congress’s constitutional authority to conduct oversight and investigations.”). It does not trigger any obligation to accommodate congressional needs and is not legally enforceable through a subpoena or contempt proceedings. Members who are not committee or subcommittee chairmen sometimes seek information about executive branch programs or activities, whether for legislation, constituent service, or other legitimate purposes (such as Senators’ role in providing advice and consent for presidential appointments) in the absence of delegated oversight authority. In those nonoversight contexts, the Executive Branch has historically exercised its discretion in determining whether and how to respond, following a general policy of providing only documents and information that are already public or would be available to the public through the Freedom of Information Act, 5 U.S.C. § 552. Whether it is appropriate to respond to 3 Opinions of the Office of Legal Counsel in Volume 41 requests from individual members will depend on the circumstances. In general, agencies have provided information only when doing so would not be overly burdensome and would not interfere with their ability to respond in a timely manner to duly authorized oversight requests. In many instances, such discretionary responses furnish the agency with an opportunity to correct misperceptions or inaccurate factual statements that are the basis for a request. CURTIS E. GANNON Acting Assistant Attorney General Office of Legal Counsel 4

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(Slip Opinion) Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies The President may direct independent regulatory agencies to comply with the centralized regulatory review process prescribed by Executive Order 12866. October 8, 2019 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether the President may direct independent regulatory agencies to comply with the centralized regulatory review process of Executive Order 12866 of September 30, 1993, 3 C.F.R. 638 (1994) (“EO 12866”). EO 12866 requires all agencies to submit an annual regulatory plan and agenda to the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”). But it exempts “independent regulatory agencies,” as defined in 44 U.S.C. § 3502, from the rest of the order, which requires agencies to submit significant regulatory actions to OIRA for review. OMB has proposed that the President eliminate that exemption and require independent regulatory agencies to comply with all of EO 12866. 1 Article II of the Constitution vests “[t]he executive Power” in the President, who “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. By vesting the executive power in the President alone, the Constitution ensures that “a President chosen by the entire Nation oversee[s] the execution of the laws.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). The President can hardly ensure that the laws are faithfully executed “if he cannot oversee the faithfulness of the officers who execute them.” Id. at 484. The President’s constitutional authority therefore extends to the supervision of all agencies that execute federal law, including so-called “independent” agencies. Although the Supreme Court has held that Congress may insulate independent agencies to some degree from presidential supervision, the pro- 1 In preparing this opinion, we have solicited and considered the views of the Office of Management and Budget. See Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Neomi Rao, Administrator, OIRA, and Mark Paoletta, General Counsel, OMB (Mar. 7, 2018) (“OMB Letter”). 1 43 Op. O.L.C. __ (Oct. 8, 2019) posed executive action would not test any statutory limits. Congress has often provided that the heads of those agencies are removable only for particular causes, such as “inefficiency, neglect of duty, or malfeasance in office.” E.g., 15 U.S.C. § 41. But statutory restrictions on removal, standing alone, do not bar those agencies from complying with EO 12866; indeed, the terms of such good-cause restrictions presuppose that the President may supervise an agency head to ensure compliance with the duties of office and with principles of good governance. Other structural features associated with independent agencies, such as multi-member governance, independent litigating authority, or open-meeting requirements, likewise do not preclude those agencies from complying with EO 12866. We therefore conclude that the President may direct independent agencies to comply with EO 12866. I. Every President since Nixon has required systematic review of some rulemakings to ensure that federal regulations “achieve legislative goals effectively and efficiently” and do not “impose unnecessary burdens.” Exec. Order No. 12044, 3 C.F.R. 152 (1979); see Curtis W. Copeland, Cong. Research Serv., RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs 5–6 (June 9, 2009) (“Role of OIRA”) (describing Nixon, Ford, and Carter Administration programs); Harold Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 546–49 (1989) (same). In February 1981, President Reagan took what is widely viewed as the decisive step in establishing a “centralized mechanism for review of agency rulemakings,” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2277 (2001), by issuing Executive Order 12291, 3 C.F.R. 127 (1982) (“EO 12291”). EO 12291 required covered agencies to follow general policies in issuing new regulations, “to the extent permitted by law,” including that “[r]egulatory action shall not be undertaken unless the potential benefits to society . . . outweigh the potential costs.” Id. § 2(b). The order further required agencies to submit to OMB an analysis of the regulatory impact of any “major” rule, including its potential costs and benefits. Id. § 3(a)–(c). In 1985, President Reagan also ordered agencies to participate in an annual regulatory planning process. Exec. Order No. 12498, 3 C.F.R. 323 (1986). 2 Extending Regulatory Review to Independent Regulatory Agencies In September 1993, President Clinton issued EO 12866 “to reform and make more efficient the regulatory process” and “to enhance planning and coordination with respect to both new and existing regulations.” EO 12866, pmbl. Like its predecessor, EO 12866 directs covered agencies to follow certain general principles, including cost-benefit principles, when engaging in regulatory action, “unless a statute requires another regulatory approach.” Id. § 1(a); see id. § 1(b)(6) (agencies should “adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs”). Section 4 directs agencies to participate, “to the extent permitted by law,” in an annual regulatory planning process. Each agency, including “independent regulatory agencies,” must submit to OIRA “an agenda of all regulations under development or review” and an annual plan “of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form.” Id. § 4(b), (c). OIRA circulates each agency’s plan to other affected agencies; if OIRA “believes that a planned regulatory action of an agency may be inconsistent with the President’s priorities or the principles set forth in” EO 12866, it must notify the agency and the President’s regulatory advisers. Id. § 4(c)(3), (5). Section 6 of EO 12866 requires each agency, other than “independent regulatory agencies,” to submit to OIRA, before publication, a draft of any proposed “significant regulatory action,” together with an “assessment of the potential costs and benefits” of the proposed action and its legal basis. Id. § 6(a)(3)(B)(ii).2 For any proposed regulatory action that is expected to be “economically significant,” the agency must submit a more detailed analysis of the potential costs and benefits and of reasonably feasible potential alternatives. Id. § 6(a)(3)(C). Those requirements do not apply if an agency is “obligated by law to act more quickly,” although an agency must schedule its rulemakings to permit OIRA review “to the extent practicable.” Id. § 6(a)(3)(D). OIRA must complete its review within specified deadlines, id. § 6(b)(2), and an agency may not publish a 2 The order defines a “regulatory action” as “any substantive action by an agency . . . that promulgates or is expected to lead to the promulgation of a final rule or regulation .” EO 12866, § 3(e). A “rule” or “regulation,” in turn, is defined as any “agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency,” subject to certain exceptions. Id. § 3(d). 3 43 Op. O.L.C. __ (Oct. 8, 2019) proposed or final rule pending OIRA review, “[e]xcept to the extent required by law,” id. § 8. During the review process, OIRA may circulate the regulatory proposals to interested agencies and components of the Executive Office of the President, such as the National Economic Council. See Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1854–59 (2013) (“OIRA Myths and Realities”). If OIRA believes that an agency should reconsider a proposed action, OIRA may return the action with “a written explanation for [the] return setting forth the pertinent provision of [EO 12866] on which OIRA is relying,” and the agency may respond in writing if the agency disagrees. EO 12866, § 6(b)(3). In practice, such “return letters” are rare. OIRA appears to have issued only seven during the period between 1994 and 2000, and only twentyeight since July 2001—periods in which OIRA reviewed thousands of proposed agency actions. See OIRA, OMB, Executive Office of the President, OIRA Return Letters, www.reginfo.gov/public/do/eoReturnLetters (last visited Oct. 8, 2019); Copeland, Role of OIRA at 19. More commonly, OIRA, the agency, and any other interested agencies discuss suggestions in an iterative revision process, with any disagreements percolating up through interagency committees of increasingly senior officials. Section 7 of EO 12866 provides for the President, or the Vice President acting at the request of the President, to resolve any remaining “disagreements or conflicts between or among agency heads or between OMB and any agency,” “[t]o the extent permitted by law.” OIRA is a repository of valuable rulemaking expertise, and its views carry significant weight. See Sunstein, OIRA Myths and Realities, 126 Harv. L. Rev. at 1854–55. A wide range of commentators has recognized that OIRA’s regulatory review process, which draws on the expertise of the entire government, has come to provide an “essential mechanism to ensure unity and coherence in execution of the law.” OMB Letter at 4. 3 3 See, e.g., Letter for Ron Johnson, Chairman, and Thomas R. Carper, Ranking Member, Senate Committee on Homeland Security and Governmental Affairs, from Thomas Susman, Director, Governmental Affairs Office, American Bar Association (“ABA”), Re: Support for S. 1067, the “Independent Agency Regulatory Analysis Act of 2015” at 2–3 (July 23, 2015) (centralized review ensures that “regulatory policy . . . is responsive to the interests of the public as a whole”); Sunstein, OIRA Myths and Realities, 126 Harv. L. Rev. at 1850 (centralized review allows “extremely important and valuable” interagency coordination); Sally Katzen, OIRA at Thirty: Reflections and Recommendations, 63 4 Extending Regulatory Review to Independent Regulatory Agencies An agency may not publish or proceed with a proposed action (unless otherwise required to do so by law) without addressing the concerns expressed by OIRA or others during the review process, or elevating any disagreements to the President. See EO 12866, § 8. But EO 12866 does not authorize OIRA “to ‘approve’ or ‘disapprove’ a draft rule.” Copeland, Role of OIRA at 14. Section 9 provides that “[n]othing in this order shall be construed as displacing the agencies’ authorities or responsibilities, as authorized by law.” See also EO 12866, pmbl. (providing that the order “reaffirm[s] the primacy of Federal agencies in the regulatory decisionmaking process” and that regulatory review “shall be conducted so as to meet applicable statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies”). Therefore, the OIRA review process, while mandatory, is also a consultative one, improving regulatory outcomes while preserving an agency’s statutory discretion. In adopting EO 12291, the Reagan Administration considered applying OIRA’s regulatory review process to “independent regulatory agenc[ies],” as defined in 44 U.S.C. § 3502. At the time, this Office approved the legality of such a direction. See Memorandum for David Stockman, Director, OMB, from Larry L. Simms, Acting Assistant Attorney General, Office of Legal Counsel, Re: Proposed Executive Order on Federal Regulation at 7 (Feb. 12, 1981) (“Simms Memorandum”), reprinted in Role of OMB in Regulation: Hearing Before the Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Commerce, 97th Cong. 152, 158 (1981) (“Role of OMB Hearing”). Even if Congress sought to limit “[p]residential supervision” of independent agencies “on matters of substantive policy,” we advised that subjecting them to the proposed regulatory review process would be consistent with their independent Admin. L. Rev. 103, 110 (2011) (centralized review results in “better coordinated and coherent regulatory actions, and ultimately better decisionmaking”); American Bar Association Section of Administrative Law and Regulatory Practice, Twenty-First Century Governance: Improving the Federal Administrative Process: A Report for the President-Elect of the United States, 52 Admin. L. Rev. 1099, 1104–05 (2000) (centralized review fosters “efficient, coordinated, yet reasonably open administration” and “promote[s] good government”); Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075, 1081 (1986) (centralized review “encourages policy coordination, greater political accountability, and more balanced regulatory decisions”). 5 43 Op. O.L.C. __ (Oct. 8, 2019) status, because the order would preserve the agencies’ “substantive discretion to decide particular . . . rulemaking matters.” Simms Memorandum at 10, 11. Ultimately, however, the Reagan Administration determined, for “policy reasons,” not to include independent agencies, even though the Administration believed the President had the constitutional power to do so. Role of OMB Hearing at 93–94 (quoting C. Boyden Gray, Counsel to the Vice President); see also Peter L. Strauss & Cass Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 Admin. L. Rev. 181, 202 (1986) (same). In EO 12866, President Clinton preserved the exemption for “independent regulatory agencies” from the centralized regulatory review process. EO 12866, § 3(b).4 He did, however, require independent agencies to submit to OIRA annual regulatory agendas and plans, which summarize expected regulatory actions during the upcoming fiscal year. Id. § 4(b), (c). Sally Katzen, who was then the OIRA Administrator, later explained that the President’s legal advisers believed it would have been lawful to apply the entirety of EO 12866 to independent agencies, but the Administration ultimately chose not to do so. Sally Katzen, OIRA at Thirty: Reflections and Recommendations, 63 Admin. L. Rev. 103, 109 (2011).5 EO 12866 thus continues to exempt independent regulatory agencies from the centralized regulatory review process. In the statutory definition incorporated into EO 12866, Congress has identified nineteen such independent agencies and included a catch-all clause for “any other similar agency designated by statute”: 4 EO 12291 and EO 12866 both cite 44 U.S.C. § 3502(10) for the definition of excluded independent regulatory agencies. EO 12291, § 1(d); EO 12866, §§ 3(b), 4(c). In 1995, Congress moved the relevant definition to 44 U.S.C. § 3502(5). See Paperwork Reduction Act of 1995, Pub. L. No. 104-13, sec. 2, 109 Stat. 163, 165. 5 President George W. Bush amended EO 12866 twice, principally to reduce the Vice President’s role, to instruct agencies to identify the specific market failure that any new regulations seek to remedy, and to expand OIRA’s review of agency guidance documents. See Exec. Order No. 13258, 3 C.F.R. 204 (2003); Exec. Order No. 13422, 3 C.F.R. 191 (2008). President Obama revoked those modifications, see Exec. Order No. 13497, 3 C.F.R. 218 (2010), although OIRA continued its practice, which predated President Bush’s orders, of reviewing agency guidance documents under EO 12866. See Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, from Peter R. Orszag, Director, OMB, M-09-13, Re: Guidance for Regulatory Review (Mar. 4, 2009). 6 Extending Regulatory Review to Independent Regulatory Agencies [T]he Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, [the] Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission. 44 U.S.C. § 3502(5). 6 Consistent with the catch-all clause, Congress has deemed the U.S. International Trade Commission “an independent regulatory agency for purposes of chapter 35 of Title 44,” which includes the provision quoted above. 19 U.S.C. § 1330(f ). Congress has also identified other agencies as “independent” in their organic statutes. See, e.g., 12 U.S.C. § 1752a(a) (National Credit Union Administration); id. § 2241 (Farm Credit Administration). We understand that some of those agencies regard themselves as independent regulatory agencies under section 3502(5). II. Our review of the President’s authority to direct independent regulatory agencies requires consideration of the scope of his authority to supervise the Executive Branch. Before addressing independent agencies, we first examine the President’s constitutional authority to direct the departments 6 The statute expressly provides that the Federal Election Commission and the Government Accountability Office shall not be considered “independent regulatory agencies” even if otherwise covered by the catch-all clause. 44 U.S.C. § 3502(1)(A), (B). In 1995, Congress abolished the Interstate Commerce Commission (“ICC”) and provided that references to the ICC, like the one in 44 U.S.C. § 3502(5), shall be “deemed to refer” to its successor, the Surface Transportation Board. ICC Termination Act of 1995, Pub. L. No. 104-88, § 205, 109 Stat. 803, 943. 7 43 Op. O.L.C. __ (Oct. 8, 2019) and agencies that are currently subject to centralized regulatory review. The source of the President’s authority to supervise those departments and agencies bears directly upon his authority to direct independent agencies, which are also within the Executive Branch. A. The “Constitution divided the ‘powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.’” Free Enter. Fund, 561 U.S. at 483 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)). Article II vests all of “[t]he executive Power” in the President and charges him alone with the responsibility to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. In carrying out that charge, the President must depend on “the assistance of subordinates,” Myers v. United States, 272 U.S. 52, 117 (1926), and Article II includes specific provisions illustrating the President’s supervisory authority. Thus, the President may “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,” U.S. Const. art. II, § 2, cl. 1, and he appoints all “Officers of the United States” with the advice and consent of the Senate, subject to Congress’s power to vest the authority to appoint inferior officers “in the President alone, in the Courts of Law, or in the Heads of Departments,” id. art. II, § 2, cl. 2. The Supreme Court has repeatedly explained that “Article II confers on the President ‘the general administrative control of those executing the laws.’” Free Enter. Fund, 561 U.S. at 492 (quoting Myers, 272 U.S. at 164). As the Chief Executive, the President “may properly supervise and guide” subordinate officers in “their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.” Myers, 272 U.S. at 135. According to Alexander Hamilton, executive officers “ought to be considered as the assistants or deputies of the chief magistrate; and, on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence.” The Federalist No. 72, at 487 (Jacob E. Cooke ed., 1961). In providing for presidential control over the Executive Branch, the Constitution ensures not only that executive officers remain accountable 8 Extending Regulatory Review to Independent Regulatory Agencies to the President, but also that the President remains accountable to the Nation. See Printz v. United States, 521 U.S. 898, 922 (1997) (“The insistence of the Framers upon unity in the Federal Executive—to ensure both vigor and accountability—is well known.”); In re Aiken County, 645 F.3d 428, 439 (D.C. Cir. 2011) (Kavanaugh, J., concurring) (“‘What Article II did make emphatically clear from start to finish was that the president would be personally responsible for his branch.’” (quoting Akhil Reed Amar, America’s Constitution: A Biography 197 (2005)).7 Those principles are not empty formalities. The purpose “of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government, but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting); see also Bond v. United States, 564 U.S. 211, 222 (2011) (“The structural principles secured by the separation of powers protect the individual as well.”). The President’s supervision of the Executive Branch guarantees the people’s right to select, and hold accountable, the one person responsible for the execution of federal law. B. In 1981, this Office reviewed the proposed EO 12291 and confirmed that the President may require agencies to participate in the OMB review process. See Proposed Executive Order Entitled “Federal Regulation,” 5 Op. O.L.C. 59, 60 (1981) (“EO 12291 Opinion”). We explained that the President has the “distinctive constitutional role” of supervising the execution of federal law, and he could not take care that the entire “mass of legislation” is executed faithfully, in a consistent and uniform manner, absent authority to guide and direct his subordinates. Id. at 60–61 (internal quotation marks omitted); see also Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, See also 1 Annals of Cong. 462 (1789) (Rep. James Madison) (“It is evidently the intention of the Constitution, that the first Magistrate should be responsible for the executive department; so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country.”); 1 Collected Works of James Wilson 730 (Kermit L. Hall & Mark David Hall eds., 2007) (“In the United States, our first executive magistrate is not obnubilated behind the mysterious obscurity of counsellors. . . . He is the dignified, but accountable magistrate of a free and great people.”); 2 id. at 873 (“[I]n the executive department, the principle of unity is adopted.”). 7 9 43 Op. O.L.C. __ (Oct. 8, 2019) 84 Colum. L. Rev. 573, 642 (1984) (“[T]he execution of not a single law but many inevitably raises questions of priority, conflict, and coordination . . . . Attending to these conflicts seems an inevitable aspect of a chief executive’s function.”). That is also true when agencies execute federal law by promulgating rules. See, e.g., Sierra Club v. Costle, 657 F.2d 298, 405–06 (D.C. Cir. 1981) (recognizing that the President must be allowed to “control and supervise” rulemakings). Thus, under his constitutional authority to supervise the execution of federal law, the President may establish both general principles for agencies to follow in rulemaking, such as cost-benefit principles, see EO 12866, § 1(b), and administrative mechanisms to effectuate those principles, such as centralized regulatory review, see id. § 6. The President may also require any agency to submit in writing an analysis of proposed agency action under the Opinions Clause, which authorizes the President to “require [an] Opinion, in writing,” from the principal officers in the Executive Branch on “any Subject” relating to “the duties of their . . . offices.” U.S. Const. art. II, § 2, cl. 1; see also EO 12291 Opinion, 5 Op. O.L.C. at 62. The Opinions Clause ensures that the President may obtain the advice he needs to order the affairs of the Executive Branch, including the counsel necessary to direct the heads of agencies in the exercise of their statutory functions. The Opinions Clause therefore sets him up as “Chief Administrator of the Executive Bureaucracy” and confirms that “[e]xecutive departments are accountable to the Chief Executive.” Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647, 652, 658 (1996).8 In the view of then-Professor Elena Kagan, the Opinions Clause “supports OMB review of at least executive agency (and perhaps independent agency) actions, so long as the ultimate decisionmaking power resides in the hands of agency officials; the [regulatory] review system then operates as a channel through which the President can obtain information from and offer advice to the relevant adminisSee also Amar, Some Opinions, 82 Va. L. Rev. at 661 (“[T]he Opinion Clause clearly exemplifies the President’s supervisory power over the executive departments.”); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Law, 104 Yale L. J. 541, 584 (1994) (“[T]he Opinions Clause empowers the President to obtain information in writing on government matters precisely so he will be able to issue binding orders to his subordinates.”); Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 62 (“The duty to report is meaningful only if the President retains a measure of substantive authority over the doings of the agency.”). 8 10 Extending Regulatory Review to Independent Regulatory Agencies trators.” Kagan, Presidential Administration, 114 Harv. L. Rev. at 2325. By requiring his subordinates to provide their opinions on proposed regulatory actions, the President may receive the advice he needs to “properly supervise and guide the[] construction of the statutes” under which his subordinates act, Myers, 272 U.S. at 135, and thereby “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. C. While the President must supervise the faithful execution of the laws, Congress has the authority to define the structure of the Executive Branch and the responsibilities of its officers. In our published 1981 opinion, we advised that “the President’s exercise of supervisory powers must conform to legislation enacted by Congress,” and “may not, as a general proposition, require or permit agencies to transgress boundaries set by Congress.” EO 12291 Opinion, 5 Op. O.L.C. at 61. 9 Yet it is equally true that Congress may not “impede the President’s ability to perform his constitutional duty” under the Take Care Clause. Morrison, 487 U.S. at 691; see also Statement on Signing a Bill Concerning the Protection of 9 Our 1981 opinion recognized that “[i]n certain circumstances, statutes could invade or intrude impermissibly upon the President’s ‘inherent’ powers,” but concluded that “that issue [did] not arise” because Congress had not forbidden presidential direction under EO 12291. EO 12291 Opinion, 5 Op. O.L.C. at 61 n.3. In a later memorandum to OMB, this Office considered the scope of congressional authority to exempt independent agencies from regulatory review. See Memorandum for Preeta D. Bansal, General Counsel and Senior Policy Adviser, Office of Management and Budget, from David Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Regulatory Review and Coordination for Independent Agencies at 11–17 (Sept. 3, 2009). We advised that “we certainly cannot rule out the possibility that precluding Presidential supervision in the context of a particular statutory regime might transgress whatever minimum quantum of supervisory authority is required under Morrison,” id. at 16–17, but we declined to “resolve definitively the difficult and unsettled constitutional and statutory questions raised” by such a proposal, id. at 18. The Barron Memorandum cautioned that directing independent agencies under EO 12866 might be “legally controversial” and advised against any “definitive conclusion” absent a concrete examination of a particular agency’s governing statutes. Id. at 1. As discussed below in Part III, we do not believe that any of the features generally associated with agency independence would restrict a presidential direction for independent agencies to comply with EO 12866. But under the terms of EO 12866 itself, if an agency (be it independent or otherwise) has a specific statutory provision that conflicts with the general directives under EO 12866, then that specific statutory provision will control. See EO 12866, § 9; infra Part IV. 11 43 Op. O.L.C. __ (Oct. 8, 2019) Marine Mammals (Oct. 9, 1981), 1 Pub. Papers of Pres. Ronald Reagan 914, 914 (1981) (noting that a statute exempting certain rulemakings from EO 12291 “should not be read to infringe in any way on the President’s constitutional responsibility to supervise the Secretary of Commerce and the Secretary of the Interior in their execution of the law”). EO 12866, however, conflicts with no statute. On the contrary, the order directs that the regulatory review process “shall be conducted so as to meet applicable statutory requirements.” EO 12866, pmbl. An agency must follow the order’s overarching principles “unless a statute requires another regulatory approach,” id. § 1(a), and several of its operative provisions contain similar caveats. For instance, the agency need not analyze and quantify potential economic costs where Congress has prohibited such consideration, id. § 6(a)(3)(C), and the agency must measure the rule against the President’s priorities only “to the extent permitted by law,” id. § 6(a)(3)(B)(ii). EO 12866 also preserves the statutory discretion vested in the agency. In our 1981 opinion, we concluded that EO 12291 did “not purport wholly to displace, but only to guide and limit, discretion which Congress has allocated to a particular subordinate official.” EO 12291 Opinion, 5 Op. O.L.C. at 61. So too, EO 12866 channels an agency’s discretion by requiring the agency to follow the President’s regulatory principles and to submit the proposed rule for OIRA’s review. However, nothing in the order “shall be construed as displacing the agencies’ authority or responsibilities, as authorized by law.” EO 12866, § 9. The order allows OIRA to return a proposed regulatory action to an agency for reconsideration, id. § 6(b)(3), but the order does not authorize OIRA to veto a proposed action. OIRA exercises only a “power of consultation”—a significant power, to be sure, but not the “authority to reject an agency’s ultimate judgment.” EO 12291 Opinion, 5 Op. O.L.C. at 64. Thus, subject to the guidance set by the order, “the authority to make the ultimate decision rests where Congress has placed it—in the relevant agency.” Strauss & Sunstein, Role of the President, 38 Admin. L. Rev. at 191. EO 12866 similarly confirms that it is the President, rather than OMB, who exercises the final authority to direct agency action, with section 7 contemplating presidential resolution of any unresolved disputes. This is consistent with the President’s constitutional supervisory authority under Article II, which may not be delegated. See Centralizing Border Control 12 Extending Regulatory Review to Independent Regulatory Agencies Policy Under the Supervision of the Attorney General, 26 Op. O.L.C. 22, 24–25 (2002); cf. Free Enter. Fund, 561 U.S. at 496–97 (“[T]he President cannot delegate ultimate responsibility or the active obligation to supervise that goes with it, because Article II makes a single President responsible for the actions of the Executive Branch.” (internal quotation marks omitted)). At the same time, the President “may tap advisers within the White House” (and within agencies) to assist him in implementing presidential policies within the Executive Branch. Centralizing Border Control Policy, 26 Op. O.L.C. at 26. EO 12866 designates OIRA to coordinate and implement regulatory policy, while ensuring that agencies retain the authority provided by the laws enacted by Congress, under the ultimate supervision of the President. III. The President’s constitutional authority to direct traditional executive agencies under EO 12866 also extends to the “independent regulatory agenc[ies]” identified in 44 U.S.C. § 3502(5). All of those agencies remain part of the Executive Branch and subject to his superintendence. Although Congress has sought to limit the President’s authority to remove the heads of some of those agencies, such limits on removal do not preclude the President from requiring the agencies to comply with EO 12866. Nor do the other hallmarks of agency “independence,” such as multimember governance, independent litigating authority, or open-meeting requirements. The President has long required independent regulatory agencies to submit an annual regulatory plan and agenda under section 4 of EO 12866. Congress has not otherwise sought to shield such agencies, as a general matter, from complying with the order’s other requirements, and we see no persuasive grounds to infer such an unstated limitation on the President’s supervisory authority. A. We begin again with the text of the Constitution. The “executive Power” vested in the President and his constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 1, cl. 1; id. § 3, do not vanish merely because the subordinate charged with executing the law may enjoy tenure or other protections. The “Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” 13 43 Op. O.L.C. __ (Oct. 8, 2019) Free Enter. Fund, 561 U.S. at 499. Even when an officer heads an independent agency, the President’s obligation to “take Care that the Laws be faithfully executed” still requires that he “oversee the faithfulness of the officers who execute them.” Id. at 484; see also id. at 492 (quoting James Madison’s observation in the First Congress that “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws”); Morrison, 487 U.S. at 696 (recognizing that the President must have “sufficient control” over all officers who execute the law). The Supreme Court has confirmed that the President must have some constitutional authority to remove all those executive officers whom he appoints, including the heads of independent agencies. See Free Enter. Fund, 561 U.S. at 493 (“As we explained in Myers, the President . . . must have some ‘power of removing those for whom he can not continue to be responsible.’”). It is true that the Court has upheld some statutory limits on those removal powers. See Wiener v. United States, 357 U.S. 349, 353 (1958); Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935). But even the authority to remove an official for statutorily identified causes “presupposes that the officer or body that has the removal power must supervise the subordinate officer at least to the extent needed to determine whether ‘cause’ for removal exists.” Applicability of Executive Order 12674 to Personnel of Regional Fishery Management Councils, 17 Op. O.L.C. 150, 156 n.19 (1993); see also Morrison, 487 U.S. at 692–93 (stating that the power to terminate an independent counsel for good cause allowed “ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act”). The President could not fulfill this responsibility without the power to review the work of independent agencies and, to some degree, to direct the faithful performance of their duties. The Opinions Clause, likewise, supports presidential oversight of the “principal Officer in each of the executive Departments,” including the independent agencies. U.S. Const. art. II, § 2, cl. 1. In Free Enterprise Fund, the Court had little trouble concluding that the Securities and Exchange Commission (“SEC”)—whose members were assumed to have tenure protection—“constitutes a ‘Departmen[t]’ for purposes of the Appointments Clause.” 561 U.S. at 487, 511. In a footnote, the Court “express[ed] no view on” whether the Commission should be considered an “executive Departmen[t]” under the Opinions Clause. Id. at 511 n.11. 14 Extending Regulatory Review to Independent Regulatory Agencies But the Court previously declared that the “word ‘department’” in the two clauses “clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other.” United States v. Germaine, 99 U.S. (9 Otto) 508, 511 (1879); see also Freytag v. Comm’r, 501 U.S. 868, 918 (1991) (Scalia, J., concurring in part and concurring in the judgment) (finding it “quite likely that the ‘Departments’ referred to in the Opinions Clause . . . are the same as the ‘Departments’ in the Appointments Clause”).10 The President therefore may “require” the heads of independent regulatory agencies to give an opinion in writing on “any Subject relating to the duties of their respective Offices,” U.S. Const. art. II, § 2, cl. 1, including opinions on the regulatory impact of significant actions, as required by section 6 of EO 12866. As discussed above, the Opinions Clause, consistent with the President’s supervisory authority, further implies that the President may direct the head of an independent regulatory agency to consult with the President and his advisers prior to exercising the agency’s discretion in the rulemaking process. These principles led us to conclude in 1981 that President Reagan could have applied EO 12291 to independent agencies. See Simms Memorandum at 10–12; supra Part I. We acknowledged that Congress often “intends the independent agencies to be free of Presidential supervision on 10 Indeed, that commonsense conclusion also follows from the Court’s recognition that “[t]he object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816). During the Washington Administration, the Justices of the Supreme Court embraced that same understanding, advising that th e Opinions Clause “seems to have been purposely as well as expressly limited to executive Departments,” thereby implicitly excluding the judicial department. Letter from Justices of the Supreme Court to George Washington (Aug. 8, 1793), reprinted in 6 The Documentary History of the Supreme Court of the United States, 1787–1800, at 755 (Maeva Marcus ed., 1998). With only three “great departments” to choose from, it is apparent that independent agencies that execute federal law are part of the “executive Departments” and subject to the Opinions Clause. We note that the ratification history of the Twenty-Fifth Amendment may suggest a different reading for the “principal officers of the executive departments” mentioned there, but the 1967 ratification of that amendment does not illuminate the original meaning of Article II. See Freytag, 501 U.S. at 886–87 (citing pre-ratification evidence that “the principal officers” under the Twenty-Fifth Amendment were limited to members of the Cabinet); id. at 917 (Scalia, J., concurring in part and concurring in the judgment) (distinguishing “the principal officers” in the Twenty-Fifth Amendment from the similar language in the Opinions Clause). 15 43 Op. O.L.C. __ (Oct. 8, 2019) matters of substantive policy,” but we viewed EO 12291 as consistent with that legislative intent because the order preserved the agencies’ “substantive discretion to decide particular . . . rulemaking matters.” Simms Memorandum at 10, 11. Considering costs and benefits, where permitted by statute, and submitting proposed agency actions to OIRA would not “displace the agencies’ ultimate discretion to decide what rule best fulfills their statutory responsibilities.” Id. at 12. We reached a similar conclusion in 1995, when we advised the White House that EO 12866 could be applied to the Social Security Administration (“SSA”), even though Congress had recently given the Commissioner a six-year term in office and statutory protection from removal. See 42 U.S.C. § 902(a)(3); see also 42 U.S.C. § 904(b)(1)(A) (requiring that the SSA’s budget “be submitted by the President to the Congress without revision”). Our file memorandum recording this informal advice noted that the removal restriction, if valid, might limit the extent to which the President could “order[] the [SSA Commissioner] to take a particular substantive policy position” in a proposed action submitted for review under section 6 of EO 12866. Memorandum for the Files, Re: OMB Review of Regulations of the Social Security Administration at 5 (Aug. 7, 1995). But the President could nonetheless “tell the SSA to submit the proposed rule to OIRA, because that [directive] . . . would not displace the SSA’s ultimate discretion to promulgate regulations it considers appropriate.” Id. at 7. We noted that permitting at least that degree of supervision “may in fact be constitutionally compelled” under Article II. Id. Consistent with this Office’s advice, EO 12866 continued to apply to the SSA, which we understand has participated in the regulatory review process in the years since. That history confirms that the presidential supervision under EO 12866 is consistent with statutory tenure protection. See also supra p. 6 (noting that President Clinton’s legal advisers concluded that EO 12866 could be applied to independent regulatory agencies). Thus, in the past, we have advised that both EO 12291 and EO 12866 could have been applied to independent agencies. Such advice is consistent with our long-standing view that the President “may exercise a certain amount of managerial authority” over independent agencies and “under penalty of removal ‘may exact reasonable efficiency and absolute integrity’” from independent agencies. Applicability of Executive Privilege to Independent Regulatory Agencies, 1 Op. O.L.C. Supp. 170, 172, 190 (Nov. 5, 1957) (quoting Robert E. Cushman, The Independent Regu16 Extending Regulatory Review to Independent Regulatory Agencies latory Commissions 464 (1941)).11 The President may “‘force an independent regulatory commission to comply with executive orders of general application unless Congress clearly indicates that such orders should not apply.’” Id. at 190 (quoting Cushman, Independent Regulatory Commissions at 465). The President’s supervisory authority extends to all officers charged with executing the laws of the United States, and we will not lightly presume that Congress has sought to displace it. B. EO 12866 does not seek to displace any statutory mandate. To the contrary, the order itself is limited so that it requires agencies to follow its principles and procedures “unless a statute requires another regulatory approach,” EO 12866, § 1(a), and only “to the extent permitted by law,” id. § 6(a)(3)(B)(ii). To address how the order applies to independent agencies, we thus must consider whether the common statutory hallmarks of independence themselves would conflict with the kind of presidential supervision required by EO 12866’s regulatory review process. In doing so, we are guided by the principle that “a clear statement of congressional intent” is ordinarily required before a statute will be read in a manner that raises separation of powers concerns. Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act, 21 Op. O.L.C. 109, 112 (1997); see also, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (“We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (“When Congress decides purposefully to enact legislation restricting or regulating presiden11 In 1977, our Office also concluded that the President could issue an executive order that would require independent agencies to “perform [their quasi-legislative and judicial] functions efficiently and without undue delay” and “take into account the economic impact of their decisions,” although we suggested that the President “probab ly cannot dictate the precise effect the agencies are to give to that impact,” in view of what we called then, in a nod to Humphrey’s Executor, “the agencies’ quasi-legislative autonomy.” Memorandum for Simon Lazarus, Associate Director, Domestic Council, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: President’s Authority to Impose Procedural Reforms on the Independent Regulatory Agencies at 2, 3 (July 22, 1977). In view of subsequent decisions of the Supreme Court, as well as opinions of this Office, we do not read Humphrey’s Executor so broadly. See infra pp. 20–23. 17 43 Op. O.L.C. __ (Oct. 8, 2019) tial action, it must make its intent clear.”); Applicability of Executive Privilege to Independent Regulatory Agencies, 1 Op. O.L.C. Supp. at 190 (stating that Congress must “‘clearly indicate[]’” that executive orders of general applicability do not apply to independent agencies if it seeks to impose such a limitation). We think it clear that any effort by Congress to insulate an executive officer from presidential supervision would raise such separation of powers concerns. See, e.g., Free Enter. Fund, 561 U.S. at 499; Morrison, 487 U.S. at 691. That principle has particular force here because, on occasion, Congress has expressly sought to preclude OIRA review of some rulemakings. See supra Part II.C (citing President Reagan’s 1981 signing statement regarding a bill that precluded the application of EO 12291); see also Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. C, tit. II, 125 Stat. 786, 894 (2011) (appropriating funds to OMB provided that “none of the funds . . . may be used for the purpose of reviewing any agricultural marketing orders or any . . . regulations under the provisions of the Agricultural Marketing Agreement Act of 1937”); Copeland, Role of OIRA at 25 (discussing these examples). Absent such a clear statement, we will not presume that Congress sought to limit the President’s supervisory authority. C. We proceed to examine the distinctive statutory features commonly thought to define agency independence. Chief among those is tenure protection, which is often described as “[t]he distinguishing characteristic” that makes an agency “independent.” Simms Memorandum at 8. Many independent agencies are headed by officials covered by such a provision. See, e.g., 15 U.S.C. § 41 (members of the Federal Trade Commission “may be removed by the President for inefficiency, neglect of duty, or malfeasance in office”); id. § 2053(a) (members of the Consumer Product Safety Commission “may be removed by the President for neglect of duty or malfeasance in office but for no other cause”); 42 U.S.C. § 7171(b)(1) (members of the Federal Energy Regulatory Commission “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office”). 12 But the statutory limits on the President’s 12 Several independent regulatory agencies are headed by officers who do not enjoy any express protection against removal without cause: the Commodity Futures Trading 18 Extending Regulatory Review to Independent Regulatory Agencies authority to remove the head of an agency do not preclude the President from requiring independent agencies to comply with EO 12866, much less do so clearly. Requiring an agency to comply with EO 12866 would not conflict with those statutes, which do not preclude, and indeed presume, ongoing presidential supervision of the agency. The Supreme Court’s decision in Humphrey’s Executor serves as the foundation for any argument to the contrary. In Humphrey’s Executor, the Court addressed whether Congress could prohibit the removal without cause of members of the Federal Trade Commission (“FTC”). In contrast with a “purely executive” officer, such as the postmaster whose job was at issue in Myers, Humphrey’s Executor concluded that the FTC exercised what it described as “quasi-legislative” and “quasi-judicial” functions, 295 U.S. at 629, and the Constitution did not grant the President an “illimitable power of removal” over such officers. Id.; see also Wiener, 357 U.S. at 353–54 (interpreting a statute to provide tenure protection to members of the War Claims Commission, an agency with adjudicative functions). In the course of upholding the lawfulness of such a restriction, the Court in Humphrey’s Executor spoke in sweeping terms about the congressional intent underlying the FTC Act: Commission, the Federal Communications Commission, the Office of Financial Research, and the SEC. But cf. Free Enter. Fund, 561 U.S. at 487 (assuming that SEC members can be removed only for cause); SEC v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988) (same). The President may remove the Comptroller of the Currency only “upon reasons to be communicated by him to the Senate,” 12 U.S.C. § 2, but no statute purports to limit the permissible reasons for removal. And no statute expressly limits the President’s authority to remove the three appointed (i.e., non-ex-officio) members of the Federal Deposit Insurance Corporation. In Wiener, the Supreme Court held that the President could remove members of the War Claims Commission only for cause even though Congress concededly “said nothing about it.” 357 U.S. at 356. But we have questioned that conclusion and advised that “the executive branch should resist any further application” of Wiener outside the context of purely adjudicatory bodies. The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 170 (1996) (“Separation of Powers”); see also Holdover and Removal of Members of Amtrak’s Reform Board, 27 Op. O.L.C. 163, 166 (2003) (“Because the removal power is a principal means by which the President carries out the executive power and takes care that the laws be faithfully executed, we do not believe that any restrictions on the President’s removal power should be inferred.”). 19 43 Op. O.L.C. __ (Oct. 8, 2019) [T]he language of the [FTC Act], the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the Congressional intent to create a body of experts who shall gain experience by length of service—a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government. To the accomplishment of these purposes, it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office. 295 U.S. at 625–26 (emphasis omitted); see also id. at 628 (stating that the FTC’s duties “are performed without executive leave and, in the contemplation of the statute, must be free from executive control”). If this view were “taken at face value, the President’s constitutional power to supervise” the “body of experts” at the independent agencies would be “limited to his power of appointment,” Simms Memorandum at 9, and he could no more supervise their “quasi-judicial” and “quasi-legislative” work than he could the judgments of his appointees to the Article III courts. This view would not only preclude the President from requiring agencies to submit proposed regulations to OIRA, but it would also bar any presidential directives at all, including the well-established requirement that independent agencies submit an annual regulatory plan and agenda under section 4 of EO 12866. We cannot read Humphrey’s Executor so broadly. To begin with, the quoted passage is dictum. As then-Professor Kagan explained, the “question actually decided in the case was much narrower” than its reasoning, and “the Court did not hold that Congress could cut off agencies in all respects from the President.” Kagan, Presidential Administration, 114 Harv. L. Rev. at 2325 n.311. The Court held only that Congress had validly limited the President’s grounds for removing the Commissioner to “inefficiency, neglect of duty, or malfeasance in office,” 295 U.S. at 623, and that the President had violated the statute by removing him without citing any of those grounds. 20 Extending Regulatory Review to Independent Regulatory Agencies Subsequent decisions confirm that independent agencies execute federal law and are part of the Executive Branch—not a “headless ‘fourth branch’ of the Government.” President’s Committee on Administrative Management, Administrative Management in the Government of the United States 36 (Jan. 1937); see, e.g., City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (“Agencies make rules . . . and conduct adjudications,” but those activities “are exercises of—indeed under our constitutional structure they must be exercises of—the ‘executive Power.’”); Free Enter. Fund, 561 U.S. at 510–11 (holding that the SEC is an executive “Department[]” under the Appointments Clause); Morrison, 487 U.S. at 690 n.28 (“[I]t is hard to dispute that the powers of the FTC at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.”); INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (recognizing that agency rulemaking is an executive function, not a legislative function); Buckley v. Valeo, 424 U.S. 1, 125–28 (1976) (per curiam) (holding that members of the Federal Election Commission are executive officers, not officers of Congress); Separation of Powers, 20 Op. O.L.C. at 168 n.116 (“We do not think that the ‘independent’ regulatory agencies could be viewed today as within the legislative or judicial branches.” (citing Mistretta v. United States, 488 U.S. 361, 387 n.14 (1989))); Applicability of Executive Privilege to Independent Regulatory Agencies, 1 Op. O.L.C. Supp. at 171–72 (“[Humphrey’s Executor] cannot be invoked as a complete charter of independence of the regulatory commissions from executive control.”). While Humphrey’s Executor spoke of the “quasi-legislative” and “quasi-judicial” functions of independent agencies, 295 U.S. at 628–29, there can now be no doubt that independent agencies are part of the Executive Branch. In addition, the dictum of Humphrey’s Executor conflicts not only with subsequent decisions, but also with the very statute at issue in that case. The Court’s claim that the FTC “shall be independent of executive authority, except in its selection,” 295 U.S. at 625, is demonstrably incorrect. Congress gave the President authority to remove FTC Commissioners for “inefficiency, neglect of duty, or malfeasance in office,” id. at 619, terms that presuppose presidential supervision of the actions of those whom he may remove. Thus, the President’s authority over the officers of the FTC continues well beyond the time of selection. The same is true of any independent agency whose head or heads are removable by the President for cause. 21 43 Op. O.L.C. __ (Oct. 8, 2019) Humphrey’s Executor also rested on an “outmoded view” of independent agencies as apolitical experts. Simms Memorandum at 10. “[I]ndependent agencies . . . have to make a slew of non-scientific legal and policy judgments—such as how to interpret governing statutes, how to exercise policy discretion under those statutes, and whom to charge for violations of the law.” Aiken County, 645 F.3d at 442 n.2 (Kavanaugh, J., concurring). Indeed, “[i]t is now recognized that rulemaking may legitimately reflect political influences of certain kinds from a number of sources, including Congress and the affected public.” Simms Memorandum at 10. It thus makes little sense to presume that Congress intended to divorce such agencies entirely from presidential supervision. In the decades since Humphrey’s Executor, Congress itself has ensured that independent agencies are not “independent of executive authority.” 295 U.S. at 625. Under the Paperwork Reduction Act, Congress has required independent agencies to submit proposed information requests to OIRA for review. 44 U.S.C. §§ 3502(1), 3507(a), (f ). Under the Congressional Review Act, independent agencies must submit “major rules” to Congress before the rules “can take effect.” 5 U.S.C. §§ 801(a)(1)(A), 804(1). Consistent with EO 12866, the statute requires OIRA to review these regulations and determine whether they are “major” under the statute. Id. § 804(2). Congress has also required independent agencies to comply with the Regulatory Flexibility Act, see id. § 601(1), and the Data Quality Act, see Pub. L. No. 106-554, div. C, § 515, 114 Stat. 2763, 2763A-153 to -154 (2000)—the latter of which charged OMB with issuing guidelines to all agencies to ensure data quality and integrity. Accordingly, over the past 80 years, Congress has repeatedly confirmed that independent agencies are part of the Executive Branch and subject to “executive authority.” For these reasons, we do not believe that the vision of independence suggested by Humphrey’s Executor accurately describes the current state of the law. At the same time, we acknowledge that the Court has suggested on occasion that removal restrictions provide an agency head with some measure of independence from the President. See Free Enter. Fund, 561 U.S. at 502 (suggesting that “simple disagreement with . . . policies or priorities” may not constitute cause for removal); Fox Television Stations, 556 U.S. at 523 (recognizing that “independent agencies” have been “sheltered . . . from the President”); Mistretta, 488 U.S. at 410–11 (describing for-cause limitations on removal as “specifically crafted to 22 Extending Regulatory Review to Independent Regulatory Agencies prevent the President from exercising ‘coercive influence’ over independent agencies”). 13 And even some independent regulatory agencies without express tenure protection for their heads, such as the SEC, have historically enjoyed a broader degree of political independence than other executive agencies. See Free Enter. Fund, 561 U.S. at 547 (Breyer, J., dissenting) (noting the “political environment” protecting the independence of some agencies). We believe, however, that those decisions are consistent with EO 12866, which “does not purport wholly to displace, but only to guide and limit, discretion which Congress has allocated to a particular subordinate official.” EO 12291 Opinion, 5 Op. O.L.C. at 61. EO 12866 does not supplant an independent agency’s discretion any more than it does for a “non-independent” agency. To the contrary, the order “reaffirm[s] the primacy of Federal agencies in the regulatory decision-making process” and directs that regulatory review “be conducted so as to meet applicable statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies.” EO 12866, pmbl. Regardless of whether an agency is “independent,” the President’s authority to supervise all those who execute federal law must permit him, at the least, to require that agencies consult with his senior advisers to ensure that the agencies adhere to principles of sound governance and law. We therefore conclude that a for-cause limitation on removal does not preclude the President 13 Other decisions of the Supreme Court have suggested a broader concept of what constitutes “cause” for removal under particular statutes. See Morrison, 487 U.S. at 692 (describing the power to remove for cause as conferring “ample authority to assure” that a subordinate “is competently performing his or her statutory responsibilities”); Bowsher, 478 U.S. at 729 (stating that the terms in a for-cause removal provision “are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will”). Our Office too has favored the broader understanding, in large part to avoid constitutional concerns. See, e.g., Separation of Powers, 20 Op. O.L.C. at 169 n.117 (“[A] generous reading of the President’s . . . power to remove an inferior officer may be essential to the constitutionality of removal restrictions.”); Memorandum for Roger Pauley, Director, Office of Legislation, Criminal Division, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: S. 101, Lobbying Disclosure Act at 1 (July 17, 1995) (legislation proposing “for cause” removal protection for an executive officer “might well be . . . unconstitutional” if it “were interpreted to bar the President from discharging the [officer] for failure to carry out the Administration’s policies”). We have no occasion here to consider whether the refusal of an agency head to comply with a presidential directive under EO 12866 would constitute cause for removal. 23 43 Op. O.L.C. __ (Oct. 8, 2019) from applying the OIRA review process under EO 12866 to an independent agency. D. Congress has adopted other statutory mechanisms to provide independent regulatory agencies with a degree of insulation within the Executive Branch. Those mechanisms include fixed terms in office for the agency head, distinct from the President’s term; composition as a multi-member bipartisan board with staggered terms of office; the authority to submit testimony or proposed budgets to Congress without OMB review; and independent litigating authority. See Marshall J. Breger & Gary J. Edles, Independent Agencies in the United States 93–95, 163–175 (2015); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 789–808 (2013); David E. Lewis & Jennifer L. Selin, Sourcebook of United States Executive Agencies 88–106 (2d ed. Oct. 2018). Those features are not universally shared by all the independent regulatory agencies in 44 U.S.C. § 3502(5), nor are they unique to those agencies. But they are common enough that we consider here whether any would conflict with the centralized review process of EO 12866. We conclude that they do not. 1. Multi-member, Bipartisan Agency Governance. The statutes structuring some independent regulatory agencies as multi-member boards, with staggered terms and bipartisan membership, do not limit the President’s authority to require those agencies to comply with EO 12866. See, e.g., 7 U.S.C. § 2(a)(2)(A) (establishing the Commodity Futures Trading Commission as “an independent agency of the United States Government” composed of “five Commissioners,” “[n]ot more than three of [whom] shall be members of the same political party,” each serving “a term of five years” expiring at staggered one-year intervals); 15 U.S.C. § 78d(a) (similar provisions for the SEC). Requiring an independent regulatory agency to submit its proposed rules to OIRA for review is consistent with those structural features. The SEC, for example, will continue to be headed by a five-member, bipartisan board as required by statute, whether or not the President directs the Commission to comply with EO 12866. One might argue that Congress chose to delegate rulemaking authority to an agency headed by a multi-member, bipartisan board “to minimize 24 Extending Regulatory Review to Independent Regulatory Agencies presidential interference.” EO 12291 Opinion, 5 O.L.C. Op. at 61. But we would not overstate the degree of insulation. In most instances, the President retains the statutory authority to select the board’s chair, ensuring that he may put his stamp on the agency’s policymaking agenda. 14 In addition, EO 12866 preserves an agency’s ultimate discretion and thus respects Congress’s judgment to entrust particular rulemakings to a commission rather than a traditional executive agency. Subject to appropriate consultation, the commission still makes the final decision under EO 12866. We see no persuasive grounds to infer from the multi-member structure of an independent regulatory agency any additional limits on presidential supervision that would bar the application of EO 12866 to the agency. 2. Independent Litigating Authority. For similar reasons, EO 12866 would not conflict with the authority of an agency to litigate independently of the Department of Justice when the agency has been given such authority. See, e.g., 12 U.S.C. § 5564 (Bureau of Consumer Financial Protection (“CFPB”)). Such authority does not imply that there are any statutory limits upon presidential supervision of agency rulemaking. EO 12866’s centralized review process applies only to regulatory actions that promulgate or are expected to lead to the promulgation of “a final rule or regulation.” EO 12866, § 3(e); supra note 2. Thus, the order does not cover agency litigation decisions or decisions to seek judicial enforce- See, e.g., 29 U.S.C. § 153(a) (“The President shall designate one member [of the National Labor Relations Board] to serve as Chairman of the Board.”); 42 U.S.C. § 5841(a)(1) (“The President shall designate one member of the [Nuclear Regulatory] Commission as Chairman thereof to serve as such during the pleasure of the President. ”); 42 U.S.C. § 7171(b)(1) (“One of the members [of the Federal Energy Regulatory Commission] shall be designated by the President as Chairman.”); 46 U.S.C. § 301(c)(1) (“The President shall designate one of the Commissioners [of the Federal Maritime Commission] as Chairman.”); 47 U.S.C. § 154(a) (“The Federal Communications Commission . . . shall be composed of five commissioners appointed by the President, by and with the advice and consent of the Senate, one of whom the President shall designate as chairman.”); Reorg. Plan No. 10 of 1950, § 3, 64 Stat. 1265, 1266 (effective May 24, 1950) (“The functions of the [Securities and Exchange] Commission with respect to choosing a Chairman from among the commissioners composing the Commission are hereby transferred to the President.”); Reorg. Plan No. 8 of 1950, § 3, 64 Stat. 1264, 1265 (effective May 24, 1950) (“The functions of the [Federal Trade] Commission with respect to choosing a Chairman from among the membership of the Commission are hereby transferred to the President.”). 14 25 43 Op. O.L.C. __ (Oct. 8, 2019) ment, and agencies with independent litigating authority will exercise that authority without OMB or OIRA review. In fact, Congress has given Cabinet departments independent litigating authority in limited circumstances, see, e.g., 29 U.S.C. § 216(e)(3)(B) (Department of Labor), yet those agencies have long been subject to EO 12866. 3. OMB Bypass Authority. Congress has given some independent regulatory agencies the authority to bypass OMB by submitting reports, budgets, or testimony directly to Congress without prior OMB review. For the CFPB, for example, Congress provided that [n]o officer or agency of the United States shall have any authority to require the Director or any other officer of the Bureau to submit legislative recommendations, or testimony or comments on legislation, to any officer or agency of the United States for approval, comments, or review prior to the submission of such recommendations, testimony, or comments to the Congress[.] 12 U.S.C. § 5492(c)(4); see also, e.g., 12 U.S.C. § 250 (similar provision covering the “the Securities and Exchange Commission, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, . . . the Director of the Federal Housing Finance Agency, [and] the National Credit Union Administration”); 49 U.S.C. § 1303(d) (Surface Transportation Board). Although these statutes do not mention OMB by name, OMB has long operated the executive branch clearance processes that these statutes allow agencies to bypass. See OMB Circular No. A-11, Preparation, Submission, and Execution of the Budget (2017); OMB Circular No. A-19, Legislative Coordination and Clearance (1979). In other instances, Congress has effectively prohibited advance OMB review by directing that an independent regulatory agency’s budget requests, prepared testimony, or legislative proposals be submitted concurrently to Congress whenever they are submitted to OMB. See, e.g., 7 U.S.C. § 2(a)(10)(A) (Commodity Futures Trading Commission); 15 U.S.C. § 2076(k)(1) (Consumer Products Safety Commission); 42 U.S.C. § 7171( j) (Federal Energy Regulatory Commission). The Executive Branch has long objected to efforts to minimize presidential supervision of the agencies in testifying and submitting proposed legislation to Congress, treating those restrictions as an infringement of the President’s Article II authority, including his Article II, Section 3 26 Extending Regulatory Review to Independent Regulatory Agencies authority to recommend to Congress “such Measures as he shall judge necessary and expedient.” See, e.g., Constitutionality of the Direct Reporting Requirement in Section 802(e)(1) of the Implementing Recommendations of the 9/11 Commission Act of 2007, 32 Op. O.L.C. 27, 28 (2008) (“For decades, the Executive Branch has consistently objected to direct reporting requirements . . . on the ground that such requirements infringe upon the President’s constitutional supervisory authority over Executive Branch subordinates and information.”); Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress, 8 Op. O.L.C. 30, 34, 36 (1984) (“[T]he Special Counsel has proposed legislation authorizing him to submit directly to Congress legislative recommendations that he ‘deems necessary to further enhance the ability of the office to perform its duties.’”; “The Special Counsel’s proposal would severely impair the President’s ability to perform his constitutional obligation to ‘recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.’”); see also Separation of Powers, 20 Op. O.L.C. at 174–75; Common Legislative Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248, 254– 55 (1989); Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 639–42 (1982). But even if these bypass statutes are constitutional, none of them speaks to OMB or OIRA review of an agency’s proposed rulemakings; all of them apply only to budget requests, to proposed legislation and testimony, or to some combination thereof. Congress’s decision to enact such bypass statutes is further evidence that independent regulatory agencies are not, merely by virtue of tenure protection, entirely free from presidential supervision (contra the dictum in Humphrey’s Executor). Congress has expressly sought to limit OMB’s authority to coordinate the interagency clearance process in various respects, but has not imposed any statutory restrictions on OMB’s authority to conduct regulatory review. This only underscores that Congress left the latter untouched. We must presume that Congress “says what it means and means what it says” in these statutes. Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016). By their plain terms, these statutes do not purport to forbid requiring independent regulatory agencies to participate in the EO 12866 centralized review process. Congress has also required two agencies to submit certain financial operating plans and forecasts to OMB, but then provided in a “rule of con27 43 Op. O.L.C. __ (Oct. 8, 2019) struction” that those requirements “may not be construed as implying” that OMB has “any jurisdiction or oversight over the affairs or operations” of the agencies. 12 U.S.C. § 1827(c)(3) (Federal Deposit Insurance Corporation); see also id. § 5497(a)(4)(E) (CFPB). By its own terms, that rule of construction simply precludes the inference that the agencies’ submission of required documents otherwise implies OMB supervision. The rule of construction, like OMB bypass statutes generally, does not speak to or limit the President’s authority under Article II to require an agency to participate in centralized regulatory review of the agency’s proposed rulemakings. 4. Sunshine Act. Congress has required multi-member agencies to comply with the Government in the Sunshine Act, 5 U.S.C. § 552b, but the requirements of that law do not preclude application of EO 12866. The Sunshine Act applies to any “agency . . . headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate.” Id. § 552b(a)(1). The Act requires that “every portion of every meeting” of such an agency “be open to public observation,” subject to various exceptions, id. § 552b(b), and it defines a “meeting” as “the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business,” id. § 552b(a)(2). The public is entitled to at least one week’s advance notice of any such meeting. Id. § 552b(e)(1). The Act’s requirements do not apply to formal rulemakings, see id. § 552b(c)(10); Time, Inc. v. U.S. Postal Serv., 667 F.2d 329, 334 (2d Cir. 1981), but there is no comparable exception for informal rulemakings—the kind of rulemakings to which EO 12866 applies, see EO 12866, § 3(d)(1). Thus, the Act requires covered agencies, such as the SEC and FTC, to meet in public whenever a quorum of agency members convenes to engage in noticeand-comment rulemaking. The Sunshine Act’s requirements would not preclude compliance with EO 12866, because most discussions between a covered agency and OIRA would likely not qualify as a “meeting.” As the Supreme Court explained in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984), Congress was cognizant in drafting the Sunshine Act that “the administrative process cannot be conducted entirely in the public eye.” Id. at 469. The Act is therefore limited to “meetings” as defined above. See id. at 471 28 Extending Regulatory Review to Independent Regulatory Agencies (holding that a “meeting” must involve deliberations “sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating members to form reasonably firm positions” (internal quotation marks omitted)). Many of the consultations that occur in the EO 12866 process likely would not meet that standard. As the Court explained, “‘informal background discussions that clarify issues and expose varying views’ are a necessary part of an agency’s work,” and the Act was not intended to “prevent such discussions.” Id. at 469–70 (brackets omitted). A “meeting” also must involve “at least the number of individual agency members required to take action on behalf of the agency.” 5 U.S.C. § 552b(a)(2). An exchange of views between OIRA and the staff of an agency (or its Chairman) during the EO 12866 process would not qualify. Thus, the Sunshine Act would be consistent with applying EO 12866 to independent agencies. * * * * * We thus conclude that none of the common statutory hallmarks of independent agencies would stand in the way of applying EO 12866 to such agencies. Nothing in the centralized regulatory review process is inconsistent with their traditional “independence.” EO 12866 expressly preserves the substantive rulemaking discretion afforded to independent agencies, just as it preserves the substantive discretion enjoyed by nonindependent agencies. It does so, however, within the framework of presidential supervision and OIRA administrative expertise that has promoted good administrative governance since the earliest days of the Reagan Administration. Finally, we note that our conclusion is consistent with those of the Administrative Conference of the United States and the American Bar Association, both of which have long endorsed the President’s authority to extend EO 12866 to independent agencies. 15 A 2017 report by the House 15 See, e.g., Section of Administrative Law and Regulatory Practice, ABA, Improving the Administrative State: A Report to the President-Elect of the United States at 10 (2016); Letter for Ron Johnson, Chairman, and Thomas R. Carper, Ranking Member, Senate Committee on Homeland Security and Governmental Affairs, from Thomas M. Susman, Director, Governmental Affairs Office, ABA, Re: Support for S. 1067, the “Independent Agency Regulatory Analysis Act of 2015” (July 23, 2015); House of Delegates, ABA, Recommendation: Presidential Review of Rulemaking (Aug. 7–8, 29 43 Op. O.L.C. __ (Oct. 8, 2019) Committee on Oversight and Government Reform similarly opined that the President “has always had the authority to extend OIRA review to independent agencies.” OIRA Insight, Reform, and Accountability Act, H.R. Rep. No. 115-19, at 7 (2017). As a matter of practice, OMB advises that “[a] number of ‘independent’ agencies, including the SEC, CFTC, the FCC, and others have consulted with OIRA regarding best practices for regulatory reform and cost-benefit analysis,” OMB Letter at 7, and as noted above, the SSA has formally complied with the regulatory review process. We do not suggest, of course, that separation of powers questions may be decided by popular vote, but the views of congressional committees, administrative law experts, and practitioners confirm our view that extending EO 12866 to independent regulatory agencies would not compromise the appropriate and lawful performance of their statutory responsibilities. IV. For the foregoing reasons, we conclude that the President may require independent regulatory agencies to comply with the centralized regulatory review process prescribed by EO 12866. There is nothing in the statutory composition of independent agencies or in their other generally shared attributes that would preclude the full application of EO 12866 to them. We have not reviewed the organic statute of each independent agency and therefore do not rule out the possibility that a particular statutory provision of a particular agency—if constitutionally valid and sufficiently 1990), https://www.americanbar.org/content/dam/aba/directories/policy/1990_am_302. authcheckdam.pdf; Recommendations of the Administrative Conference Regarding Administrative Practice and Procedure, 54 Fed. Reg. 5207, 5208 & n.2 (Feb. 2, 1989); Strauss & Sunstein, Role of the President, 38 Admin. L. Rev. at 206–07 (reprinting recommendation of the Administrative Law Section of the ABA). Former officials from independent agencies have offered the same view. See Letter for Ronald H. Johnson, Chairman, Senate Committee on Homeland Security and Governmental Affairs, from Nancy Nord, Former Commissioner, Consumer Product Safety Commission, et al., at 1 (June 17, 2015) (letter from eight former members of independent agencies). A number of academics have done the same. See also, e.g., Datla & Revesz, Deconstructing Independent Agencies, 98 Cornell L. Rev. at 837; Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost Benefit Analysis, 150 U. Pa. L. Rev. 1489, 1535 (2002); Kagan, Presidential Administration, 114 Harv. L. Rev. at 2324–25 & n.311; Strauss & Sunstein, Role of the President, 38 Admin. L. Rev. at 200. 30 Extending Regulatory Review to Independent Regulatory Agencies clear—may conflict with certain requirements of EO 12866. EO 12866 expressly contemplates, however, that it would yield to such a provision, and such a potential conflict would therefore pose no barrier to the general extension of EO 12866. Should an independent agency identify a specific statutory provision that it believes requires modification of the processes and procedures of EO 12866, we would be happy to examine the matter. Please let us know if we may be of further assistance in that or in any other regard. STEVEN A. ENGEL Assistant Attorney General Office of Legal Counsel 31

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Presidential Appearance as a Character Witness Apparently there is no precedent for a President to appear as a character witness in a civil, criminal, or other kind of legal proceeding. July 7, 1938 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Reference is made to your note of July 6, 1938, referring to me a letter from Mr. Frederic William Wile in which he requests to be advised whether there is a precedent for a President to appear as a character witness in any civil, criminal, or other kind of legal proceeding. The famous Aaron Burr trial seems to have established the precedent that the President of the United States is not obliged to honor subpoenas. In that case President Jefferson declined to appear under a subpoena issued by Justice Marshall. Apparently President Monroe, upon the advice of Attorney General Wirt, also declined to honor a subpoena. See Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive 64 & n.31 (1937). There is also some indication that President John Quincy Adams took the view that he was not obliged to answer a subpoena. See 7 Memoirs of John Quincy Adams 35 (Charles Francis Adams ed., 1875). A search of the records of this Department has failed to disclose any case wherein a President has appeared as a witness. The Law Librarian at the Library of Congress has advised that he has been unable to find a record of any case wherein a President has appeared as a witness. The Law Librarian also advised that he had consulted Messrs. William Tyler Page and John Fitzpatrick, who informed him that it is their belief that no President of the United States has ever appeared in any case as a witness. Former President Theodore Roosevelt appeared as a character witness in the Riggs Bank case here in Washington, but that case was tried after he had left the White House. He also appeared in a libel suit filed by him against George A. Newett, publisher of The Iron Ore, Ishpeming, Michigan, but that was in 1913, after he had left the White House. Apparently there is no precedent for a President to appear as a character witness. NEWMAN A. TOWNSEND Acting Assistant Solicitor General 78

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Constitutionality of Federal Government Efforts in Contracting With Women-Owned Businesses This statement presents the Justice Department’s views on the federal government’s efforts to contract with women-owned businesses in a manner consistent with the Constitution and federal statutes. Because the Justice Department’s position on federal contracting programs that employ gender preferences is based on constitutional and legal standards that are not specific to the program addressed by the recently published Small Business Administration rule, the statement focuses on the legal standards that govern the Department’s approach to such programs generally. January 16, 2008 TESTIMONY BEFORE THE HOUSE COMMITTEE ON SMALL BUSINESS Thank you Chairwoman Velazquez, Ranking Member Chabot, and Members of the Committee for the opportunity to appear here today to discuss the Justice Department’s views on the federal government’s efforts to contract with womenowned businesses in a manner consistent with the Constitution and federal statutes. One of the most recent developments in this area is the Small Business `Administration’s (“SBA’s”) publication of a proposed rule implementing the WomenOwned Small Business (“WOSB”) Federal Contracting Program authorized by Public Law 106-554. That particular rule is addressed in SBA Administrator Preston’s testimony before the Committee. For that reason, and because the Justice Department’s position on federal contracting programs that employ gender preferences is based on constitutional and legal standards that are not specific to the program addressed by the recently published SBA rule, I will focus on the legal standards that govern the Department’s approach to such programs generally. As Administrator Preston testified and the Committee is aware, the federal government has taken a number of measures to increase the participation of women-owned small businesses in federal government contracting. Most of these efforts assist women-owned small businesses by improving their ability to compete with other small businesses for federal contracts, not by shielding them from such competition through gender-based restrictions on bidding opportunities. That said, one form of agency assistance that is authorized, though not required, by federal statute is the reservation, or set-aside, of certain contracts for competition only by “small business concerns owned and controlled by women.” 15 U.S.C. § 637(m)(2). Federal agencies that employ such set-asides in their contracting programs must engage in gender discrimination among potential contract recipients because the set-asides require the contracting agencies to exclude otherwise qualified businesses from competing for certain contracts based solely on the degree to which those businesses are owned or controlled by men. To be constitutional, federal programs that discriminate on the basis of gender in awarding government contracts must pass muster under the equal protection 23 Opinions of the Office of Legal Counsel in Volume 32 component of the Due Process Clause of the Fifth Amendment. See United States v. Virginia, 518 U.S. 515 (1996) (“VMI”); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). The Justice Department’s position on gender-based contracting programs necessarily reflects this constitutional requirement because the Department, like the rest of the Executive Branch, must construe and implement federal laws in a constitutional manner. The Department’s position on gender-based contracting programs also reflects Supreme Court opinions and other federal cases applying the Constitution’s equal protection requirements to such programs, because these are the cases that courts will consider in deciding whether specific agency WOSB programs are constitutional. The Department’s general position on these matters serves as the basis for the Department’s administration of its own programs, as well as for any guidance the Department may provide to other agencies. The level of scrutiny that a government contracting program must satisfy in order to comply with equal protection depends on the type of preference at issue. Preferences, such as veterans’ preferences, that do not depend on a recipient’s race or gender are subject to rational basis scrutiny, which means courts will generally uphold them as constitutional if the government can demonstrate a rational basis for adopting them. Preferences that are based on a recipient’s race or gender are subject to higher levels of constitutional scrutiny. Race-based preferences must satisfy “strict scrutiny,” which means that the government must prove that the specific preference at issue is “narrowly tailored” to serve a “compelling government interest.” Gender-based preferences must satisfy “intermediate” or “heightened” scrutiny, which the Supreme Court has identified as considerably more demanding than rational basis scrutiny, but distinct from the strict scrutiny the Court applies to government preferences based on race. In VMI, the 1996 case in which the Supreme Court considered the constitutionality of a government program that discriminated on the basis of gender, the Court emphasized that its decision to apply intermediate scrutiny did not excuse the government from establishing an “exceedingly persuasive” justification for the program. Noting the “strong presumption that gender classifications are invalid,” Justice Ginsburg’s opinion for the Court explained that “skeptical scrutiny of official action denying rights or opportunities based on” a person’s gender is necessary to ensure that government programs, no matter how well-intentioned, do not violate the hard-fought line of equal protection precedents rejecting the notion that an individual’s opportunity to “participate in and contribute to” a particular field should depend on that individual’s gender. Accordingly, the Court held that to justify a gender-based preference program under intermediate scrutiny, the government bears the burden of showing, through evidence that is “genuine” and “not hypothesized or invented post hoc,” “at least that the [program] serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” 518 U.S. at 532–33. 24 Federal Government Efforts in Contracting With Women-Owned Businesses It bears mention that at least one court—the Seventh Circuit in an opinion by Judge Posner—has questioned whether there is any meaningful practical difference between the exacting intermediate scrutiny standard the Supreme Court articulated in VMI and the strict scrutiny the Court applies to racial preferences. See Builders Ass’n of Greater Chi. v. Cnty. of Cook, 256 F.3d 642, 644 (7th Cir. 2001). Whether or not this opinion raises a valid practical question, the Justice Department, like the majority of federal courts, adheres to the Supreme Court’s determination in VMI that there is a distinction between intermediate and strict scrutiny. Federal courts applying this distinction to government programs for womenowned businesses have construed the “important governmental interest” aspect of intermediate scrutiny to mean that some degree of discrimination must have occurred in the economic sphere in which the program is administered in order for the government to justify the program’s constitutionality. The cases upholding gender-based preference programs under this standard emphasize the importance of the government’s proof of such discrimination. Similarly, the cases invalidating programs as unconstitutional under this standard emphasize the government’s failure to present evidence of discrimination in the economic sphere to which the preference program is directed. Although strict scrutiny also requires the government to prove discrimination in justifying racial preference programs, the federal courts’ focus on the government’s ability to prove discrimination in gender cases does not erase the distinction between strict and intermediate scrutiny. The Eleventh Circuit has explained this distinction as follows: “While there is a difference between the evidentiary foundation necessary to support a race-conscious affirmative action program and the evidentiary foundation necessary to support a gender preference, that difference is one of degree, not of kind. In both circumstances, the test of the program is the adequacy of evidence of discrimination, but in the gender context less evidence is required.” Eng’g Contractors Ass’n v. Metro. Dade Cnty., 122 F.3d 895, 901 (11th Cir. 1997). Determining exactly how much evidence of discrimination is needed to support a gender-based, as opposed to race-based, preference program is, in the Eleventh Circuit’s words, a “difficulty” that all government entities face in considering whether gender-based preference programs are constitutional. Federal cases upholding such programs do not generally distinguish between the evidence required to satisfy strict versus intermediate scrutiny in a way that readily allows the government to determine that a particular study or other evidence of discrimination clearly goes far enough to justify a program under intermediate scrutiny, but does not go so far as to satisfy unnecessarily the requirements of strict scrutiny. What is clear from the cases is that mere findings of disparity or underrepresentation are generally not sufficient to establish the constitutionality of a gender-based preference program, and that courts are likely to strike down such 25 Opinions of the Office of Legal Counsel in Volume 32 programs if the government cannot show genuine and non-hypothetical evidence of discrimination in the economic sphere in which the program will operate. The Justice Department’s position on gender-based set-aside programs reflects these cases and the simple lesson they offer federal entities considering such programs: if those entities, which must establish and administer gender-based setasides in a constitutional manner, wish to maximize the chances that a particular program will survive constitutional scrutiny, it is both legally appropriate and legally prudent to require evidence of discrimination before implementing the program. This position accords with the requirement that the federal government administer all federal programs, including those benefiting women, in a constitutional manner, consistent with Supreme Court and other federal judicial precedents evaluating gender-based preference programs under intermediate scrutiny. ELIZABETH P. PAPEZ Deputy Assistant Attorney General Office of Legal Counsel 26

Write a legal research memo on the following topic.

Legality of Certain Nonmilitary Actions Against Iran Under the International Em ergency Econom ic Powers A ct (IEEPA ), the President may impose an em bargo on all imports from Iran and, subject to certain conditions, a prohibition on exports of food and medicine to Iran. The IE E PA also authorizes him to order the closure o f Iranian business offices located in the United States. W hile the President may have some statutory and constitutional pow er to control third party transactions with Iran, particularly those designed to circum vent the impact of sanctions imposed by the United States directly on Iran, his authority to impose a general secondary boycott against those trading with Iran may be limited. It is thus not clear whether, under existing laws and treaties, airlines and shipping companies that serve Iran may be denied landing rights and fuel purchases in the United States. Presidential action to block international satellite communications from Iran to the United States is clearly authorized only insofar as it is part of a more general ban on transactions with Iran and its nationals. The President’s authority to impose a ban on travel by American citizens to Iran may have a more limited applicability to journalists. See United Slates v. O ’Brien, 39 1 U.S.C. 367 (1968). M oreover, restrictions on travel to Iran would have no immediate effect on persons already in that country. How ever, the IE E PA could be used to impose a broad ban on financial transactions between Americans overseas and Iran or its nationals. The IE E PA would authorize a broad prohibition against all transactions between A m eri­ cans relating to Iran, as long as Iran has even an indirect interest in the transaction; however, it is not possible under the IE E PA to reach “purely dom estic” transactions. April 16, 1980 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This responds on an urgent basis to your request for our opinion regarding the legality of ten possible nonmilitary actions against Iran, most or all of which would rely on the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701, et seq. (Supp. I 1977). We will respond to the proposals in the order in which they have been presented. 1. Embargo All Imports From Iran This action is clearly legal under the IEEPA. The statute explicitly allows the prohibition of transfers in which foreign nationals, as well as 223 foreign governments, have an interest.1 The pertinent legislative history envisions total trade embargoes, reflecting well-established practice under the IEEPA’s predecessor statute, the Trading With the Enemy Act of 1917. See H.R. Rep. No. 459, 95th Cong., 1st Sess. (1977) (hereafter “ 1977 House Report”); S. Rep. No. 466, 95th Cong., 1st Sess. (1977).2 2. Prohibit Food and Medicine Exports to Iran The IEEPA also authorizes this action, although it sounds a note of caution. Under § 1702(b) of the Act, (b) The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly— * * * * * (2) donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such donations (A) would seriously impair his ability to deal with any national emergency declared under section 1701 of this title, (B) are in response to coercion against the proposed recipient or donor, or (C) would endanger Armed Forces of the United States which are engaged in hostilities or are in a situation where imminent involve­ ment in hostilities is clearly indicated by the circum­ stances. On its face, this provision applies only to donations, not commercial transactions, and even when applicable may be satisfied by a Presiden­ tial “determination” under (b)(2)(A) that it would seriously impair the President’s ability to deal with the emergency. It is not clear whether this determination is to be the subject of a report to Congress under § 1703 of the Act, although it could easily be included therein. To give 1Section 1702(a)(1) reads as follows: A t the times and to the extent specified in section 1701 o f this title, the President may, under such regulations as he m ay prescribe, by means o f instructions, licenses, or otherw ise— (A ) investigate, regulate, o r prohibit— (ij any transactions in foreign exchange, (ii) transfers of credit or paym ents betw een, by, through, or to any banking institution, to the extent that such transfers or paym ents involve any interest o f any foreign country or a national thereof, (iii) the im porting o r exporting o f currency or securities; and (B) investigate, regulate, direct and com pel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer, w ithdraw al, transportation, im­ portation o r exportation of, or dealing in, o r exercising any right, pow er, or privilege w ith respect to, or transactions involving, any property in w hich any foreign country or a national thereof has any interest; by any person, o r with respect to any property, subject to the jurisdiction o f the United States. 2T he legislative history o f the Export A dm inistration A ct o f 1979, 50 U.S.C. A pp. §2401 et seq.. confirm s that total trade em bargoes are to be accom plished under the IE E P A , rather than by export controls. See H.R. Conf. Rep. No. 482, 96th Cong., 1st Sess. 46 (1979). 224 maximum effect to the congressional policy found in § 1702(b)(2), an embargo on commercial food and medicine exports could contain an exception in the terms of the statute to allow donations of these items “to relieve human suffering.” A separate source of authority to control the export of food, but not medicine, is the Export Administration Act of 1979, 50 U.S.C. App. § 2401 et seq. To invoke this statute, no executive order is necessary, although there is a requirement for a report to Congress.3 Under § 6 of the Act, “the President may prohibit or curtail the exportation of any goods . . . to the extent necessary to further significantly the foreign policy of the United States. . . Section 6(f), however, provides that § 6 does not authorize export controls on medicine or medical supplies. (At the same time, it explicitly disclaims any effect on authority under the IEEPA to control these goods.) Restrictions on food exports are authorized but not favored by the Export Act. Section 6(f) provides that it “is the intent of Congress that the President not impose export controls . . . on any goods . . . if he determines that the principal effect of the export . . . would be to help meet basic human needs.” And §§2(9) and 3(11) urge him to “mini­ mize” restrictions on the export of agricultural products. Of course, grain shipments to the Soviet Union are currently controlled under this statute. 3. Close the New York Offices of Iranian Firms If Iran Air or another Iranian firm is an “instrumentality” or “con­ trolled entity” of the government of Iran, Executive Order No. 12,170 3 C.F.R. 457 (1979), has already “blocked” all “interests” in it. The Treasury Department has issued Iranian Assets Control Regulations, 31 C.F.R. Part 535, which may be broad enough to allow Treasury to order such offices closed without even amending the regulations.4 Such an interpretation should not run afoul of the statute, which includes authority in § 1702(a)(1)(B) to “prohibit . . . exercising any right, power, or privilege” with respect to subject property. To the extent there is any doubt whether the current regulations authorize ordering businesses to close, an amendment could assert that authority. 3 The substantive and procedural requirem ents o f the pertinent portions of the Export A dm inistra­ tion A ct are outlined in our mem orandum o f April 11, 1980, to the Special Assistant to the President for Consumer Affairs. [N o t e :—T he cited memorandum is published in this volum e at p. 567 infra. Ed.] 4T he operative section o f the regulations, § 535.201(a), provides that "no property subject to the jurisdiction o f the United States . . . in which . . . Iran has any interest . . . may be transferred . . . or otherwise dealt in except as authorized.” T he regulations then define “ Iran" broadly to include controlled businesses (§ 535.301). “T ransfer” is defined broadly enough to include the creation of informal licenses such as those enjoyed by business invitees: “any act or transaction, w hether or not evidenced by w riting, . . . the . . . effect o f which is to create . . . any right . . . privilege, or interest w ith respect to any property.” (§ 535.310) “ Interest” is defined to mean ‘‘an interest o f any nature w hatsoever.” (§ 535.312) 225 For those Iranian businesses that are not instrumentalities of the government of Iran, an executive order applying the IEEPA to transac­ tions of Iranian nationals could easily have the effect of forcing closure. Indeed, the principal problem here appears to be in avoiding overbroad effects from an order that is designed to reach only some Iranian businesses. For presumably there would be no attempt to block every­ day business transactions (such as banking) by Iranian nationals prop­ erly present in this country. To avoid undue complexity, an executive order could provide that only firms specifically designated by the Treasury Department would be affected. 4. Deny Foreign Airlines That Serve Iran Landing Rights or Fuel Purchases in the United States This option raises a major unresolved issue under the IEEPA: to what extent may it be used to control foreign countries or nationals that are not the source of the threat that created the emergency? The terms of the statute are broad enough to reach third party conduct, as long as some foreign country or national is involved: § 1702(a)(1)(B) grants the President authority over property in which “any foreign country or a national thereof has any interest.” There must also be involved “any person” or “any property” that is subject to the jurisdiction of the United States. Our national jurisdiction is generally held to extend to our citizens, wherever found, and to anyone else found within Ameri­ can territory. See generally Restatement (Second), Foreign Relations Law of the United States, § 10 (1965). These provisions of § 1702(a) suggest the presence of authority to control at least some third country transactions that are subject to our jurisdiction. Such a reading would reflect the obviously broad phraseol­ ogy of the IEEPA, and would help to forestall simple circumventions of the statute by resort to agency relationships. Moreover, this interpre­ tation would respect a principal limit to presidential discretion imposed by Congress in drafting the IEEPA: denial of authority to regulate “purely domestic” transactions. 1977 House Report, supra, at 11. Nevertheless, persuasive arguments that the IEEPA should be avail­ able to control third country transactions that are designed to circum­ vent its direct impact do not justify regulating other third country transactions as part of a general “secondary boycott.” Although the IEEPA and its predecessor statute have long been used to embargo trade with offending nations, we know of no instance of a secondary boycott, nor of any particular support for one in the legislative history. It seems clear, however, that the President could find that a foreign carrier’s providing air service to Iran poses an unusual threat to the foreign policy of the United States and that all transactions with that carrier should be prohibited. 226 It may also be possible for the President to draw authority for an action designed to free the hostages, such as a secondary boycott, from the provisions of an 1868 statute, now 22 U.S.C. § 1732: Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forth­ with to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the Presi­ dent shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amount­ ing to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress. We are unaware of any instances in which this provision has been invoked. It was passed in response to a dispute with Great Britain after the Civil War, in which that nation was trying its former subjects, who had become naturalized Americans, for treason. The House version of the bill, which would have authorized the President to suspend all commerce with the offending nation and to round up its citizens found in this country as hostages, was replaced by the present language which was in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46 (1868). It is not clear whether this change was meant to restrict the President to measures less drastic than those specified in the House bill. It is also not clear what Congress meant by the phrase “not amounting to acts of war.” At least Congress did not seem to be attempting to limit the President’s constitutional powers. To the foregoing statutory sources of presidential authority must be added his broad constitutional power in foreign affairs. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). The President should be able to take actions in foreign affairs for which Congress has not explicitly denied him authority. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concur­ ring). A secondary boycott against those trading with Iran, ordered to help free the hostages in Tehran, should be within the broad constitu­ tional powers of the President, since the statutes do not explicitly deny him such power—indeed, 22 U.S.C. § 1732 provides him some general support in this particular situation. There may, however, be limitations on presidential power in applica­ ble aviation agreements with particular countries. The terms by which we grant foreign airlines the right to provide scheduled service here are set out in bilateral agreements with individual countries. We understand 227 from the State Department that these agreements do not provide for suspension in the present circumstances. (An examination of each bilat­ eral treaty and its amendments would be necessary to verify this for all countries that may be involved. Until that review occurs, we cannot recommend this action.) The Chicago Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295, 356, includes a provision that in case of war or national emergency the provisions of the Convention “shall not affect the freedom of action” of parties to the Convention (Art. 89). That Convention, however, only gives parties the privilege of making overflights and technical stops for non-scheduled flights. Art. 5. The International Air Services Transit Agreement, Dec. 7, 1944, 59 Stat. 1693, E.A.S. No. 487, 84 U.N.T.S. 389, confers similar privileges for scheduled airlines, and incorporates the provisions of the Chicago Convention (Section 2). The bilateral agreements do not, by their terms, however, incorporate the Chicago Convention provision; they are essentially self-contained agreements.5 5. Deny Vessels or Companies Serving Iran Access to U.S. Ports or Fueling Facilities See the analysis above under option 4 for our views on general presidential authority for this. We have not yet had an opportunity to consider the possible effect of the maritime statutes. 6. Block International Satellite Communications From Iran to the U.S. at Satellite Ground Stations in the U.S. The President may have statutory authority to block international satellite communications between Iran and the United States. Under 47 U.S.C. § 721(a), the President is authorized to: (4) exercise such supervision over relationships of [COMSAT] with foreign governments or entities or with international bodies as may be appropriate to assure that such relationships shall be consistent with the national interest and foreign policy of the United States. The purpose of this provision appears to have been to prevent COMSAT from affecting U.S. foreign policy in its contractual arrange­ ments, not to authorize the President to control the substance of its communications. See 108 Cong. Rec. 16,603-05 (1962). Thus, the COMSAT statute may provide useful support for an action that is part of a broader foreign policy purpose of severing transactions with Iran. 5 T he Joint Statem ent on International Terrorism at the Bonn Conference may provide some basis for calling on the signatories o f the Bonn C onference not to serve Iran because, according to the State D epartm ent, Iran is presently harboring tw o international aircraft hijackers. 228 It would not support actions directed to the content of particular transmissions. Section 1702(b) of the IEEPA provides that: The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly— (1) any postal, telegraphic, telephonic, or other per­ sonal communication, which does not involve a transfer of anything of value. . . . On its face, this provision goes no further than to deny the President any authority under the IEEPA, without reference to powers he may possess otherwise. The House report emphasizes that it did “not intend . . . to authorize regulation or prohibition of the collection and dissemi­ nation of news.” 1977 House Report at 15. This reflects an underlying constitutional concern: [W]hile it should be the purpose of the legislation to authorize tight controls in time of national emergency, these controls should not extend to the total isolation of the people of the United States from the people of any other country. Such isolation is not only unwise from a foreign policy standpoint, but enforcement of such isola­ tion can also entail violation of First Amendment rights of freedom of expression if it includes, for example, prohibi­ tions on exchange of printed matter, or on humanitarian contributions as an expression of religious convictions. Id. at 11. We are constrained to take a cautious view of statutory authority for this presidential option because of the Supreme Court’s emphasis on the need for clear statutory authority for executive action significantly affecting constitutional liberties. See Kent v. Dulles, 357 U.S. 116, 129 (1958). Thus, we do not regard either the COMSAT statute or 22 U.S.C. § 1732 as sufficiently clear warrant for presidential action di­ rected at satellite communications themselves, and not part of a broader restriction. Nor does a more limited ban on commercial transmissions commend itself. Distinctions between these communications and news or personal communications are tricky at best, and even commercial speech now enjoys some constitutional protection. See generally Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). The First Amendment issue can take either of two forms. Any presidential action that constitutes a direct restraint on the content of speech must meet a very high standard of review. The government must show a “compelling interest,” a close logical nexus between that interest and the restriction, and a narrow tailoring of the restriction to 229 avoid overbreadth. See, e.g., Police Department o f the City o f Chicago v. Mosley, 408 U.S. 92, 95-96 (1972). And if the scheme involves a prior restraint by licensing particular communications, it bears “a heavy pre­ sumption against its constitutional validity,” New York Times Co. v. United States, 403 U.S. 713, 714 (1971). In the abstract, it is difficult to envision a justification for a direct ban on satellite communications that could clear these hurdles. If attempted, it should include an exception in the terms of § 1702(b)(1) of the IEEPA. An indirect restriction on speech has a better chance of success. Here, that issue would arise if a ban on satellite communications were part of a more general ban on financial transactions with Iran and its nationals. See Kleindienst v. Mandel, 408 U.S. 753 (1972), upholding the government’s right to exclude an alien lecturer under speech-neutral criteria in the immigration laws, despite the undoubted rights of Ameri­ cans to receive ideas from abroad. The Supreme Court’s clearest state­ ment of the criteria for reviewing indirect restraints on speech occurred in United States v. O'Brien, 391 U.S. 367, 377 (1968). The Court set forth four requirements necessary to sustain a restriction: (1) whether it is within the constitutional power of the government; (2) whether it furthers an important or substantial governmental interest; (3) whether the governmental interest is unrelated to the suppression of free expres­ sion; and (4) whether the incidental restriction on alleged First Amend­ ment freedoms is any greater than is essential to the furtherance of that interest.6 Thus, a presidential action against Iran that sweeps up satellite communications in a wider net should be permissible. Again, an excep­ tion in the terms of § 1702(b)(1) would be necessary to the extent the IEEPA is the source of authority, and would help to satisfy the O'Brien test. 7. Block Iran’s International Communications by Denying Access to Intelsat The Intelsat Agreement, Aug. 20, 1971, 23 U.S.T. 3813 T.I.A.S. No. 7532, does not have a specific provision which allows a member’s communications to be cut off. The provisions regarding involuntary withdrawal (Art. XVI) all seem to be predicated on failure of a party to live up to its obligations under the Intelsat Agreement. We have no information as to whether Iran is in compliance with the Agreement. The State Department has suggested that denial of access could be accomplished by an extraordinary assembly of the parties and could be 6T he O'Brien case was applied in a series o f low er court decisions w hich upheld restrictions on the im portation o f publications and films under the T rading w ith the Enem y A ct, the IE E P A ’s predeces­ sor. Teague v. Regional Comm'r o f Customs, 404 F.2d 441, 445 (2d Cir. 1968), cert, denied, 394 U.S. 977 (1969); American Documentary Files v. Secretary o f the Treasury, 344 F. Supp. 703 (S.D.N.Y. 1972); cf. Welch v. Kennedy, 319 F. Supp. 945 (D .D .C . 1970). A similar conclusion was reached by the Third Circuit in Veterans and Reservists for Peace in Vietnam v. Regional Comm > o f Customs, 459 F. 2d 676 (3d Cir.), cert, denied. 409 U.S. 933 (1972). 230 accomplished by a two-thirds vote of the 102 members. (Art. VII (e) and (0)- There is no precedent for this, and it is not clear to us whether this power exists. 8. Prohibit Financial Transactions Involving U.S. Journalists in Iran, or Otherwise Limit Travel to Iran Under stated conditions, the President may prevent American citi­ zens from traveling to particular countries at particular times.7 In 1978, Congress dealt with this subject in an amendment to 22 U.S.C. § 211a, the statute authorizing the Secretary of State to issue passports. The amendment provided: Unless authorized by law, a passport may not be desig­ nated as restricted for travel to or for use in any country other than a country with which the United States is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physi­ cal safety of United States travellers. Present circumstances obviously satisfy the last condition of §21 la; the President may restrict future travel to Iran. See Zemel v. Rusk, 381 U.S. 1 (1965), upholding the President’s power to refuse to validate passports for Cuba under an earlier version of this statute. Nevertheless, travel restrictions applied to journalists may pose special problems. The press could bring a lawsuit challenging the government to make a factual showing sufficient to satisfy O ’Brien, supra, concerning whether there is a need to include journalists in a travel ban in view of their safety to date. Such a suit would probably require at least in camera disclosure of the government’s reasons for the restrictions. Moreover, restrictions on travel to Iran would have no immediate effect on per­ sons already in that country. The IEEPA could be used for a broad ban on financial transactions between Americans and Iran or its nationals. Such an order would apply to Americans overseas, and would make further financial transac­ tions with Iranians subject to penalty. 7This pow er to restrict the travel o f A m erican citizens generally to a particular place at a particular time is distinct from the pow er to inhibit the travel o f an individual by revoking his passport on the basis of a determ ination that his activities "are causing or are likely to cause serious dam age to the national security o r the foreign policy o f the United States." See 22 C .F.R . § 51.70(b)(4). T he existence and scope o f this latter pow er are currently being litigated. See Agee v. Vance, 483 F. Supp. 729 (D .D .C . 1980), appeal docketed. [N o t e : In the cited case, the Supreme C ourt upheld the President’s pow er, under applicable laws and regulations, to revoke a U.S. citizen's passport on national security and foreign policy grounds. Haig v. Agee, 453 U.S. 280 (1981). Ed.] 231 9. Divert Equipment From the Suspended Iran Foreign Military Sales Pipeline The present Iranian government took the initiative in canceling the great bulk of foreign military sales contracts with the United States. Near the end of last year, the United States government suspended the rest pursuant to terms of the contracts. It is legally possible that the contracts could still be reinstituted since they have not been cancelled. We understand from the State Department that nothing in the contracts would preclude our making other disposition of the articles being procured while the contracts are suspended. 10. A Broad Prohibition Against All Transactions Between Americans Relating to Iran The preceding analysis suggests that very broad restrictions are per­ missible under the IEEPA. A caveat is in order, however. The statute is limited to property in which a foreign country or foreign national has an interest. As we noted above, Treasury’s regulations define the opera­ tive terms of § 1702 to include many kinds of legal interests and their direct or indirect transfer. Thus, it would seem possible to reach trans­ actions in which Iran has an indirect interest, but it is not possible to reach “purely domestic” transactions. John M . H arm on Assistant Attorney General Office o f Legal Counsel 232

Write a legal research memo on the following topic.

Release of Information Collected Under the Agricultural Marketing Agreement Act of 1937 A provision in the appropriations act for the Departm ent o f Agriculture relating to the release of information collected under the Agricultural M arketing Agreement Act o f 1937 does not restrict the use of such information in the Departm ent’s rulemaking proceedings, in its prosecution o f enforcement proceedings, or in its defense o f regulatory actions under the 1937 Act. The restriction was intended solely to limit the Departm ent’s discretionary release of information to members o f the public in response to Freedom of Information Act or other requests. January 15, 1987 M em orandum O p in io n D epa rtm en t for th e of G eneral Co un sel, A g r ic u l t u r e This responds to your request for our opinion on the effect of a provision in the current appropriations act for the Department of Agriculture (USDA). The provision in question relates to the release of information collected under the Agricultural Marketing Agreement Act of 1937,7 U.S.C. §§ 601 et seq. (1937 Act), and reads as follows: None of the funds provided in this Act may be expended to release information acquired from any handler under the Agri­ cultural Marketing Agreement Act of 1937, as amended: Pro­ vided, That this provision shall not prohibit the release of infor­ mation to other Federal agencies for enforcement purposes: Provided further. That this provision shall not prohibit the re­ lease of aggregate statistical data used in formulating regula­ tions pursuant to the Agricultural Marketing Agreement Act of 1937, as amended: Provided further, That this provision shall not prohibit the release of information submitted by milk handlers. Pub. L. Nos. 99-500, title VI, § 631, 100 Stat. 1783, 1783-30 (1986) and 99591, title VI, § 631, 100 Stat. 3341, 3341-30 (1986) (collectively, § 631). You wish to know whether and how § 631 affects USDA’s ability to use information collected by it under the 1937 Act in connection with enforcement and rulemaking proceedings initiated by it under the 1937 Act, as well as in judicial or administrative challenges to USDA actions initiated by private 9 parties. The particular examples with respect to which you seek our guidance all involve situations in which the information in question might be introduced by USDA as evidence in connection with its own rulemaking activities, its prosecution of enforcement proceedings, and its defense of regulatory actions taken under the marketing order program established by the 1937 Act. For reasons set forth in greater detail below, we believe that § 631 does not restrict USDA’s ability to release information acquired from handlers under the 1937 Act in the course of its administration and enforcement of that Act, regardless of whether the information is relevant in an administrative or a judicial context, and regardless of whether USDA is in the position of a plaintiff or a defendant. Rather, § 631 was intended solely to limit USDA’s discretionary release of information to members of the public, outside of the enforcement context, in response to requests under the Freedom of Information Act or otherwise. In interpreting a statute, we look first to its text. Though couched in terms of a limitation on the expenditure of appropriated funds, as a practical matter §631 functions as a direct restriction on USDA’s release of information acquired from handlers under the 1937 Act. On the other hand, precisely because § 631 is a USDA appropriations limitation, it would seem to have no effect on other agencies’ ability to use or disseminate the information in question. There are three provisos to § 631’s restriction on the release of information, only one of which is relevant here: the section explicitly does not prohibit release of information to “other Federal agencies for enforcement purposes.” 1 We believe that it would be anomalous to suppose that Congress intended to allow other federal agencies freely to use information collected by USDA for their own enforcement purposes, while at the same time denying a similar freedom to USDA itself. Accordingly, we think that the ambiguously worded “enforcement” exception in § 631 must be read to reflect and incorporate Congress’ expectation that the section would not restrict USDA’s ability to use any information collected by it under the 1937 Act to carry out its own authorized enforcement functions. Yet another feature of the statutory language supports this narrow reading of § 631’s intended scope. This is the provision’s use of the term “release” to describe what USDA may not do with information collected by it, as opposed to a broader term such as “disclose.” The use of the term “release” suggests a concern with USDA’s discretionary dissemination of information to the public, rather than an intent to inhibit authorized law enforcement activities. Where Congress has imposed restrictions on a federal agency’s use of information in its possession, it has generally enacted laws prohibiting “disclosure” of such 1 The w ording o f this proviso is som ew hat am biguous, because it is not clear whether another agency’s “enforcem ent p u rposes” — as distinct from U SD A ’s ow n enforcem ent purposes — will justify U SD A ’s release o f inform ation. In any event, because § 631 restricts only U SD A ’s ability to release information, this provision w ould not inhibit another agency to which the information was released by USDA under the proviso from in turn releasing it to nongovernm ental parties in the course o f its own authonzed activities 10 information.2 Moreover, although Congress has on occasion imposed restric­ tions on an agency’s ability to disclose information in its possession to other agencies, we would not, in the absence of a very clear indication in the statutory language or legislative history, infer an intent to restrict an agency’s ability itself to use information properly obtained by it to administer and enforce a statute for which it is responsible. The legislative history of § 631 contains no such indication. To the contrary, it confirms that this section was not intended to restrict USDA’s use of information in the enforcement context. The impetus for imposing a legislative limitation on USDA’s discretionary release of information collected under the Act to private parties seems to have come in the first instance from the district court’s decision in Ivanhoe Citrus A ss’n v. Handley , 612 F. Supp. 1560 (D.D.C. 1985). Handley was a “reverse” FOIA case in which California orange growers sought to prevent USDA from releasing certain lists of grower names and addresses collected by USDA under the Act. The court ruled against the growers, holding that the grower lists in question were not exempt from disclosure under FOIA, and that USDA had not abused its discretion in releas­ ing the lists pursuant to a FOIA request. In Handley , the court held, inter alia, that lists of names and addresses were not covered by a provision in the 1937 Act requiring that certain information collected under that Act be kept confidential. See 7 U.S.C. § 608d(2). Presum­ ably, had this confidentiality provision in the 1937 Act applied to the lists in question, FOIA would have provided no basis for releasing them to a private party. See 5 U.S.C. § 552(b)(3). On the other hand, the confidentiality provi­ sion of the 1937 Act would have posed no bar to USDA’s use of protected information for its own enforcement purposes under the Act, because it pro­ vides that protected information may be disclosed “in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary of Agriculture, or to which he or any officer of the United States is a party, and involving the marketing agreement or order with reference to which the infor­ mation so to be disclosed was furnished or acquired.” 7 U.S.C. § 208d(2). In July 1985, only a few days after the Handley decision was announced, the House Agriculture Committee reported out an amendment to the confidential­ ity provision of the 1937 Act. According to the Committee’s report, the amendment was intended to extend the coverage of the confidentiality provi­ sion to the kind of information at issue in Handley. See H.R. Rep. No. 271,99th Cong., 1st Sess., pt. 1, at 197 (1985) (“The amendment would overturn the legal basis used by the [Handley] court and the Administration to justify release of growersf] names and addresses.. . . ”). Notwithstanding this apparent intention, however, the amendment reported by the House Agriculture Committee and ulti­ 2 See, e.g., 18 U.S C. § 1905 (generally prohibiting agency “disclosure” of confidential inform ation and trade secrets); 15 U S.C. § 2055(b)(1) (prohibiting “disclosure" by the C onsum er Product Safety Com m is­ sion); 5 U.S.C. § 1401 (perm itting “disclosure” o f confidential information and trade secrets received by the National Highw ay Traffic Safety A dm inistration under the National Traffic and M otor V ehicle Safely o f Act only “ when relevant in any proceeding under this title” ). See also O ffice of Legal Policy, U.S. Department of Justice, Freedom o f Information Act Case List 317-23 ( 1986) (discussion o f “ Exemption 3” statutes). li mately enacted by Congress in December 1985 was worded so as to bring within the ambit of the confidentiality provision only “trade secrets and com­ mercial or financial information.” Pub. L. No. 99-198, § 663,99 Stat. 1631 (1985). Almost immediately, questions were raised as to whether grower lists would be considered “trade secrets and commercial or financial information.” (In­ deed, the Handley decision had explicitly held that they were not, at least for purposes of the FOIA’s (b)(4) exemption. 612 F. Supp. at 1566.) It thus appeared that the 1985 amendment to the 1937 Act had not accomplished the Agriculture Committee’s stated objective of protecting the grower lists at issue in Handley from FOIA disclosure, and that further legislative steps would be necessary. When viewed against this background, § 631 appears to represent a second attempt to effect the desired limitation on USDA’s discretion to release infor­ mation collected from handlers under the 1937 Act in response to FOIA requests. That this new restriction on USDA was imposed through an appro­ priations act provision rather than by a second amendment to the confidential­ ity provision of the 1937 Act itself is probably best explained as a phenomenon of the modem legislative process: in recent years Congress has proven itself increasingly willing to use the relatively expeditious appropriations process to enact substantive law, rather than go through the arduous, time-consuming and often dangerous process of amending the United States Code. As is often the case in such situations, the current USDA appropriations act has no formal legislative history that would confirm or refute our hypothesis about the connection between § 631 and the confidentiality provision of the 1937 Act. Nonetheless, we believe that this hypothesis offers the most plau­ sible explanation of Congress’ intent in enacting §631. Accordingly, we believe § 631 should be interpreted in light of the 1937 Act’s express intention to allow USDA to use information collected under the Act “in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary of Agriculture, or to which he or any officer of the United States is a party.” 7 U.S.C. § 608d(2). In sum, we believe that § 631 does not limit USDA’s ability to release information in the context of exercising its enforcement and administrative responsibilities under the 1937 Act. Accordingly, it would appear that § 631 poses no bar to USDA’s release of information to governmental or nongovern­ mental parties in any of the specific situations described in your letter. As a final point, we note that because the restriction contained in § 631 was enacted as part of an appropriations act, there is a presumption that Congress intended it to be effective only for the fiscal period covered by that act. None of the generally accepted countervailing indications of permanence are present in either the text or nature of the provision. See General Accounting Office, Principles o f Federal Accounting Law 2-34 to 2-37 (1982).3 Accordingly, it is 3 A pro v isio n in an appropriations act w ill be regarded as perm anent if the language used o r the nature o f the provision m akes it clear that such was o f th e intention o f C ongress. Principles , supra , at 2-34. Section 631 contain s no language m aking clear C ongress’ intention to extend the provision’s life beyond that o f the C ontinued 12 our opinion that the restriction contained in § 631 will have no effect beyond the end of the fiscal period covered by the current USDA appropriations act, unless it is reenacted by Congress. S a m u e l A . A l it o , J r . Deputy Assistant Attorney General Office o f Legal Counsel 3 ( . . . continued) appropriations act in w hich it appears, and the nature o f the restriction imposed does not necessarily im ply intended permanence. The phrasing o f a provision as an affirm ative authorization rather than a restnction on the use o f funds is generally regarded as an indication that Congress intended it to be perm anent. Id. at 2 -3 7 . But § 631 is couched in term s o f a lim itation on U SD A ’s use o f funds rather than as a direct restriction on the release o f inform ation. Finally, the inclusion o f a provision in the U nited States Code, another com m on indication o f intended perm anence, id. at 2 -3 6 , is missing here. 13

Write a legal research memo on the following topic.

The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation T he A ttorney G eneral has a duty to defend and enforce both the A cts o f C ongress and the Constitution; w hen there is a conflict betw een the requirem ents o f the one and the requirem ents o f the other, it is alm ost alw ays the case that he can best discharge the responsibilities o f his office by defending and enforcing the A ct o f Congress. While there is no general privilege inconsistent with the Constitution, tional system may require action in refusal to defend and enforce an in the E xecutive to disregard laws that it deem s in rare cases the Executive’s duty to the constitu­ defiance o f a statute. In such a case, the E xecutive’s unconstitutional statute is authorized and lawful. July 30, 1980 T he C h a ir m a n C ontracted of the and D S enate Subcom elegated A m it t e e on L im it a t io n s of u t h o r it y M y D ear M r . C h a ir m a n : In your letter o f June 25, 1980, you asked that I answer eleven questions posed by you concerning the legal “authority” supporting “the Justice D epartm ent’s assertion that it can deny the validity of A cts o f Congress.” I am pleased to respond. I have taken the liberty o f setting these eleven questions out verbatim so the context in w hich my answers are given will be clear. M y answers follow several prelim inary observations about the form o f the questions asked and the general nature o f the D epartm ent’s “assertion” in this matter. The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his. I concur fully in the view, expressed by nearly all of my predecessors that when the Attorney General is confronted with such a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress. That view is supported by compelling constitutional considerations. Within their re­ spective spheres of action the three branches of government can and do exercise judgment with respect to constitutional questions, and the 55 Judicial Branch is ordinarily in a position to protect both the govern­ ment and the citizenry from unconstitutional action, legislative and executive; but only the Executive Branch can execute the statutes of the United States. F or that reason alone, if executive officers w ere to adopt a policy o f ignoring or attacking A cts o f Congress w henever they believed them to be in conflict w ith the provisions of the Constitu­ tion, their conduct in office could jeopardize the equilibrium established within our constitutional system. A t the same time, I believe that if C ongress w ere to enact a law requiring, for example, that the A ttorney G eneral arrest and imprison all m embers o f the opposition party w ithout trial, the A ttorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he w ould be untrue to his office if he w ere to do otherw ise. This is not because he has authority to “deny the validity o f A cts o f C ongress.” It is because everything in our constitutional jurisprudence inescapably establishes that neither he nor any o th er executive officer can be given authority to enforce such a law. T he “assertion” o f the D epartm ent o f Justice is nothing more, nor less, than th is.1 I have one further observation. In your letter you state that your request “does not include those situations w here the A cts themselves touch on constitutional separation o f pow ers between Executive and Legislative Branches . . . .” Since almost all o f the legal authority dealing with this question, from the trial o f A ndrew Johnson to the argum ents o f A ttorney G eneral Levi in B uckley v. Valeo, 424 U.S. 1 (1976), deal w ith separation o f pow ers issues, your limitation is strin­ gent. I will not discuss all the pertinent authorities if you will permit me to note that in this field the historical predom inance o f separation of pow ers issues is no accident. I have said that the Executive can rarely defy an A ct o f C ongress w ithout upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed in jeopardy by the A ct o f C ongress itself, the case is much m ore likely to fall within that narrow class. T he traditional debate over the nature and extent o f the President’s supervisory authority as chief executive provides a good illustration of the phenom enon to w hich I have just referred. From time to time C ongress has attem pted to limit the President’s pow er to remove, and thereby control, the officers o f the United States. Some o f these at­ tem pts have been consistent w ith the Constitution; others have not. In 11 note that an analogous situation is presented w here an individual subject to a court injunction believes that injunction to be unconstitutional o r legally invalid. T h e well-established rule is that such an injunction must be obeyed until it is dissolved o r modified on appeal in o rd e r to preserve the integrity o f the judicial process. Walker v. C ity o f Birmingham, 388 U.S. 307 (1967). T h e C ourt in Walker, how ever, was careful to em phasize that it did not have before it a case in w hich "the injunction w as transparently invalid." Id. at 315. If an A ct o f C ongress directs or authorizes the E xecutive to take action w hich is "tran sp aren tly invalid" w hen view ed in light o f established constitu­ tional law, I believe it is the Executive’s constitutional duty to decline to execute that pow er. 56 every one o f these instances, how ever, it was the A ct o f Congress itself that altered the balance o f forces between the Executive and Legisla­ tive Branches; and if the Executive had invariably honored the A ct, our constitutional system w ould have been changed by fa it accompli. A c­ cordingly, in some o f the cases in which the constitutionality o f the A ct was in doubt, the Executive determ ined that it could best preserve our constitutional system by refusing to honor the limitation imposed by the A ct, thereby creating, through opposition, an opportunity for change and correction that would not have existed had the Executive acqui­ esced. See Myers v. United States, 272 U.S. 52 (1926). Inter-branch disputes over other separation-of-powers issues can follow a similar course. I now turn to your specific questions. Question 1: W hat is the specific authority (if any) deriving from E ng­ lish constitutional history which supports the Justice D e­ partm ent’s assertion that it can deny the validity o f Acts of Congress? As I have suggested, the D epartm ent’s “assertion” depends entirely upon the proposition that there are fundamental limitations on the authority o f the Legislative and Executive Branches o f our govern­ ment. This, in fact, is the central legal principle in our constitutional system—our system o f “lim ited” governm ent—and it is a principle that the English have rejected. A ccordingly, English constitutional history is im portant for our purposes, not because it supports my view that in a system o f “limited” governm ent there are pow ers and duties that cannot be imposed upon executive officers, but because it illustrates how constitutional governm ent can develop tow ards a radically differ­ ent model—a model in w hich there is no fundamental limitation upon legislative power. It is true that there are early English cases that I could cite in my behalf. I am reminded in particular o f C oke’s ju d g ­ ment in Calvin's Case, 1 Co. Rep. 1 (immutable natural law prevents Parliam ent from separating a subject from the protection o f his king). But even though these early precedents enjoyed some vitality on this side o f the Atlantic as late as the time o f the Am erican Revolution (consider, for example, James Otis’ classic attack on the writs o f assist­ ance, February 24, 1761, printed in Commager, D ocum ents o f A m eri­ can History 45 (5th ed. 1949)), they did not carry the day in their ow n country. I should add that I consider the 17th century dispute between Parlia­ ment and the Stuart kings over the so-called “dispensing pow er” to be directly relevant to the questions you have raised. T he history o f that dispute was well-known to the Fram ers o f the Constitution, and it is clear that they intended to deny our President any discretionary pow er o f the sort that the Stuarts claimed. W e must remember, how ever, that 57 it was largely as a result o f Parliam ent’s victory in that m atter that the English came to abandon any notion that “ fundamental law ” limited the pow ers o f the legislative sovereign. This is the very notion upon w hich o ur Constitution, and the D epartm ent’s view o f this question, depends. In our system o f limited governm ent, unlike the English system, there are some things that the legislature and the officers o f the governm ent cannot lawfully do. Question 2: W hat is the specific authority (if any) deriving from the Constitutional C onvention and other expressions of the Fram ers w hich supports the Justice D epartm ent’s asser­ tion that it can deny the validity o f A cts of Congress? T he available evidence concerning the intentions o f the Fram ers lends no specific support to the proposition that the Executive has a constitutional privilege to disregard statutes that are deemed by it to be inconsistent with the Constitution. T he Fram ers gave the President a veto for the purpose, among others, o f enabling him to defend his constitutional position. T hey also provided that his veto could be over­ ridden by extraordinary m ajority in both Houses. T hat being so, an argum ent can be made that the Fram ers assumed that the President would not be free to ignore, on constitutional grounds or otherwise, an A ct o f Congress that he had been unwilling to veto 2 or had been enacted over his veto. A t the same time, I believe that there is relatively little direct evi­ dence o f w hat the Fram ers thought, o r m ight have thought, about the E xecutive’s obligations w ith regard to A cts o f Congress that w ere transparently inconsistent w ith the Constitution; and, indeed, the ques­ tion remained open for some time after the Constitution was adopted. President Jefferson, for example, w riting o f the Alien and Sedition Acts in 1804, concluded that each branch had pow er to exercise independent judgm ent on constitutional questions and that this was an im portant elem ent in the system o f checks and balances: T h e judges believing the [Sedition law] constitutional, had a right to pass a sentence o f fine and imprisonment; be­ cause that pow er was placed in their hands by the Consti­ tution. But the executive, believing the law to be uncon­ stitutional, was bound to remit the execution o f it; because that pow er has been confided to him by the Constitution. T he instrum ent meant that its coordinate branches should be checks on each other. 8 W ritings o f Thom as Jefferson 310 (1897). 2T h e P resident’s failure to veto an unconstitutional A ct o f C ongress does not in itself estop the E xecutive from challenging the A ct in co u rt at a future date, n o r does it cure the constitutional defect w here the question is one o f separation o f pow ers. See M yers v. United States, 272 U.S. 52 (1926); N ational League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976). 58 President Jefferson’s view was not to prevail, although other early Presidents, including A ndrew Jackson, w ere to express similar senti­ ments from time to time. As I have said, I do not believe that the prerogative of the Executive is to exercise free and independent judgm ent on constitutional questions presented by A cts o f Congress. At the same time, I think that in rare cases the Executive’s duty to the constitutional system may require that a statute be challenged; and if that happens, executive action in defiance o f the statute is authorized and lawful if the statute is unconstitutional. T hat brings me to your next question. Question 3: W hat is the specific authority (if any) deriving from Su­ prem e C ourt or other judicial opinions w hich supports the Justice D epartm ent’s assertion that it can deny the validi­ ty o f A cts o f Congress? In M yers v. United States, 272 U.S. 52 (1926), the Supreme C ourt was asked to decide w hether the President had acted lawfully in rem oving a postm aster from office in contravention o f an A ct o f Congress. T he A ct provided that postmasters w ere not to be rem oved by the President w ithout the advice and consent o f the Senate. T he case involved a claim for back salary filed by the heirs o f the postm aster w ho had been removed. T he action was brought in the C ourt o f Claims under statute that gives that court jurisdiction to hear cases not sounding in tort arising out o f conduct by executive officers alleged to be unlawful under the C onstitution or A cts o f Congress. W hen the case came before the Supreme C ourt, the Solicitor G en­ eral, appearing for the United States, assailed the attem pt to limit the removal power. He argued that the statute imposed an unconstitutional burden upon the President’s supervisory authority over subordinate officers in the Executive Branch. Senator Pepper made an amicus curiae appearance and argued that the statute was constitutional. T he C ourt ruled that the statute was unconstitutional. M ore to the point, the C ourt ruled that the President’s action in defiance o f the statute had been lawful. It gave rise to no actionable claim for damages under the Constitution or an A ct o f Congress in the C ourt o f Claims. In my view, M yers is very nearly decisive o f the issue you have raised. M yers holds that the President’s constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts. He cannot be required by statute to retain postmasters against his will unless and until a court says that he may lawfully let them go. If the statute is unconstitutional, it is uncon­ stitutional from the start. I wish to add a cautionary note. T he President has no “dispensing pow er.” If he or his subordinates, acting at his direction, defy an A ct of Congress, their action will be condem ned if the A ct is ultim ately 59 upheld. T heir ow n views regarding the legality or desirability o f the statute do not suspend its operation and do not immunize their conduct from judicial control. T hey may not lawfully defy an A ct o f Congress if the A ct is constitutional. This was the teaching o f a near sequel o f Myers, H um phrey’s Executor v. United States, 295 U.S. 602 (1935); and it is a proposition that was implicit in many prior holdings. In those rare instances in w hich the Executive may lawfully act in contravention o f a statute, it is the Constitution that dispenses with the operation o f the statute. T he E xecutive cannot. Question 4: W hat is the specific authority (if any) deriving from opin­ ions o f the A ttorneys G eneral w hich supports the Justice D epartm ent’s assertion that it can deny the validity of A cts o f Congress? T he formal opinions o f my predecessors in this Office establish with clarity the general principles upon w hich this D epartm ent continues to rely in dealing with real or apparent conflicts between A cts o f C on­ gress and the Constitution. See, e.g., 40 Op. A tt’y Gen. 158, 160, and opinions cited therein. As I have already said, I support those opinions fully. All o f them emphasize our param ount obligation to the A cts o f Congress. None o f them concludes that the Executive must enforce and defend every A ct o f C ongress in every conceivable case, the require­ ments o f the Constitution notw ithstanding. Question 5: W hat is the specific authority (if any) deriving from ex­ press language in statutes o r their legislative history w hich supports the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f Congress? T he statutes that define the Office o f the A ttorney G eneral require him to render opinions upon questions o f law, and they require him to conduct litigation in w hich the U nited States is interested. None o f the statutes either requires or forbids him to inquire into the constitutional­ ity o f statutes.3 As I have said, the traditional opinion has been that the A ttorney G eneral, in the due perform ance o f his constitutional function as an officer o f the United States, must ordinarily defend the A cts o f Congress. As I have said, I subscribe fully to that position. Question 6: W hat is the specific authority (if any) deriving from his­ toric practice prior to the current Adm inistration which supports the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f Congress? M arbury v. Madison, 1 C ranch 137 (1803), was probably the first case in w hich the E xecutive made no effort to defend an A ct o f Congress 3Q uite apart from the provisions o f any statute prescribing the duties o r the authority o f the A ttorn ey G eneral, the C onstitution itself provides that the President ' ‘may require the O pinion in W riting, o f the principal O fficer in each o f the executive D epartm ents upon any subject relating to the D uties o f their respective O ffices." U.S. C onst. A rt. II, § 2, cl. I. 60 on a constitutional point. President Jefferson was strongly o f the view that Congress had no pow er to give the Suprem e C ourt (or any other court) authority to control executive officers through the issuance of writs o f mandamus. See 1 W arren, T he Suprem e C ourt in United States History 232, 242-43 (1922). W hen Mr. M arbury and the other “mid­ night judges” initiated an original action in the Supreme C ourt to com pel delivery o f their commissions, President Jefferson’s A ttorney General, Levi Lincoln, made no appearance in the case except as a reluctant witness. See 1 C ranch 143-44. No attorney appeared on behalf o f Secretary Madison. T he C ourt ultimately resolved the case by agree­ ing and disagreeing with President Jefferson. T he C ourt held that the relevant statute was unconstitutional to the extent that it attem pted to give the Supreme C ourt pow er to issue writs o f mandamus against executive officers, but that there was no general principle o f law that would prevent Congress from giving that pow er to the low er courts. A second significant historical incident involving a refusal by the Executive to execute or defend the A cts o f Congress on constitutional grounds arose during the adm inistration o f A ndrew Johnson. In defi­ ance o f the T enure in Office A ct, w hich he deemed to be unconstitu­ tional, President Johnson rem oved his Secretary o f War. This action provided the legal basis for one of the charges that was lodged against him by his opponents in the House; and during his subsequent trial in the Senate, the arguments offered by counsel on both sides provided an illuminating discussion o f the responsibilities o f the Executive in our constitutional system. See 2 Trial o f A ndrew Johnson 200 (W ashington 1868). President Johnson was acquitted by one vote. I will mention a third incident that illustrates an interesting variation on the historical practice. In the midst o f W orld W ar II, as a result o f the w ork o f the House Com mittee on Un-Am erican Activities, C on­ gress provided, in a deficiency appropriations act, that no salary or com pensation could be paid to certain named governm ent employees. These individuals had been branded in the House as “ irresponsible, unrepresentative, crackpot, radical bureaucrats.” T he Executive re­ sponded to the statute by taking tw o courses at once. T he Executive enforced the letter o f the statute (by not paying the salary o f the employees in question), but joined with the employees in a legal attack upon the constitutionality o f the relevant provision. W hen the case came before the Suprem e C ourt, an attorney was perm itted to appear on behalf o f Congress, as amicus curiae, to defend the statute against the com bined assault. T he C ourt struck the relevant provision, holding that it was a bill o f attainder, and allowed the employees to recover. United States v. Lovett, 328 U.S. 303 (1946). A ltogether, there have been very few occasions in our history when Presidents or A ttorneys G eneral have undertaken to defy, o r to refuse to defend, an A ct o f Congress. M ost o f the relevant cases are cited 61 either in the foregoing discussion o r in the answers that the Senate Legal Counsel has provided to you in response to these same questions. Question 7: W hat is the specific support (if any) expressed in any scholarly article o r book for the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f C on­ gress? A helpful scholarly discussion o f this problem , together with citations to o ther works, may be found in E dw ard C orw in’s book on the Presi­ dency. Taking full advantage o f his scholarly prerogative, Corw in ignores the teaching and, indeed, the holding o f M yers and concludes that the President, even though he may doubt the constitutionality of a statute, “must prom ote its enforcem ent by all the pow ers constitution­ ally at his disposal unless and until enforcem ent is prevented by regular judicial process.” 2 E. C orw in, T he President, Office and Powers, 1887-1957, 66 (4th rev. ed. 1957). Question 8: W hat is the specific authority (if any) deriving from ethi­ cal pronouncem ents w hich supports the Justice D epart­ m ent’s assertion that it can deny the validity o f A cts o f Congress? T he “ethical” obligations that devolve upon the A ttorney G eneral as a mem ber o f the legal profession cannot enlarge or contract his duties as an officer o f the U nited States. T here is nothing in my obligation to my profession or to the courts that prevents me from discharging my duty either to defend the A cts o f C ongress o r to question them in the rare cases in w hich that is appropriate. Question 9: W hat specific instances are there in w hich a court o r bar association has expressly asserted an ethical duty for gov­ ernm ent litigators to inquire into the validity o f A cts of Congress? I know o f no decision by a court or a bar association that expressly asserts that governm ent litigators have an ethical duty either to inquire into the validity o f A cts o f C ongress or to defend them. Question 10: Has the Justice D epartm ent ever sought from Congress legislation to deal with any asserted ethical problem in litigation concerning the validity o f A cts o f Congress? No. Question 11: Has there been any relevant change in the ethical rules in the past few years, since the Justice D epartm ent has first begun denying the validity o f A cts o f Congress? I know o f no recent change in any ethical rule that relates to this problem . Y our question assumes that the Justice D epartm ent has some new policy in this field. F rom w hat I have said in response to your 62 questions, and from the historical examples I have given, I hope it is clear that we have no new policy. O ur policy is an old one. Sincerely, B e n ja m in 63 R. C iv il e t t i

Write a legal research memo on the following topic.

Authority of Acting FBI Officials to Sign National Security Letters Under the statutes authorizing the FBI to issue national security letters, the Director of the FBI may designate Acting Deputy Assistant Directors and Acting Special Agents in Charge to sign national security letters. January 16, 2009 MEMORANDUM OPINION FOR THE GENERAL COUNSEL FEDERAL BUREAU OF INVESTIGATION You have asked whether an official acting temporarily in the position of Deputy Assistant Director at the headquarters of the Federal Bureau of Investigation (“FBI”) or Special Agent in Charge of an FBI field office may sign national security letters (“NSLs”). By statute, NSLs may be issued by “[t]he Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” E.g., 18 U.S.C. § 2709(b) (2006). 1 We conclude that, under the NSL statutes, the Director of the FBI (“Director”) may designate Acting Deputy Assistant Directors and Acting Special Agents in Charge to sign NSLs. 2 1 Memorandum for the Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Valerie E. Caproni, General Counsel, Federal Bureau of Investigation (Mar. 27, 2008) (“FBI Memorandum”). 2 You also raise the question whether the conferral of authority to sign NSLs on Acting Deputy Assistant Directors and Acting Special Agents in Charge would square with the Appointments Clause; your memorandum assumes that the authority to sign NSLs implicates the Appointments Clause and that employees who sign NSLs must be appointed in accordance with that Clause. See FBI Memorandum at 6. We understand that the Director selects Acting Deputy Assistant Directors and Special Agents in Charge from among special agents and members of ‘the FBI Senior Executive Service, and that the authority to appoint these officials has been delegated (and, in some cases, redelegated) from the Attorney General to subordinate officials of the FBI. See id. at 1, 6–7. As our Office previously has stated, the “question whether [the head of a department may] delegate appointment authority to an officer below the head of the department is a difficult one, and we cannot provide a definitive answer at this time.” Assignment of Certain Functions Related to Certain Military Appointments, 29 Op. O.L.C. 133, 135 (2005). We noted in particular that “[t]he Clause was designed to ‘limit[] the universe of eligible recipients of 146 Authority of Acting FBI Officials to Sign National Security Letters I. Under 18 U.S.C. § 2709 (2006), 12 U.S.C. § 3414 (2006), and 15 U.S.C. § 1681u (2006), the FBI may issue NSLs seeking information relevant to national security investigations. 3 In particular, 18 U.S.C. § 2709(b) allows the FBI to obtain from a wire or electronic communications service provider the name, address, length of service, and billing records of a subscriber, while 12 U.S.C. § 3414 deals with customer records from financial institutions, and 15 U.S.C. § 1681u with certain information from consumer reporting agencies. To issue an NSL under these statutes, the FBI must certify in writing that the information requested “is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a). If the FBI further certifies that “otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,” the recipient of the NSL will be prohibited from disclosing the NSL’s existence or content, except as necessary to comply with the NSL or to seek legal advice about it. 18 U.S.C. § 2709(c); 12 U.S.C. § 3414(a)(5)(D); 15 U.S.C. § 1681u(d). Both of these statutory certifications must be made by “[t]he Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” 18 U.S.C. § 2709(b), (c); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a), (d). You have asked whether this language permits Acting Deputy Assistant Directhe power to appoint’ in order to ensure that such actors were readily identifiable and politically accountable.” Id. at 4 (quoting Freytag v. Comm’r, 501 U.S. 868, 885 (1991)). We are not in a position in the present opinion to resolve this difficult question about the delegability of a department head’s authority to appoint inferior officers. 3 The FBI Memorandum notes (at page 2) that 15 U.S.C. § 1681v (2006) similarly authorizes the issuance of NSLs to consumer reporting agencies (to obtain full credit reports), but that statute is different from the other NSL statutes insofar as it requires the certifications to be made by a “supervisory official” designated by the head of an agency or another official appointed by the President with the Senate’s advice and consent. Id. § 1681v(b). We understand that, despite this textual difference, the FBI’s policy is to follow the same procedures for issuing NSLs under section 1681v as for other NSLs. 147 33 Op. O.L.C. 146 (2009) tors and Acting Special Agents in Charge to make these certifications. We conclude that it does. As a general rule, “[a]n acting officer is vested with the full authority of the officer for whom he acts.” Acting Officers, 6 Op. O.L.C. 119, 120 (1982); see Keyser v. Hitz, 133 U.S. 138, 146 (1890); Ryan v. United States, 136 U.S. 68, 81 (1890); Commissioners of Soldiers’ Home— Vacancy, 23 Op. Att’y Gen. 473, 475–76 (1901); see, e.g., United States v. McGee, 173 F.3d 952, 955–56 (6th Cir. 1999); United States v. Pellicci, 504 F.2d 1106, 1107 (1st Cir. 1974) (“There is no basis for concluding that one ‘acting’ as Attorney General has fewer than all the powers of that office.”). We assume that Congress legislates with an awareness of this presumption, see Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993), and we therefore construe statutes that authorize officers to perform specified functions as encompassing acting officers, even if the statutes do not expressly name them. See Memorandum for Richard L. Thornburgh, Assistant Attorney General, Criminal Division, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Designation of a Deputy Assistant Attorney General to Act as Assistant Attorney General at 3–4 (Sept. 9, 1975) (“Designation of a Deputy Assistant Attorney General ”); Memorandum for Stephen S. Trott, Assistant Attorney General, Criminal Division, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of Acting Assistant Attorney General to Authorize an Application for a Title III Wiretap at 7 (July 10, 1984) (“Authority of Acting Assistant Attorney General ”). Applying this principle, a 1975 opinion of our Office concluded that the federal wiretap statute, 18 U.S.C. § 2516 (1970), permitted an Acting Assistant Attorney General to authorize wiretap applications, even though the statute provided for authorization by the “[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General.” See Designation of a Deputy Assistant Attorney General at 3, 6. Our opinion was prompted by dicta in United States v. Acon, 513 F.2d 513, 516 (3d Cir. 1975), stating that Acting Assistant Attorneys General could not authorize wiretap applications because the statute did not list them. We disagreed with that view. We argued that Acon had erroneously relied on United States v. Giordano, 416 U.S. 505 (1974), which had held that the Attorney General’s Executive Assistant could not approve a 148 Authority of Acting FBI Officials to Sign National Security Letters wiretap application because the statute did not name the “Executive Assistant” as among the officials to whom the Attorney General could delegate his authority, and the statute’s legislative history revealed an intent to restrict the delegation of authority to a small group of politically responsive, senior Department of Justice officials. See Designation of a Deputy Assistant Attorney General at 2. Giordano was not relevant to the issue at hand, we explained, because whether a power may be delegated to a particular official and whether an acting official may exercise that power are two distinct issues; Acon erred by failing to distinguish between an intent to limit delegation and the “extraordinary” intent “to reverse the normal rule concerning authority of acting officers.” Id. at 4. We noted that reading a delegation limitation to exclude acting officials from a function would substantially expand the restriction with relatively small benefits. Id. Any such exceptions to the general rule about acting officials, we also noted, would impose a significant burden on acting officials by making it difficult to determine which powers of the permanent office they possess. Id. at 6 (citing Pellicci, 504 F.2d at 1107). Thus, although we recognized that “congressional concern for the sensitivity of a function could result in not merely the commitment of that function to particular officials but also in a prohibition against exercise of the function by any acting holders of the named offices,” we concluded that evidence of intent to limit the delegability of a function alone would not show that Congress also intended to preclude acting officials from performing that function. Id. at 4. A 1984 opinion of our Office reaffirmed the conclusions of our 1975 opinion. Nonetheless, we observed that intervening court cases had extended Giordano’s analysis to preclude Acting Assistant Attorneys General from authorizing wiretap applications. See Authority of Acting Assistant Attorney General at 1. We therefore advised caution in pursuing the position that the wiretap statute permitted Acting Assistant Attorneys General to approve wiretap applications. The wiretap statute, however, presented a specialized concern that is not presented by the NSL statutes. As described in Giordano, the legislative history of the wiretap statute revealed congressional intent to limit authority to approve wiretap applications to officials who could be held accountable through the political process, and it suggested that perhaps only Senate-confirmed presidential appointees are politically responsive in the relevant sense. See id. at 2–3 149 33 Op. O.L.C. 146 (2009) (citing Giordano, 416 U.S. at 520 & n.9). Thus, cases such as Acon stated that “an acting assistant attorney general [does not] meet the Supreme Court’s test of political responsiveness.” Acon, 513 F.2d at 516. The NSL statutes, in contrast, expressly authorize the issuance of NSLs by officials who are not Senate-confirmed and arguably are not politically responsive according to Giordano, and the legislative history of the NSL statutes, described in more detail below, does not reveal any special concern about the political accountability of officials who issue NSLs. If the NSL statutes simply named “Deputy Assistant Directors” and “Special Agents in Charge” as among the officials whom the Director could designate to issue NSLs, the presumption about acting officials and our 1975 opinion would lead directly to the conclusion that Acting Deputy Assistant Directors and Acting Special Agents in Charge could sign NSLs. See Designation of Deputy Assistant Attorney General at 5 (“[T]he naming of the office[] goes merely to the level of which delegation is permitted and not to the issue of whether, for an interim period, a temporary holder of that office can perform the delegated function.”). The text of these statutes, however, raises a substantial and difficult question whether “congressional concern for the sensitivity of ” NSL functions has resulted “in a prohibition against exercise of [such] function[s] by any acting holders of the named offices.” Id. at 4. These statutes do not simply name the officials whom the Director may designate to exercise NSL authorities. Instead, they reserve the exercise of NSL functions to the Director “or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” 18 U.S.C. § 2709(b); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a) (emphasis added). This language is unusual and might suggest a congressional intent to limit the exercise of NSL authority to permanent appointees, who, unlike acting officials, perhaps are more fittingly characterized as “in a position.” 4 4 We are aware of two other statutes that use the formulation “in a position not lower than.” See 20 U.S.C. § 1232g( j ) (2006) (authorizing “the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated.by the Attorney General),” to seek an ex parte court order allowing access to educational records in connection with terrorism investigations or prosecutions (emphasis added)); id. § 9573(e) (similar). Neither our Office nor any court has considered the meaning of these provisions. 150 Authority of Acting FBI Officials to Sign National Security Letters II. Statutes about the designation of acting officials typically do not refer to such officials as being “in a position.” The Vacancies Reform Act (“VRA”), for example, says that an acting officer “shall perform the functions and duties” of the vacant office. 5 U.S.C. § 3345(a) (2006). Other statutes use similar language or provide that the acting official shall “serve as” or shall “be” “Acting [Title]” in the event of a vacancy, absence, or disability. See, e.g., 10 U.S.C. § 154(d) (2006) (providing that “the Vice Chairman [of the Joint Chiefs of Staff] acts as Chairman and performs the duties of the Chairman until a successor is appointed or the absence or disability ceases”); 12 U.S.C. § 1462a(c)(3)(B) (2006) (“In the event of a vacancy in the position of Director [of the Office of Thrift Supervision] or during the absence or disability of the Director, the Deputy Director shall serve as Acting Director.”); 18 U.S.C. § 508 (2006) (“In case of a vacancy in the office of Attorney General, or, of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”) (emphases added). The existence of these formulations, however, does not demonstrate that by using the language “in a position not lower than,” Congress sought to preclude Acting Deputy Assistant Directors from exercising NSL functions. Nothing in the statutes speaks directly to the issue of acting officials, and the phrase “in a position not lower than” easily could refer to the level to which the function may be delegated. In light of the distinction we drew in our 1975 opinion between provisions that restrict delegability and those that exclude acting officials from performing a function, and in light of the well-established presumption that acting officials may exercise the same authorities as permanent officeholders, the NSL statutes are best read as placing a limit on delegation, not overturning the ordinary presumption about acting officials. We believe Congress would have spoken more clearly had it intended to preclude acting officials from issuing NSLs. See Designation of a Deputy Assistant Attorney General at 6; Authority of Acting Assistant Attorney General at 7. The legislative history of the NSL statutes generally supports the view that Congress sought to limit the delegation of NSL functions to FBI officials at the level of Deputy Assistant Director or above, rather than to preclude Acting Deputy Assistant Directors from issuing NSLs. As 151 33 Op. O.L.C. 146 (2009) originally enacted, 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u did not expressly limit the class of officials whom the Director could designate to sign NSLs. Instead, 18 U.S.C. § 2709 authorized “[t]he Director . . . (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director)” to make the certifications required for NSLs (Electronic Communications Privacy Act, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986)), and 12 U.S.C. § 3414 and 15 U.S.C. § 1681u provided that “the Director . . . (or the Director’s designee)” could make NSL certifications (Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, § 404, 100 Stat. 3190, 3197 (1986); Intelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93, § 601(a), 109 Stat. 961, 975 (1996)). In the conference reports accompanying 12 U.S.C. § 3414 and 15 U.S.C. § 1681u, however, the conferees stated that the Director should not delegate NSL authority below the level of Deputy Assistant Director. See H.R. Rep. No. 99-952, at 23–24 (1986) (Conf. Rep.) (noting that the conferees had “concluded that, should the Director of the FBI decide to delegate his authority [under 12 U.S.C. § 3414], . . . he should delegate it no further down the FBI chain-of-command than the level of Deputy Assistant Director” (emphasis added)); H.R. Rep. No. 104-427, at 37–38 (1995) (Conf. Rep.) (“As is the case with the FBI’s existing National Security Letter authority . . . , the conferees expect, that if the Director of the FBI delegates th[ese] function[s] under [15 U.S.C. § 1681u], the Director will delegate [them] no further than the level of FBI Deputy Assistant Director.”); see also H.R. Rep. No. 99-690, pt. 1, at 17 (1986) (“The Committee urges that, if the Director of the FBI delegates his function under [12 U.S.C. § 3414], he will delegate it no further down the FBI chain of command than the level of Assistant Director.”). The conference report that accompanied 18 U.S.C. § 2709 does not as clearly reveal a concern about delegability, but it seems likely that Congress viewed this statute and the other NSL statutes as similar. See S. Rep. No. 99-541, at 44–45 (1986) (“It is intended that the [certification] requirement will be determined by a senior FBI official at the level of Deputy Assistant Director or above.”). 5 There is no indication in the legislative history of 18 U.S.C. 5 Congress subsequently codified these restrictions by amending 18 U.S.C. § 2709(b) to provide that the “Director of the [FBI], or his designee in a position not lower than 152 Authority of Acting FBI Officials to Sign National Security Letters § 2709, 12 U.S.C. § 3414, or 15 U.S.C. § 1681u that Congress intended to preclude acting officials from issuing NSLs. The legislative history of the NSL statutes does not reveal anything more than intent to restrict the delegability of NSL functions. That intent does not support a conclusion that Congress meant to preclude Acting Deputy Assistant Directors from exercising NSL functions. In the absence of any evidence in the statutory text or legislative history of “extraordinary” congressional intent to “reverse the normal rule concerning authority of acting officers,” Designation of a Deputy Assistant Attorney General at 4, we conclude that 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u permit Acting Deputy Assistant Directors at FBI headquarters to exercise NSL functions. III. We also conclude that the NSL statutes permit Acting Special Agents in Charge to exercise NSL functions. As a preliminary matter, we note that the language in the NSL statutes, “in a position not lower than,” may not apply to Special Agents in Charge of FBI field offices. It would be awkward and redundant for the NSL statutes to permit NSLs to be signed by the Director’s “designee in a position not lower than . . . a Special Agent in Charge in a Bureau field office designated by the Director.” (Emphasis added.) To avoid surplusage, we could read these statutes as authorizing the exercise of NSL authorities by the director’s (1) “designee in a position not lower than Deputy Assistant Director at Bureau headquarters” or (2) “a Special Agent in Charge in a Bureau field office designated by the Director.” See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). On this reading, because the “in a position not lower than” language would not apply to Special Agents in Charge, they would simply be named among the officials whom the Director could designate to exercise NSL authorities. Under the ordinary presumption about acting officials, therefore, the NSL statutes would authorize Acting Special Agents in Deputy Assistant Director,” may sign an NSL. Pub. L. No.103-142, § 1, 107 Stat. 1491, 1491 (1993). Section 3414 of title 12 and 15 U.S.C. § 1681u were later amended to conform to 18 U.S.C. § 2709. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 505, 115 Stat. 272, 365–66 (2001). 153 33 Op. O.L.C. 146 (2009) Charge to sign NSLs. See Designation of a Deputy Assistant Attorney General at 3–4 (“[T]he description of the class of officials who are authorized to perform certain acts also includes acting officials, even if they are not specifically mentioned[.]”); see also McGee, 173 F.3d at 955–56; Pellicci, 504 F.2d at 1107; Commissioners of Soldiers’ Home—Vacancy, 23 Op. Att’y Gen. 473, 475–76 (1901). Even if the phrase “in a position not lower than” applies to Special Agents in Charge, however, we would still read the statute as limiting delegation only, rather than overturning the presumption that acting officers may exercise the full powers of the offices in which they temporarily serve. Like the legislative history discussed above, the legislative record behind the addition of Special Agents in Charge to the NSL statutes does not show any congressional concern about the issuance of NSLs by acting officials. When Congress added Special Agents in Charge to the NSL statutes, it sought to expand, not restrict, the class of officials who may be authorized to issue NSLs. In 2001, Congress amended the NSL statutes to permit the Director to designate a “Special Agent in Charge in a Bureau field office,” in addition to headquarters officials at the level of Deputy Assistant Director or above. Pub. L. No. 107-56, § 505, 115 Stat. at 365–66. In hearings on the proposed legislation, a Department of Justice official explained that the proposed amendment would “allow special agents in charge—that is, the top-ranking FBI field agent in each of the FBI’s 56 field offices—to issue one of these letters rather than requiring the letter to be sent out by an Assistant Director at headquarters.” S. 1448, The Intelligence to Prevent Terrorism Act of 2001 and Other Legislative Proposals in the Wake of the September 11, 2001 Attacks: Hearing Before the S. Select Comm. on Intelligence, 107th Cong. 24 (2001) (statement of David Kris, Associate Deputy Attorney General). A section-by-section analysis similarly explained that, “because [NSLs] require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. . . . In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority.” Administration’s Draft AntiTerrorism Act of 2001: Hearing Before the H. Comm. on the Judiciary, 107th Cong. 57–58 (2001). In view of the statutory presumption about acting officials and this indication of congressional intent to expand the 154 Authority of Acting FBI Officials to Sign National Security Letters class of officials who may issue NSLs, we think that 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u permit Acting Special Agents in Charge to sign NSLs. 6 DANIEL L. KOFFSKY Deputy Assistant Attorney General Office of Legal Counsel It might be argued that Acting Deputy Assistant Directors and Acting Special Agents in Charge should not be permitted to issue NSLs under the NSL statutes because the Director could designate relatively low-level employees to serve in these roles. See 136 Cong. Rec. 35,806, 35,817 (Oct. 26, 1990) (statement of Sen. Boren) (introducing amendment to NSL statutes that “adds the requirement that the Director’s designee be of at least the rank of Deputy Assistant Director . . . due, in part, to the finding that critical decisions [concerning NSLs] were made at low levels at FBI Headquarters”). We do not think this possibility undermines our interpretation of the NSL statutes. Congress vested the authority to issue NSLs in Deputy Assistant Directors and Special Agents in Charge designated by the Director, and there is no indication of congressional intent to preclude issuance of NSLs by officials acting in these positions. Moreover, as the FBI Memorandum notes (at pages 1 and 7), the Director selects permanent and acting Deputy Assistant Directors and Special Agents in Charge from the same pool of FBI employees (special agents and members of the FBI Senior Executive Service). This practice further supports the view that the issuance of NSLs by Acting Deputy Assistant Directors and Special Agents in Charge should not raise any special concern under the NSL statutes. 6 155

Write a legal research memo on the following topic.

Authority of Acting FBI Officials to Sign National Security Letters Under the statutes authorizing the FBI to issue national security letters, the Director of the FBI may designate Acting Deputy Assistant Directors and Acting Special Agents in Charge to sign national security letters. January 16, 2009 MEMORANDUM OPINION FOR THE GENERAL COUNSEL FEDERAL BUREAU OF INVESTIGATION You have asked whether an official acting temporarily in the position of Deputy Assistant Director at the headquarters of the Federal Bureau of Investigation (“FBI”) or Special Agent in Charge of an FBI field office may sign national security letters (“NSLs”). By statute, NSLs may be issued by “[t]he Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” E.g., 18 U.S.C. § 2709(b) (2006). 1 We conclude that, under the NSL statutes, the Director of the FBI (“Director”) may designate Acting Deputy Assistant Directors and Acting Special Agents in Charge to sign NSLs. 2 1 Memorandum for the Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Valerie E. Caproni, General Counsel, Federal Bureau of Investigation (Mar. 27, 2008) (“FBI Memorandum”). 2 You also raise the question whether the conferral of authority to sign NSLs on Acting Deputy Assistant Directors and Acting Special Agents in Charge would square with the Appointments Clause; your memorandum assumes that the authority to sign NSLs implicates the Appointments Clause and that employees who sign NSLs must be appointed in accordance with that Clause. See FBI Memorandum at 6. We understand that the Director selects Acting Deputy Assistant Directors and Special Agents in Charge from among special agents and members of ‘the FBI Senior Executive Service, and that the authority to appoint these officials has been delegated (and, in some cases, redelegated) from the Attorney General to subordinate officials of the FBI. See id. at 1, 6–7. As our Office previously has stated, the “question whether [the head of a department may] delegate appointment authority to an officer below the head of the department is a difficult one, and we cannot provide a definitive answer at this time.” Assignment of Certain Functions Related to Certain Military Appointments, 29 Op. O.L.C. 133, 135 (2005). We noted in particular that “[t]he Clause was designed to ‘limit[] the universe of eligible recipients of 146 Authority of Acting FBI Officials to Sign National Security Letters I. Under 18 U.S.C. § 2709 (2006), 12 U.S.C. § 3414 (2006), and 15 U.S.C. § 1681u (2006), the FBI may issue NSLs seeking information relevant to national security investigations. 3 In particular, 18 U.S.C. § 2709(b) allows the FBI to obtain from a wire or electronic communications service provider the name, address, length of service, and billing records of a subscriber, while 12 U.S.C. § 3414 deals with customer records from financial institutions, and 15 U.S.C. § 1681u with certain information from consumer reporting agencies. To issue an NSL under these statutes, the FBI must certify in writing that the information requested “is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a). If the FBI further certifies that “otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,” the recipient of the NSL will be prohibited from disclosing the NSL’s existence or content, except as necessary to comply with the NSL or to seek legal advice about it. 18 U.S.C. § 2709(c); 12 U.S.C. § 3414(a)(5)(D); 15 U.S.C. § 1681u(d). Both of these statutory certifications must be made by “[t]he Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” 18 U.S.C. § 2709(b), (c); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a), (d). You have asked whether this language permits Acting Deputy Assistant Directhe power to appoint’ in order to ensure that such actors were readily identifiable and politically accountable.” Id. at 4 (quoting Freytag v. Comm’r, 501 U.S. 868, 885 (1991)). We are not in a position in the present opinion to resolve this difficult question about the delegability of a department head’s authority to appoint inferior officers. 3 The FBI Memorandum notes (at page 2) that 15 U.S.C. § 1681v (2006) similarly authorizes the issuance of NSLs to consumer reporting agencies (to obtain full credit reports), but that statute is different from the other NSL statutes insofar as it requires the certifications to be made by a “supervisory official” designated by the head of an agency or another official appointed by the President with the Senate’s advice and consent. Id. § 1681v(b). We understand that, despite this textual difference, the FBI’s policy is to follow the same procedures for issuing NSLs under section 1681v as for other NSLs. 147 33 Op. O.L.C. 146 (2009) tors and Acting Special Agents in Charge to make these certifications. We conclude that it does. As a general rule, “[a]n acting officer is vested with the full authority of the officer for whom he acts.” Acting Officers, 6 Op. O.L.C. 119, 120 (1982); see Keyser v. Hitz, 133 U.S. 138, 146 (1890); Ryan v. United States, 136 U.S. 68, 81 (1890); Commissioners of Soldiers’ Home— Vacancy, 23 Op. Att’y Gen. 473, 475–76 (1901); see, e.g., United States v. McGee, 173 F.3d 952, 955–56 (6th Cir. 1999); United States v. Pellicci, 504 F.2d 1106, 1107 (1st Cir. 1974) (“There is no basis for concluding that one ‘acting’ as Attorney General has fewer than all the powers of that office.”). We assume that Congress legislates with an awareness of this presumption, see Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993), and we therefore construe statutes that authorize officers to perform specified functions as encompassing acting officers, even if the statutes do not expressly name them. See Memorandum for Richard L. Thornburgh, Assistant Attorney General, Criminal Division, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Designation of a Deputy Assistant Attorney General to Act as Assistant Attorney General at 3–4 (Sept. 9, 1975) (“Designation of a Deputy Assistant Attorney General ”); Memorandum for Stephen S. Trott, Assistant Attorney General, Criminal Division, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of Acting Assistant Attorney General to Authorize an Application for a Title III Wiretap at 7 (July 10, 1984) (“Authority of Acting Assistant Attorney General ”). Applying this principle, a 1975 opinion of our Office concluded that the federal wiretap statute, 18 U.S.C. § 2516 (1970), permitted an Acting Assistant Attorney General to authorize wiretap applications, even though the statute provided for authorization by the “[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General.” See Designation of a Deputy Assistant Attorney General at 3, 6. Our opinion was prompted by dicta in United States v. Acon, 513 F.2d 513, 516 (3d Cir. 1975), stating that Acting Assistant Attorneys General could not authorize wiretap applications because the statute did not list them. We disagreed with that view. We argued that Acon had erroneously relied on United States v. Giordano, 416 U.S. 505 (1974), which had held that the Attorney General’s Executive Assistant could not approve a 148 Authority of Acting FBI Officials to Sign National Security Letters wiretap application because the statute did not name the “Executive Assistant” as among the officials to whom the Attorney General could delegate his authority, and the statute’s legislative history revealed an intent to restrict the delegation of authority to a small group of politically responsive, senior Department of Justice officials. See Designation of a Deputy Assistant Attorney General at 2. Giordano was not relevant to the issue at hand, we explained, because whether a power may be delegated to a particular official and whether an acting official may exercise that power are two distinct issues; Acon erred by failing to distinguish between an intent to limit delegation and the “extraordinary” intent “to reverse the normal rule concerning authority of acting officers.” Id. at 4. We noted that reading a delegation limitation to exclude acting officials from a function would substantially expand the restriction with relatively small benefits. Id. Any such exceptions to the general rule about acting officials, we also noted, would impose a significant burden on acting officials by making it difficult to determine which powers of the permanent office they possess. Id. at 6 (citing Pellicci, 504 F.2d at 1107). Thus, although we recognized that “congressional concern for the sensitivity of a function could result in not merely the commitment of that function to particular officials but also in a prohibition against exercise of the function by any acting holders of the named offices,” we concluded that evidence of intent to limit the delegability of a function alone would not show that Congress also intended to preclude acting officials from performing that function. Id. at 4. A 1984 opinion of our Office reaffirmed the conclusions of our 1975 opinion. Nonetheless, we observed that intervening court cases had extended Giordano’s analysis to preclude Acting Assistant Attorneys General from authorizing wiretap applications. See Authority of Acting Assistant Attorney General at 1. We therefore advised caution in pursuing the position that the wiretap statute permitted Acting Assistant Attorneys General to approve wiretap applications. The wiretap statute, however, presented a specialized concern that is not presented by the NSL statutes. As described in Giordano, the legislative history of the wiretap statute revealed congressional intent to limit authority to approve wiretap applications to officials who could be held accountable through the political process, and it suggested that perhaps only Senate-confirmed presidential appointees are politically responsive in the relevant sense. See id. at 2–3 149 33 Op. O.L.C. 146 (2009) (citing Giordano, 416 U.S. at 520 & n.9). Thus, cases such as Acon stated that “an acting assistant attorney general [does not] meet the Supreme Court’s test of political responsiveness.” Acon, 513 F.2d at 516. The NSL statutes, in contrast, expressly authorize the issuance of NSLs by officials who are not Senate-confirmed and arguably are not politically responsive according to Giordano, and the legislative history of the NSL statutes, described in more detail below, does not reveal any special concern about the political accountability of officials who issue NSLs. If the NSL statutes simply named “Deputy Assistant Directors” and “Special Agents in Charge” as among the officials whom the Director could designate to issue NSLs, the presumption about acting officials and our 1975 opinion would lead directly to the conclusion that Acting Deputy Assistant Directors and Acting Special Agents in Charge could sign NSLs. See Designation of Deputy Assistant Attorney General at 5 (“[T]he naming of the office[] goes merely to the level of which delegation is permitted and not to the issue of whether, for an interim period, a temporary holder of that office can perform the delegated function.”). The text of these statutes, however, raises a substantial and difficult question whether “congressional concern for the sensitivity of ” NSL functions has resulted “in a prohibition against exercise of [such] function[s] by any acting holders of the named offices.” Id. at 4. These statutes do not simply name the officials whom the Director may designate to exercise NSL authorities. Instead, they reserve the exercise of NSL functions to the Director “or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” 18 U.S.C. § 2709(b); 12 U.S.C. § 3414(a)(5); 15 U.S.C. § 1681u(a) (emphasis added). This language is unusual and might suggest a congressional intent to limit the exercise of NSL authority to permanent appointees, who, unlike acting officials, perhaps are more fittingly characterized as “in a position.” 4 4 We are aware of two other statutes that use the formulation “in a position not lower than.” See 20 U.S.C. § 1232g( j ) (2006) (authorizing “the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated.by the Attorney General),” to seek an ex parte court order allowing access to educational records in connection with terrorism investigations or prosecutions (emphasis added)); id. § 9573(e) (similar). Neither our Office nor any court has considered the meaning of these provisions. 150 Authority of Acting FBI Officials to Sign National Security Letters II. Statutes about the designation of acting officials typically do not refer to such officials as being “in a position.” The Vacancies Reform Act (“VRA”), for example, says that an acting officer “shall perform the functions and duties” of the vacant office. 5 U.S.C. § 3345(a) (2006). Other statutes use similar language or provide that the acting official shall “serve as” or shall “be” “Acting [Title]” in the event of a vacancy, absence, or disability. See, e.g., 10 U.S.C. § 154(d) (2006) (providing that “the Vice Chairman [of the Joint Chiefs of Staff] acts as Chairman and performs the duties of the Chairman until a successor is appointed or the absence or disability ceases”); 12 U.S.C. § 1462a(c)(3)(B) (2006) (“In the event of a vacancy in the position of Director [of the Office of Thrift Supervision] or during the absence or disability of the Director, the Deputy Director shall serve as Acting Director.”); 18 U.S.C. § 508 (2006) (“In case of a vacancy in the office of Attorney General, or, of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”) (emphases added). The existence of these formulations, however, does not demonstrate that by using the language “in a position not lower than,” Congress sought to preclude Acting Deputy Assistant Directors from exercising NSL functions. Nothing in the statutes speaks directly to the issue of acting officials, and the phrase “in a position not lower than” easily could refer to the level to which the function may be delegated. In light of the distinction we drew in our 1975 opinion between provisions that restrict delegability and those that exclude acting officials from performing a function, and in light of the well-established presumption that acting officials may exercise the same authorities as permanent officeholders, the NSL statutes are best read as placing a limit on delegation, not overturning the ordinary presumption about acting officials. We believe Congress would have spoken more clearly had it intended to preclude acting officials from issuing NSLs. See Designation of a Deputy Assistant Attorney General at 6; Authority of Acting Assistant Attorney General at 7. The legislative history of the NSL statutes generally supports the view that Congress sought to limit the delegation of NSL functions to FBI officials at the level of Deputy Assistant Director or above, rather than to preclude Acting Deputy Assistant Directors from issuing NSLs. As 151 33 Op. O.L.C. 146 (2009) originally enacted, 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u did not expressly limit the class of officials whom the Director could designate to sign NSLs. Instead, 18 U.S.C. § 2709 authorized “[t]he Director . . . (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director)” to make the certifications required for NSLs (Electronic Communications Privacy Act, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986)), and 12 U.S.C. § 3414 and 15 U.S.C. § 1681u provided that “the Director . . . (or the Director’s designee)” could make NSL certifications (Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, § 404, 100 Stat. 3190, 3197 (1986); Intelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93, § 601(a), 109 Stat. 961, 975 (1996)). In the conference reports accompanying 12 U.S.C. § 3414 and 15 U.S.C. § 1681u, however, the conferees stated that the Director should not delegate NSL authority below the level of Deputy Assistant Director. See H.R. Rep. No. 99-952, at 23–24 (1986) (Conf. Rep.) (noting that the conferees had “concluded that, should the Director of the FBI decide to delegate his authority [under 12 U.S.C. § 3414], . . . he should delegate it no further down the FBI chain-of-command than the level of Deputy Assistant Director” (emphasis added)); H.R. Rep. No. 104-427, at 37–38 (1995) (Conf. Rep.) (“As is the case with the FBI’s existing National Security Letter authority . . . , the conferees expect, that if the Director of the FBI delegates th[ese] function[s] under [15 U.S.C. § 1681u], the Director will delegate [them] no further than the level of FBI Deputy Assistant Director.”); see also H.R. Rep. No. 99-690, pt. 1, at 17 (1986) (“The Committee urges that, if the Director of the FBI delegates his function under [12 U.S.C. § 3414], he will delegate it no further down the FBI chain of command than the level of Assistant Director.”). The conference report that accompanied 18 U.S.C. § 2709 does not as clearly reveal a concern about delegability, but it seems likely that Congress viewed this statute and the other NSL statutes as similar. See S. Rep. No. 99-541, at 44–45 (1986) (“It is intended that the [certification] requirement will be determined by a senior FBI official at the level of Deputy Assistant Director or above.”). 5 There is no indication in the legislative history of 18 U.S.C. 5 Congress subsequently codified these restrictions by amending 18 U.S.C. § 2709(b) to provide that the “Director of the [FBI], or his designee in a position not lower than 152 Authority of Acting FBI Officials to Sign National Security Letters § 2709, 12 U.S.C. § 3414, or 15 U.S.C. § 1681u that Congress intended to preclude acting officials from issuing NSLs. The legislative history of the NSL statutes does not reveal anything more than intent to restrict the delegability of NSL functions. That intent does not support a conclusion that Congress meant to preclude Acting Deputy Assistant Directors from exercising NSL functions. In the absence of any evidence in the statutory text or legislative history of “extraordinary” congressional intent to “reverse the normal rule concerning authority of acting officers,” Designation of a Deputy Assistant Attorney General at 4, we conclude that 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u permit Acting Deputy Assistant Directors at FBI headquarters to exercise NSL functions. III. We also conclude that the NSL statutes permit Acting Special Agents in Charge to exercise NSL functions. As a preliminary matter, we note that the language in the NSL statutes, “in a position not lower than,” may not apply to Special Agents in Charge of FBI field offices. It would be awkward and redundant for the NSL statutes to permit NSLs to be signed by the Director’s “designee in a position not lower than . . . a Special Agent in Charge in a Bureau field office designated by the Director.” (Emphasis added.) To avoid surplusage, we could read these statutes as authorizing the exercise of NSL authorities by the director’s (1) “designee in a position not lower than Deputy Assistant Director at Bureau headquarters” or (2) “a Special Agent in Charge in a Bureau field office designated by the Director.” See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). On this reading, because the “in a position not lower than” language would not apply to Special Agents in Charge, they would simply be named among the officials whom the Director could designate to exercise NSL authorities. Under the ordinary presumption about acting officials, therefore, the NSL statutes would authorize Acting Special Agents in Deputy Assistant Director,” may sign an NSL. Pub. L. No.103-142, § 1, 107 Stat. 1491, 1491 (1993). Section 3414 of title 12 and 15 U.S.C. § 1681u were later amended to conform to 18 U.S.C. § 2709. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 505, 115 Stat. 272, 365–66 (2001). 153 33 Op. O.L.C. 146 (2009) Charge to sign NSLs. See Designation of a Deputy Assistant Attorney General at 3–4 (“[T]he description of the class of officials who are authorized to perform certain acts also includes acting officials, even if they are not specifically mentioned[.]”); see also McGee, 173 F.3d at 955–56; Pellicci, 504 F.2d at 1107; Commissioners of Soldiers’ Home—Vacancy, 23 Op. Att’y Gen. 473, 475–76 (1901). Even if the phrase “in a position not lower than” applies to Special Agents in Charge, however, we would still read the statute as limiting delegation only, rather than overturning the presumption that acting officers may exercise the full powers of the offices in which they temporarily serve. Like the legislative history discussed above, the legislative record behind the addition of Special Agents in Charge to the NSL statutes does not show any congressional concern about the issuance of NSLs by acting officials. When Congress added Special Agents in Charge to the NSL statutes, it sought to expand, not restrict, the class of officials who may be authorized to issue NSLs. In 2001, Congress amended the NSL statutes to permit the Director to designate a “Special Agent in Charge in a Bureau field office,” in addition to headquarters officials at the level of Deputy Assistant Director or above. Pub. L. No. 107-56, § 505, 115 Stat. at 365–66. In hearings on the proposed legislation, a Department of Justice official explained that the proposed amendment would “allow special agents in charge—that is, the top-ranking FBI field agent in each of the FBI’s 56 field offices—to issue one of these letters rather than requiring the letter to be sent out by an Assistant Director at headquarters.” S. 1448, The Intelligence to Prevent Terrorism Act of 2001 and Other Legislative Proposals in the Wake of the September 11, 2001 Attacks: Hearing Before the S. Select Comm. on Intelligence, 107th Cong. 24 (2001) (statement of David Kris, Associate Deputy Attorney General). A section-by-section analysis similarly explained that, “because [NSLs] require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. . . . In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority.” Administration’s Draft AntiTerrorism Act of 2001: Hearing Before the H. Comm. on the Judiciary, 107th Cong. 57–58 (2001). In view of the statutory presumption about acting officials and this indication of congressional intent to expand the 154 Authority of Acting FBI Officials to Sign National Security Letters class of officials who may issue NSLs, we think that 18 U.S.C. § 2709, 12 U.S.C. § 3414, and 15 U.S.C. § 1681u permit Acting Special Agents in Charge to sign NSLs. 6 DANIEL L. KOFFSKY Deputy Assistant Attorney General Office of Legal Counsel It might be argued that Acting Deputy Assistant Directors and Acting Special Agents in Charge should not be permitted to issue NSLs under the NSL statutes because the Director could designate relatively low-level employees to serve in these roles. See 136 Cong. Rec. 35,806, 35,817 (Oct. 26, 1990) (statement of Sen. Boren) (introducing amendment to NSL statutes that “adds the requirement that the Director’s designee be of at least the rank of Deputy Assistant Director . . . due, in part, to the finding that critical decisions [concerning NSLs] were made at low levels at FBI Headquarters”). We do not think this possibility undermines our interpretation of the NSL statutes. Congress vested the authority to issue NSLs in Deputy Assistant Directors and Special Agents in Charge designated by the Director, and there is no indication of congressional intent to preclude issuance of NSLs by officials acting in these positions. Moreover, as the FBI Memorandum notes (at pages 1 and 7), the Director selects permanent and acting Deputy Assistant Directors and Special Agents in Charge from the same pool of FBI employees (special agents and members of the FBI Senior Executive Service). This practice further supports the view that the issuance of NSLs by Acting Deputy Assistant Directors and Special Agents in Charge should not raise any special concern under the NSL statutes. 6 155

Write a legal research memo on the following topic.

Presidential Succession and Delegation in Case of Disability [The follow ing m em orandum discusses issues relating to presidential succession and dele­ gation o f presidential pow er in the event o f a tem porary disability o f the President. It examines the mechanism established by the T w enty-F ifth A m endm ent by w hich the V ice President assumes the pow ers and duties o f the Office o f the President, and the conditions under w hich the President resum es his Office after his disability is ended. It also examines the circum stances in w hich the President may delegate his pow ers to o ther officials, including the V ice President, w hen it is not considered necessary or appropriate to invoke the provisions o f the T w enty-F ifth A m endm ent. It concludes that functions vested in the President by the C onstitution are generally not delegable and must be perform ed by him; how ever, any pow er vested in the President by statute may be delegated to subordinate officers, unless the statute affirm atively prohibits such delegation. Finally, the m em orandum briefly review s the form and m ethod o f delega­ tion. A n appendix contains a historical sum m ary o f p rio r presidential disabilities and the resulting effect on presidential authority.] April 3, 1981 M EM ORANDUM FO R T H E ATTO RN EY G E N E R A L As a result o f the recent assassination attempt on President Reagan, this Office has researched several issues that relate to presidential suc­ cession and the delegation of presidential power in the event of a temporary disability of the President. This memorandum sets forth our conclusions on the relevant legal issues. I. Presidential Succession The Twenty-Fifth Amendment to the U.S. Constitution establishes a mechanism for presidential succession in the event that the President becomes unable to perform his constitutional duties. Succession may take place in tw o ways. First, if the President is able and willing to do so, he may provide for the temporary assumption of the powers and duties of his office by the Vice President by “transmit[ting] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office.” U.S. Const., Amend. XXV, §3. When the President transmits such a declaration, his powers and duties devolve upon the Vice President as Acting President1 until the Presi’There appears to be no requirement that the Vice President resign from his position as Vice President or take the President's oath of office to serve as “ Acting President.” As a general rule, an Continued 91 dent transmits an additional written declaration stating that he has become able to perform his responsibilities. Second, if the President is unable or unwilling to transmit a declara­ tion o f his inability to perform his duties, the Vice President will become Acting President 2 if the Vice President and a majority of the “principal officers of the executive departments” transmit to the Presi­ dent pro tem pore of the Senate and the Speaker of the House a written declaration that the President is unable to discharge the powers and duties o f this Office. See U.S. Const., Amend. XXV, §4. The term “principal officers of the executive departments” is intended to mean “the Cabinet,” although the term “Cabinet” has no precise legal defini­ tion.3 If, during the period in which the Vice President is Acting President, pursuant to the provisions of Section 4 of the Twenty-Fifth Amend­ ment, the President submits to the President pro tempore of the Senate and the Speaker of the House a written declaration that no inability exists, he will resume the powers of his office unless, within four days, the Vice President and a majority of the Cabinet heads transmit an addi­ tional written declaration stating that the President is unable to dis­ charge his powers and duties. A t that point, Congress must decide the official w ho is “acting” in a certain capacity need not vacate the office previously held or take the oath o f office ordinarily taken by th e person whose duties he has temporarily assumed This conclu­ sion is supported by Presidential Inability and Vacancies in the Office o f Vice President: Hearings Before the Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong., 2d Sess 215, 232 (1965); Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong., 1st Sess 87 (1965). See also J. Feerick, The Twenty-Fifth Amendment, 199 (1976) (Feerick) T he rule as to resignation a n d /o r taking the President’s oath appears to be different for those officials further dow n the line o f succession See 3 U.S.C. § 19. This memorandum does not address the issues involved in the devolution of powers beyond the position of Vice President. 2 T he Vice President will evidently continue to exercise the duties of Vice President while he serves as Acting President. The V ice President would, however, lose his title as President of the Senate. See 111 Cong. Rec. 3270 (1965) (Sen. Saltonstall); Feerick at 199 3 See S. Rep. No. 66, 89th Cong., 1st Sess. 2 (1966) We believe that the “ principal officers of the executive departm ents,” for purposes of the Twenty-Fifth Amendment, include the Secretary of State, Secretary o f Treasury, Secretary o f Defense, A ttorney General, Secretary of the Interior, Secretary of Agriculture, Secretary o f Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary o f Housing and Urban Development, Secretary of Transportation, Secretary o f Energy, and Secretary o f Education. That conclusion is supported by the legislative history See 111 Cong. Rec. 7938 (1965) (Rep. Waggoner); id. at 7941 (Rep Poff); id. at 7944-45 (Rep. Whitener); id. at 7953, 7954 (Rep. Gilbert). See also Feerick at 202-03; 5 U S.C. § 101. As a practical matter, and in order to avoid any doubt regarding the sufficiency o f any given declaration, it would be desirable to obtain the assent o f a sufficient number of officials to satisfy any definition o f the term “ principal officers of the executive departm ents.” T here is some indication that acting heads o f departments may participate in the presidential disability determination. Although th e legislative history is conflicting, the House Judiciary Commit­ tee's report supports this conclusion, see H R. Rep No. 203, 89th Cong., 1st Sess. 3 (1965), as do the Senate debates, see 111 Cong. Rec. 15,380 (1965) (Sen. Kennedy); id. at 15,583 (1965) (Sen. Javits); and a leading com m entator on the Amendment reaches the same conclusion. See Feenck at 203. Contra, 111 Cong Rec. 3284 (1965) (Rep. Hart). The contrary view proceeds on the assumption that such a decision should be made only by persons whom the President personally selected for his Cabinet. Such persons are presumably intimately familiar with the President and are of relatively equal status with the other decisionmakers. 92 issue within specified time limits. See U.S. Const., Amend. XXV, §4, para. 2.4 II. Presidential Delegation Under circumstances in which it is not considered necessary or appropriate to invoke the provisions of the Twenty-Fifth Amendment, it may nonetheless be desirable for the President to delegate certain powers to other officials, including the Vice President. Under statute, 3 U.S.C. § 301, and under the Constitution, see Myers v. United States, 272 U.S. 52, 117 (1926), the President has broad authority to delegate functions vested in him by law. At the same time, the Constitution and certain statutory provisions impose limits on the President’s power to confer his authority on subordinate officials. The nature and extent of those limits are considered in this section. A. Constitutional Limitations on the President’s Power to Delegate His Functions As early as 1855, Attorney General Cushing articulated the general rule that the functions vested in the President by the Constitution are not delegable and must be performed by him. 7 Op. A tt’y Gen. 453, 464-65 (1855). The Attorney General opined: Thus it may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offenses against the United States, not another man, the Attorney General or anybody else, by delegation of the President. So he, and he alone, is the supreme commander-in-chief of the Army and Navy of the United States, and of the militia o f the several States, when called into the actual service o f the United States. That is a power constitution­ ally inherent in the person of the President. No act of 4 Under the Amendment, we believe that there is no requirement that the requisite written declara­ tions of disability be personally signed by the Vice President and a majority of the heads of executive departments. The only requirements are that their assent to the declaration be established in a reliable fashion and that they direct that their names be added to the document. Moreover, the Vice President and the Cabinet heads may send separate declarations if necessary. See Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong., 1st Sess 79-80 (1965). Finally, we believe that under both §§ 3 and 4 o f the Amendment, the transfer o f authonty to the Vice President takes effect “immediately" when the declaration is transmitted or sent, and is not delayed until receipt of the document by the President pro tempore of the Senate and the Speaker of the House. Although the question is not free from doubt, the language and the history of the Amendment tend to support this conclusion. See S. Rep. No 66, 89th Cong., 1st Sess. 12-13 (1965); H.R. Rep. No 203, 89th Cong., 1st Sess. 13 (1965). But see H.R. Rep. No. 564, 89th Cong., 1st Sess. 3 (statement of Managers on the Part of the House to the effect that “after receipt of the President’s written declaration of his inability.. . . such powers and duties would then be discharged by the Vice President as Acting President”) The better construction would allow the devolution of powers “immediately” (the w ord used in § 4 o f the Twenty-Fifth Amendment) upon transmittal No meaningful purpose would be served by awaiting the arrival of the document. The alternative construction allows a more rapid transition of presidential power when the national interests require it. 93 Congress, no act even o f the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President. So he appoints and removes ambassadors and other officers o f the United States, in the cases and with the qualifications indicated by the Constitution. So he approves or disapproves of bills which have passed both Houses of Congress: that is a personal act of the President, like the vote o f a Senator or a Representa­ tive in Congress, not capable of performance by a Head of Department or any other person. A study prepared by this Office in the 1950s reaches the same conclusions. This study and our research suggest that the following are nondelegable functions o f the President: 1. The power to nominate and appoint the officers of the United States to the extent provided in Article II, § 2, clause 2 o f the Constitution. 2. The power to approve or return legislation pursuant to Article I, § 7, clauses 2 and 3, and the power to call Congress into special session or to adjourn it according to Article II, § 3. 3. The power to make treaties by and with the advice and consent o f the Senate. U.S. Const., Art. II, § 2, cl. 2. It should be noted, however, that the power to negotiate treaties and the power to enter into executive agree­ ments may be delegated. See 7 Op. A tt’y Gen., supra, at 465. 4. The power to grant pardons. U.S. Const. Art. II, §2, cl. 1. 5. The power to remove purely executive presidential ap­ pointees. This power is vested in the President as an incident o f his appointment power. Myers v. United States, 272 U.S. at 119. 6. T he power to issue executive orders. Only the President can issue formal executive orders and proclamations. He can, however, delegate the power to issue many orders which cover substantially the same subject matter as executive orders and proclamations as long as they are not so named. 7. T he powers of the President as Commander-in-Chief of the Army and Navy. U.S. Const., Art. II, § 2, cl. 1. In view of Article I, § 8, clauses 12 and 13, which state that Congress shall have the power to raise and support 94 the Army and to provide and maintain a Navy, many of the President’s powers as Commander-in-Chief are statutory in part. To conclude that the President may not delegate his ultimate constitutional responsibilities as Commander-in-Chief is not to suggest that he is the only officer of the government who may make military decisions in time of emergency, when immediate re­ sponse may be necessary. The President may make formal or informal arrangements with his civilian and military subordinates, in order to ensure that the chain of command will function swiftly and effectively in time of crisis. O f course, every military officer must be sub­ ordinate to the President. B. Statutory Limitations on the President’s Power to Delegate His Functions The foregoing discussion sets forth the general rule that the President may not delegate inherent powers that are conferred on him by the Constitution. On the other hand, he may generally delegate powers that have been conferred on him by Congress. Congress has so provided in 3 U.S.C. § 301, which states: The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any func­ tion which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President o f his responsibility in office for the acts of any such head or other official designated by him to perform such func­ tions. Such designation and authorization shall be in w rit­ ing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part. Congress has further provided, in 3 U.S.C. § 302, that: The authority conferred by this chapter shall apply to any function vested in the President by law if such law 95 does not affirmatively prohibit delegation of the perform­ ance of such function as herein provided for, or specifi­ cally designate the officer or officers to whom it may be delegated. This chapter shall not be deemed to limit or derogate from any existing or inherent right of the Presi­ dent to delegate the performance of functions vested in him by law, and nothing herein shall be deemed to re­ quire express authorization in any case in which such an official would be presumed in law to have acted by au­ thority or direction of the President. As a result o f these statutes, the President is authorized to delegate any pow er vested in him by statute unless the statute “affirmatively prohibits] delegation.” In our view, a statute should be construed as an “affirmative” prohibition o f delegation only if it prohibits delegation expressly or by unmistakable implication. T he purpose of §§ 301 and 302 is to facilitate the functioning o f the Executive by specifically authorizing delegation in the great majority o f cases. To this end, § 301 states a general rule in favor of delegation. In light of the breadth of this general rule, the exception in § 302 should be narrowly construed. The same inference can be drawn from the fact that Congress took care in § 302 not to derogate from any “existing or inherent right of the President to delegate the performance of functions vested in him by law .” Statutes which do expressly or by unmistakable implication prohibit delegation are subject to the possible constitutional objection that the pow er to delegate is inherent in the Executive and may not be re­ stricted by Congress. T he issue is a difficult one and has never been resolved in court. In our view, the wiser course is to comply with any clear congressional intention to prohibit delegation, in order to avoid testing the limits of this constitutional question, unless circumstances imperatively require delegation. In the brief time we have had to review the matter, we have discov­ ered only a very few statutes that expressly or by unmistakable implica­ tion prohibit delegation. W hat follows is a description of categories of statutes that fall o r may fall within this general class. 1. Statutes Explicitly Prohibiting Delegation T he clearest cases are those in which the statute explicitly prohibits delegation. An example is found in the Export Administration A ct of 1979, 50 U.S.C. § 2403(e) (Supp. Ill 1979), which provides that: T he President may delegate the power, authority, and discretion conferred upon him by this A ct to such depart­ ments, agencies, or officials of the Government as he may consider appropriate, except that no authority under this 96 A ct may be delegated to, or exercised by, any official of any department or agency the head of which is not ap­ pointed by the President, by and with the advice and consent of the Senate. The President may not delegate or transfer his power, authority, and discretion to overrule or modify any recommendation or decision made by the Secretary [of Commerce], the Secretary of Defense, or the Secretary of State pursuant to the provisions of this Act. 2. Statutes Conferring Nondelegable Functions An unmistakable congressional intent to prohibit delegation may also be inferred from statutes that impose on the President a duty o r power to exercise a nondelegable function. For example, it is commonly thought that only the President may issue an executive order o r procla­ mation. Statutes that authorize the President to take an action, but require him to act by way of executive order or proclamation, can therefore be read as precluding delegation. An example is found in 22 U.S.C. § 441(a): Whenever the President . . . shall find that there exists a state of war between foreign states, and that it is neces­ sary to promote the security or preserve the peace of the United States or to protect the lives of citizens of the United States, the President shall issue a proclamation naming the states involved; and he shall, from time to time by proclamation, name other states as and when they become involved in the war. 3. Statutes Implicitly Prohibiting Delegation A broad range of statutes confer powers on the President but do not state in terms or in the legislative history whether those powers are delegable. In some instances, the character or importance of the powers in question, or other special circumstances, may constitute a sufficient indication of a legislative intent to prohibit delegation. In the brief time available, we have been unable to reach any firm conclusions regarding particular statutes in this category. In general, it would appear that statutory powers that have been exercised by the President himself on a consistent and longstanding basis are more likely than others to be held nondelegable. An example might be the Presi­ dent’s statutory power to enter into or terminate trade agreements with certain nations under 19 U.S.C. § 1351. 97 A second special circumstance that can give rise to an inference of nondelegability occurs when Congress gives authority to an agency but subjects that authority to a requirement of presidential approval. In this circumstance, it can be argued that a delegation o f the President’s approval authority back to the agency would subvert the evident legis­ lative intent to assure review by someone outside the agency, while a delegation to anyone else would conflict with the congressional intent to centralize primary administrative responsibility in the agency. For an example o f such a statute, see § 12(k) o f the Securities Exchange Act of 1934, 15 U.S.C. § 781(k).5 III. Delegable Fumctioms All remaining functions o f the President may be delegated to subordi­ nate officers. M any statutes explicitly authorize delegation. See, e.g., 22 U.S.C. § 2381 (delegation o f certain foreign affairs powers). In the absence o f specific authorization, the general delegation statute, 3 U.S.C. §§301, 302, explicitly authorizes delegation except where pre­ cluded by statute. It is beyond the scope o f this memorandum to describe the full extent o f the presidential powers and responsibilities that may be delegated.6 In general, powers which may be delegated include those o f approval, authorization, and assignment; powers to establish and convene certain administrative commissions, to designate responsible officers, and to make certain factual determinations; powers to direct that certain actions be taken, to fix compensation of officers, to prescribe certain rules and regulations, and to make recommenda­ tions or reports. It bears repetition that the President may not delegate his power to delegate his own functions. This is, in our view, a function that is constitutionally vested in the President personally. The President may delegate his powers if he is capable o f a conscious decision to do so. If, how ever, he is incapable o f such a decision, delegation cannot occur. If such a situation continues for a substantial period o f time, it would appear desirable to initiate procedures for presidential succession under the Tw enty-Fifth Amendment.7 5 W e emphasize that the above examples are entirely tentative; it may well be that, upon further examination o f the statutes and their legislative histories, this Office would conclude that Congress did not intend to prohibit delegation. 6 F o r a description o f the President’s general authonty, see President's Advisory Council on Executive Organization, The Powers and Responsibilities of the President (1970). 7It might be possible for the President to delegate his powers contingent upon the occurrence o f a specified event such as a certification by the President’s personal physician that the President is tem porarily incapable o f making a conscious decision. We would emphasize, however, that this procedure should not be used if its effect is contrary to the intent of the procedures for presidential succession contained in the Twenty-Fifth Amendment. 98 IV. Form and Method of Delegation W henever a presidential function or power is delegable, it may be delegated to the head of any department or agency in the Executive Branch, or any official thereof, if the official is appointed with the advice and consent of the Senate. 3 U.S.C. §301. By statute, such a delegation is ordinarily accomplished through the preparation and pub­ lication o f a written order or memorandum. The relevant document is normally signed by the President personally; but there is no express statutory requirement to that effect. In our opinion, the relevant statu­ tory requirements are satisfied as long as the President actually makes the delegation in question and causes an appropriate written memorial to be prepared and published. He need not sign the document by his own hand. See United States v. Fletcher, 148 U.S. 84-92 (1893); 7 Op. A tt’y Gen. at 472-73 (1855); 22 Op. A tt’y Gen. 82, 84 (1898). More­ over, the statute does not purport to restrict the President’s constitu­ tional power to delegate his powers and functions. 3 U.S.C. § 302. We believe that a President may determine in an exigent circumstance that it is necessary to delegate a power or function without immediate compliance with the normal formal requisites (i.e., publication of a written document). Such a delegation is effective if it is necessary to enable the President to discharge his constitutional duty. T heodore B. O lso n Assistant Attorney General Office o f Legal Counsel Attachment 99 APPENDIX P r io r P r e s id e n t ia l D is a b il it ie s This is a summary of prior presidential disabilities and the resulting effect on presidential authority.1 1. James Madison suffered from a severe fever in the summer of 1813 in the midst o f disputes w ith Congress on how to pay for the W ar of 1812. I. Brant, James Madison: Commander-in-Chief, 1812-1836, at 184-94 (1961). Daniel W ebster reported at one point that Madison was too weak to read resolutions brought to his bedside. Id. at 186-87. Both Houses of Congress became “engrossed” for over a month in specula­ tion on the succession,2 since the Vice President was aged and there was a vacancy in the position of President pro tempore of the Senate. J. Feerick, T he Twenty-Fifth Amendment 4-5 (1976) (Feerick). Madison recovered, however, and no legislation was passed nor were formal arrangements for the delegation or transfer of power implemented. 2. William Henry Harrison was inaugurated on M arch 4, 1841, and died o f pneumonia on A pril 4, 1841. His illness was so short that the question of inability apparently did not arise.3 3. James A. Garfield was wounded on July 2, 1881, by an assassin and died 80 days later on September 19, 1881. Vice President Chester A. A rthur did not act in his stead. A rthur refused to do so because of a fear, shared by many constitutional scholars of the time, that once he had assumed the powers and duties o f the office, they would “devolve on the Vice President” permanently, leaving him unable to turn the reins back to the President. U.S. Const., Art. II, § 1, cl. 6. See S. Rep. M a te ria l consulted included the N.Y. Times, S. Rep. No. 66, 89th Cong., 1st Sess. (1965), and hearings held in 1958. Presidential Inability: Hearings on S.J. Res. 100, S.J. Res. 133, S.J. Res. 134, S.J. Res. 141, S.J. Res. 143, S.J Res. 144, S. 238, and S. 3113 Before the Subcomm. on Constitutional Amendm ents o f the Senate Comm, on the Judiciary, 85th Cong., 2d Sess. (1958) [hereinafter cited as 1958 Hearings]. A list o f articles on presidential inability can be found in the 1958 Hearings, at 41-42. 2 T he first succession act was passed in 1792. A ct of M arch 1, 1792, §§9-11, 1 Stat. 239. Unsuccessful efforts to change this statute occurred in 1820, 1856, and 1881. 3 W hen Harrison died, Secretary of State Daniel Webster questioned whether the Constitution meant that Vice President John T yler became “A cting President,” rather than the President. Tyler disagreed and took the oath as President, thus establishing the MTyler precedent” that the Vice President does succeed to the Office o f the President when the prior occupant dies. 1958 Hearings at 149. T he deaths o f Z achary Taylor (July 9, 1850) and Abraham Lincoln (April 15, 1865) were appar­ ently so swift that their Vice Presidents (Millard Fillmore, Andrew Johnson) assumed control without trouble. Feerick at 7-8. 100 No. 66, 89th Cong. 1st Sess. 6 (1965) (1965 Senate Report). Although the entire Cabinet believed Garfield to be unable to carry out his duties,4 four of them, including the Attorney General, agreed with A rthur’s analysis. Secretary of State James G. Blaine was in fact criti­ cized for attempting to usurp presidential powers during Garfield’s lengthy illness. 1958 Hearings at 149-50.5 4. G rover Cleveland had two major operations for cancer of the mouth in July 1893. He told almost no one, including Vice President Adlai Stevenson. The two operations took place on a friend’s yacht, with Cleveland unconscious and strapped to a chair propped against the mast. Feerick at 11-12. The complete secrecy was due to fears that the country might suffer an economic panic if it knew the President had cancer. The truth was apparently suppressed until 1917. Feerick at 12.6 5. William McKinley was wounded on Friday, September 6, 1901. He underwent emergency surgery and his doctors issued optimistic statements about his recovery. So positive was the outlook that Vice President Theodore Roosevelt and the Cabinet members who had gath­ ered in Buffalo over the weekend began to disperse. M. Leech, In the Days of McKinley 598-99 (1959). “[T]he Vice-President was so firmly convinced that the emergency was over that he went to join his family at a camp in the Adirondacks, twelve miles from telegraph or tele­ phone.” Id. at 599. When McKinley began to fail, a guide was sent up into the mountains to fetch Roosevelt. Although he rushed back, Roosevelt arrived to take the oath of Office 12 hours after M cKinley’s death on September 14. 6. W oodrow Wilson was incapacitated from a stroke for about eight months of his second term. A t no time did Vice President Thomas R. Marshall attempt to take over. See 1958 Hearings at 19. The hesitation was due to a fear that such action would be viewed as an effort to oust Wilson permanently. When he recovered, Wilson forced Secretary of State Lansing, who had called Cabinet meetings and suggested that Marshall take over as Acting President, to resign, charging him with disloyalty. Id. 1. Franklin Roosevelt was in declining health during his last year in office, and died on April 12, 1945. Vice President Harry S. Truman had had only tw o conversations with Roosevelt since the inauguration, neither dealing with disability. Feerick at 17. Perhaps as a reaction to this, Truman supported a new succession statute, A ct of June 25, 1948, Pub. L. No. 80-771, 62 Stat. 672, 677-78 (1948). 4 Garfield was able to conduct only one minor piece of business—the signing of an extradition paper Feerick at 9 8 Arthur, who succeeded Garfield, suffered from an increasingly debilitating kidney disease while in office. Although he gradually reduced his schedule, he does not appear to have become completely incapacitated. Feerick at 10-11. 6 It was the death of Cleveland’s first Vice President, Thomas A. Hendricks, in 1885, while Congress was out o f session, which accelerated passage of the Presidential Succession Act, Pub. L. No. 49-1, 24 Stat. 1 (1886) 101 8. D w ight D. Eisenhower suffered three major illnesses while in office—a heart attack (1955), ileitis (1956), and a “mild” stroke (1957). From the first, Vice President Richard Nixon consulted with the Cabi­ net and developed a procedure for relaying important matters to the President. A W hite House request for an opinion on the temporary delegation o f presidential power was not acted upon because Attorney General Brownell felt there were sufficient legal arrangements in place to handle day-to-day operations. Eisenhow er was very troubled by the implications of the disability problem during each of his illnesses. He asked the Department of Justice to study the problem and recommend a solution, urged Con­ gress to act, and entered into an informal agreement with Mr. Nixon. Feerick at 20-22. The agreement provided that: 1. In the event of inability the President would—if possible—so inform the Vice President, and the Vice President would serve as Acting President, exercising the powers and duties of the office until the inability had ended. 2. In the event o f an inability which would prevent the President from so communicating with the Vice Presi­ dent, the Vice President, after such consultation as seems to him appropriate under the circumstances, would decide upon the devolution of the powers and duties of the office and would serve as Acting President until the inability had ended. 3. The President, in either event, would determine when the inability had ended and at that time would resume the full exercise o f the powers and duties of the Office. 1965 Senate Report at 7 .7 Although Congress did hold hearings, no perm anent action was taken.8 9. Lyndon B. Johnson was hospitalized four times, the first time being for a major bout w ith the flu (January 23-27, 1965).9 In October 1965, Johnson was hospitalized for gall bladder surgery.10 He was 7See also N.Y. Times* March 4, 1958, at 1, col. 2. Presidents Kennedy and Johnson entered into similar agreements with their Vice Presidents. 1965 Senate Report at 7. N.Y. Times, Jan. 28, 1965, at 13, col. 1. T he Johnson-Humphrey agreement was identical to the Eisenhower-Nixon agreement. The Kennedy agreem ent differed only in that it urged the Vice President to consult with the Cabinet and the A ttorney General i4as a matter o f wisdom and sound judgm ent.” 1965 Senate Report at 7. 8See 1958 Hearings, supra, and Hearings before the Special Subcommittee to Study Presidential Disability o f the House Committee on the Judiciary, 84th Cong., 2d Sess. (1956). 9 A t the time, Vice President H ubert H Humphrey stated that there had been discussions of when he w ould take over and a copy of the Johnson-Humphrey accord was made available to the press on January 28. See note 7, supra, and text. 10T he accord was again noted by the press and columnist A rthur Krock urged the states to ratify the T w enty-Fifth Amendment. 102 anesthetized for three to four hours, after which Press Secretary Moyers announced that Johnson was again able to make presidential decisions.11 The same pattern was repeated in November 1967, when Johnson underwent simultaneous surgery for a polyp on his vocal cord and repair of a ventral hernia. He was anesthetized for about an hour and a half. Note was made of the agreement that could make Humphrey “Acting President” and columnist Tom Wicker urged that the TwentyFifth Amendment be ratified. In December 1968, Johnson was again hospitalized for the flu. The papers, however, said little other than that he worked on government papers on one day of his stay. 10. Richard M. Nixon was hospitalized from July 12-20, 1973, for viral pneumonia. The President’s press office said that he would be able to do necessary work and that he was not sick enough to require the Vice President to make special arrangements. In an interview, Vice President Spiro T. Agnew said that there was no agreement between the President and him on what to do in the event of Nixon’s disability and that the issue had never been discussed. Although there were persistent rumors about Nixon’s health during the months prior to his resignation, the only White House announce­ ment was an acknowledgment that the President suffered from phlebi­ tis. The operation on his leg did not occur until September 23, 1974, after his resignation. 11. Jimmy Carter’s scheduled surgery for hemorrhoids in late De­ cember 1978, was cancelled. Preparations for the Vice President to assume power under § 3 of the Twenty-Fifth Amendment were also cancelled. L arry L . S im m s Acting Assistant Attorney General Office o f Legal Counsel 11 Citing recent history, Johnson had urged Congress to act on the disability problem in his State of the Union address in January, 1965. The proposed Twenty-Fifth Amendment was sent to the states in July 1965. 103

Write a legal research memo on the following topic.

Reimbursing Justice Department Employees for Fees Incurred in Using Private Counsel Representation at Congressional Depositions T h e D e p a r tm e n t o f J u s tic e may re im b u rs e its e m p lo y e e s fo r le g a l fe e s th e y in c u r in u s in g p riv a te c o u n s e l r e p r e s e n ta tio n at c o n g re ss io n a l d e p o s itio n s in c irc u m s ta n c e s w h e re th e D e p a rtm e n t w a s p la n n in g to p ro v id e D e p a rtm e n t c o u n se l fo r o ffic ia l c a p a c ity te s tim o n y b u t th e c o n g re s ­ s io n a l c o m m itte e re fu s e d to p e r m it D e p a rtm e n t c o u n se l to b e p re sen t. T h e D e p a r tm e n t s h o u ld m ak e in d iv id u a liz e d in q u irie s to d e te rm in e w h e th e r th e re p re s e n ta tio n o f p a r tic u la r e m p lo y e e s in clu d es re p re s e n ta tio n o f p u re ly p e rs o n a l in te re s ts th a t s h o u ld n o t be re im b u r s e d . September 27, 1990 M e m o r a n d u m O p in io n f o r t h e D e p u t y a t t o r n e y G e n e r a l You have asked for our opinion as to whether the Department may reim­ burse Department employees for legal fees they incur in using private counsel representation at depositions that are part of the investigation by the House Judiciary Committee into the Department’s automated data processing pro­ curem ent practices.1 For the reasons set forth below, we conclude that the Department may reimburse the employees. You have not asked us to make the individualized inquiries necessary to determine whether the representa­ tion o f particular employees includes representation o f purely personal interests that should not be reimbursed. We do note, however, that we are unaware at this time of any such interests. The Civil Division concurs in the analysis and conclusions contained in this opinion. I. Background The House o f Representatives Committee on the Judiciary is conducting an extensive oversight investigation into the Department’s automated data processing (“ADP”) procurement practices, with particular attention to the Inslaw and Project Eagle procurements.2 Early in its investigation, the Com­ m ittee requested interviews of D epartm ent em ployees concerning the 1T h is o p in io n d o e s not ap p ly to the sp ec ia l c ircu m stan ces o f a form er D epartm ent e m ployee w ho is c u rre n tly the su b jec t o f an Inspector G e n eral investigation. 2 B e c a u se th e p rin c ip a l focus of the in v estig atio n is on the Inslaw p rocurem ent, w e w ill re fe r to the in v e stig a tio n as th e “ In slaw in vestigation.” 132 Departments handling of these procurements. In light o f the oversight pur­ pose of the interviews (i.e., to obtain information from the Department in order to determine what legislative action, if any, Congress should take with respect to the Department’s ADP procurement practices), the Department determined that it was in the Department’s interests to make the employees available for the interviews. For the same reasons, the Department treated the interviews as being given in the employees’ official rather than individual capacities and applied its longstanding policy that when Department employees are asked in their official capacities to give oral testimony for a congressional investigation (whether at a hearing, interview or deposition), a Department counsel or other representative will normally accompany the witness. When the De­ partment informed the Committee of its interest in having Department counsel present during the interviews, the Committee objected, stating that the De­ partm ent presence would represent a conflict of interest and it might discourage the employees from speaking candidly or otherwise have a “chill­ ing effect” on them. After a period of discussion, the Committee and the Department reached agreement on the conditions of the employee interviews, with the Depart­ ment acquiescing to the committee’s insistence that the interviews take place without Department counsel being present. The Department made it clear that its agreement to make an exception to the longstanding Department policy was based on the specific circumstances of the Inslaw investigation and that these interviews should not be viewed as precedent for future over­ sight investigations of the Department by the Committee. The Committee staff proceeded to interview the employees without Department (or any other) counsel present. Subsequently, the Committee informed the Department of its intention to conduct depositions of certain Department employees. The depositions were to differ in form from the previously conducted interviews principally in that the witnesses would testify under oath and the testimony would be recorded. In light of these differences, the Department gave renewed con­ sideration to whether it should adhere to the longstanding Department policy and insist that Department counsel be present at the depositions. When the Department preliminarily raised its concerns with the Committee, the Com ­ mittee indicated that it would adhere to its prior position of not permitting Department counsel to be present and that it was prepared to subpoena the employees (in which case, it asserted, the House rules would only allow private counsel to be present to advise the witness of his constitutional rights). You then decided that the Departm ent would again acquiesce to the Committee’s position and not insist that Department counsel be present but that if any employee wanted counsel at his deposition, the employee could retain private counsel and the Department would reimburse the employee. Your decision that the Department would reimburse employees for their private counsel fees was based on the specific circumstances presented. These 133 circumstances include that the Committee is not permitting the Department to adhere to its longstanding policy of providing Department counsel when employees give congressional testimony in their official capacities, that it is not fair to expect employees to pay for private counsel when testifying in their official capacities, that there are no pending criminal investigations involving the employees, and that there is no other divergence between the interests of the Department and the employees. At the time you made your decision, the Civil Division and this Office had orally advised you that the Department has legal authority to make such reimbursement. You have asked that this advice be confirmed in a written opinion from this Office. We have prepared this opinion in consultation with the Civil Division. II. Discussion The vast majority of Department reimbursements of private counsel fees involve payment, pursuant to the Department’s representation guidelines, to em ployees who seek representation in their individual capacity; in these cases the acts being questioned are within the scope of the employees’ em­ ployment but the Department has some conflict of interest. On rare occasions reimbursement has also been made for employees who need representation in their official capacities but for institutional reasons the Department must seek to represent them indirectly through reimbursed private counsel. The present situation is one of the latter occasions, due to the refusal of the Judiciary Committee to permit the Department to follow its longstanding policy that Department counsel should be present at official capacity testi­ mony for congressional investigations.3 The general principles on Departmental authority that apply in these cir­ cumstances are well established: ’ F o r y o u r in fo rm a tio n , the D epartm ent’s rep resen tatio n g u id elines a re inapplicable here b ecau se they only g o v e rn the legal representation o f em p lo y ees “ sued or subpoenaed in [their] indi­ vidual capacities." 2 8 C .F R . § 50 .1 5 (a). R ep resen tation o f em ployees in th e ir offi­ cial capacities is provided autom atically, w ithout reference to the representation guide­ lines. S in ce su its o r subpoenas a g ain st em p lo y ees in their o fficial capacities are tanta­ m o u n t to su its o r subpoenas a g a in st the g o v ern m en t itself, o fficial capacity re p re sen ­ ta tio n is v irtu ally alw ays p ro v id e d by g o v ern m en t attorneys. By contrast, w hen an e m p lo y e e is sued o r subpoenaed in his individual capacity, th e re is the po ten tial fo r c o n flic t b e tw ee n th e individual interest o f the em p loyee a n d the interests o f other e m p lo y e es. . . . [T he] rep resen tatio n guid elin es are d e signed to set stan d a rd s for d e te rm in in g I) w h e th er to p ro v id e individual cap a c ity r e p re s e n ta tio n ,. . . and if so. 2) w h e th e r to p ro v id e that rep resen tatio n by g o v ern m en t counsel or by priv ate counsel re ta in e d a t g o v e rn m e n t expense. M em o ra n d u m fo r the D ep u ty Attorney G e n eral from T h eo d o re B. O lso n , A ssistant A ttorney G en eral, O ffic e o f L e g a l C o u n se l, Re: Reimbursement o f Anne M. Burford fo r Private Counsel Fees , at 3 n .3 (M ay 3, 1 983) (“ B u rfo rd M em o ran d u m ”). 134 The practice of retaining and paying private attorneys was bom of necessity. From time to time, cases arise in which it is awkward from an institutional or professional standpoint for the Attorney General to represent government employees directly, through DOJ attorneys, even though it is clear that representation would be in the interests of the United States. . . . [I]n such cases . . . the Attorney General has “implied authority” to provide representation . . . through a mechanism that will enable him to resolve the professional difficulty. U s­ ing his general authority to contract for services that are necessary in the performance of his statutory functions, he may hire private lawyers to do indirectly what it would be awkward or inappropriate for the United States to do directly through DOJ lawyers.4 The conclusion that the Attorney General has such implied authority is based on that fact that he possesses not only representational authority, see 28 U.S.C. § 517, but executive authority as well, see 28 U.S.C. § 509, and the latter may be used in furtherance of the former.5 A number of opinions of this Office specifically hold that where Depart­ ment representation would ordinarily be provided in a congressional investigation but is inappropriate under the specific circumstances, the D e­ partment may reimburse a government employee for legal fees incurred using private counsel.6 Indeed, one opinion addressed a situation that was strik­ ingly similar to the present situation. During the course of an investigation by the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs into the Labor Department’s handling of Teamsters’ ‘ M em o ran d u m fo r E d w ard C. S ch m u lts, D eputy A ttorney G en eral, from T heodore B. O lso n , A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re: Civil Division s Recommendations Concerning R eim ­ bursement o f Legal Expenses, at 2-3 (June 24, 1981). ’ See M em o ran d u m fo r G len E. Pom m erening, A ssistant A ttorney G eneral for A d m inistration, from A ntonin S calia, A ssistan t A tto rn ey G eneral, O ffice o f Legal C o u n sel, Re: Authority f o r Employment o f Outside Legal Counsel, at 6 (M ar. 4, 1976) (“Pom m erening M em o randum ” ) (“ [I]nterests o f the U n ited States, as w ell as in terests o f the individual Federal em ployees, are at stake. B ecause o f p o ssible c o n ­ flicts o f in terest, rep resen tatio n by D epartm ent em ployees is not feasible. In these circ u m stan c e s, . . . the A ttorney G en eral can use his general au th o rity as the head o f the D epartm ent, see 28 U .S .C . 509, to fu rth er the . . . in te re sts o f the U nited States by retain in g p riv ate attorneys.” ); M em orandum for Jam e s A . B arnes, G en eral C o u n sel, Environm ental Protection A gency, from T h eo d o re B. O lso n , A ssistant A ttorney G en eral, O ffice o f L egal C ounsel, Re: Payment o f Private Counsel Fees Incurred by Anne M. Burford, at 3 (M ar. 12, 1984) ( “W hen the D epartm ent o f J u stic e pro v id es re p re sen ta tio n to ag en cy e m ployees, it d o es so pu rsu an t to 28 U .S.C § 517 . . . . " ) . ‘ See B urford M em o ran d u m , n.3 (the g o v ern m en t may reim burse fo rm er A d m in istra to r o f EPA for p riv ate co u n sel fees in cu rred in connection w ith co n g ressio n al invest:g a tio n s into m a n a g em e n t and a ctivities o f E PA ), M em o ran d u m for J. Paul M cG rath, A ssistant A ttorney G eneral, C ivil D ivision, fro m T h eo d o re B. O lso n , A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, Re: Reimbursing Norman Edward Perkins f o r Attorney's Fees (M ar. 15, 1982) (“ Perkins M em orandum ” ) (Ju stice D ep artm en t m ay reim burse L a b o r D epartm ent em ployee for private counsel legal e xpenses in cu rred in te stim ony before S enate su b co m m itte e investigative hearing); Pom m erening M em orandum , n.5 (Ju stice D e p art­ m ent m ay retain p riv ate counsel fo r em ployees o f various agencies in c onnection w ith cong ressio n al hearings and civil litig atio n ). 135 Union matters, many Labor Department employees testified before the Sub­ committee while accompanied by Justice Department counsel. However, the Chairman of the Subcommittee, Senator Nunn, objected to Norman Edward Perkins and one other Labor Department employee being accompanied by Justice Department counsel because the Subcommittee suspected these indi­ viduals of criminal conduct. The apparent rationale for the Subcommittee position on Department representation was that the Subcommittee “wished to avoid a conflict of interest which could have arisen if Justice later de­ cided to prosecute Mr. Perkins.” Perkins Memorandum at 3. Upon discussing the m atter with Senator Nunn, Attorney General Civiletti acquiesced to the Senator’s preference and agreed that Perkins and the other employee would not be accompanied by Department counsel. Id. at 2. Perkins retained private counsel (id. at 1) and reimbursement o f his counsel fees was ap­ proved by this Office’s opinion (id. at 6). The Perkins situation was basically the same as the present one. “In the absence o f the Nunn-Civiletti agreement, it appears that Perkins would have been represented by a Justice Department attorney, as were the other Labor Departm ent employees.” Id. at 3. Likewise, Department counsel would be representing the employees at the Judiciary Committee depositions but for the D epartm ent’s agreement (by acquiescing to the Committee’s position) that Departm ent counsel would not be present at the employee interviews or depositions. In addition, in the two situations Senator Nunn and the Judi­ ciary Committee were each concerned that Department representation would present a conflict of interest. Although the Department in fact had no con­ flict o f interest in the Perkins situation because no criminal investigation had been initiated (see id. at 4), and the Department has no conflict of interest in the present situation because the employees are appearing in their official capacities and there is no pending criminal investigation, in both cases the Department acquiesced to the congressional committee’s position and made an exception to the longstanding policy that government counsel accompany government employee witnesses. Although the Department’s representation guidelines do not apply in this situation, see n.3 supra, reimbursing the employees is consistent with the principles underlying the guidelines. In reaching this conclusion, we adopt the analysis we used in the Perkins matter.7 We noted there that the guide­ lines authorize use of private counsel where the employee is the subject of a federal criminal investigation or the representation would involve asserting a position that conflicts with a government position. We indicated that while there was no ongoing criminal investigation or conflicting positions, “[b]oth the concern o f possible criminal conduct and the possible conflict arising 7 In a c o m m e n t th at underscores the fa c tu a l sim ilarities betw een the Perkins m atter and the present situ a tio n , w e n o ted in th e Perk in s opinion that "[b je c a u se denial o f re presentation appears to h ave been b a se d n o t on an in te rp re ta tio n of the J u s tic e D e p artm e n t's R epresentation G u id e lin e s, but ra th e r on u rg in g o f a U n ite d S ta te s Senator, the u s u a l grounds fo r p erm itting re presentation by private c o u n se l at fe d e ra l e x p e n s e are n o t re a d ily applicable.” Id. at 3. 136 from Justice Department representation of Perkins appear to have motivated the agreement between Senator Nunn and Attorney General Civiletti . . . [and] therefore . . . reimbursement . . . can be supported by the principles underlying [the guidelines].” Id. at 5. Similarly, in the present situation, even though there are no pending criminal investigations or other conflicting positions, the Judiciary Committee has asserted that the Department has a conflict of interest, and in light of that position the Department has acqui­ esced to the Committee’s insistence that Department counsel not be present. Finally, we should make it clear that this opinion addresses only the question you asked: whether as a general matter the Department has author­ ity to reimburse Department employees for private counsel fees in connection with the Judiciary Committee depositions. To answer that question in the affirmative, it has only been necessary to find that sufficient governmental inter­ ests are at stake in all of the depositions to justify representation by Department counsel — and when the Committee objected to the presence of Department counsel, representation by private counsel paid for by the Department. You have not asked us to make the individualized inquiries necessary to determine whether the representation of any particular employee to whom this opinion applies may involve “purely personal” as well as governmental interests. Thus, we do not opine on “what, if any, portion of the representa­ tion” of particular employees should not be “provided by Government attorneys or at Government expense.” Perkins Memorandum at 4.8 We do note, how­ ever, that it would appear at this time that any personal interests are merely incidental to the governmental interests. After looking into the matter thor­ oughly, the Civil Division knows of no personal or official wrong-doing of which the employees could fairly be accused. Like all witnesses before Congress, the employees have “personal” interests such as being treated fairly, having a full and fair opportunity to respond, and avoiding being made an unfair target of congressional criticism; beyond that, these witnesses are ap­ pearing before Congress only because they did their jobs as Department employees. These personal interests would not appear to be of the kind this Office has previously identified as “purely personal.”9 CONCLUSION We conclude, under these specific and unusual circumstances, that the Department may reimburse Department employees for legal fees they incur in connection with their representation by private counsel at the depositions *See also Representation o f White House Employees , 4B Op. O .L .C . 749, 7 50 (1980) (“ W hite H ouse M em oran d u m ” ) (“ No g o vernm ent attorney, and no private atto rn ey retained at g o v e rn m e n t e x p en se m ay represent th e personal interests o f W hite H ouse em p lo y ees in connection w ith the S e n a te in v e sti­ gatio n ” ) 9See W hite H ouse M em orandum , 4B O p. O .L .C . at 753 (“ [TJhe interests in avoiding fed eral c rim in a l p rosecu tio n , c iv il liability to the U nited States o r adverse ad m in istrative action by a federal a g en cy are c learly personal rather than governm ental in terests.” ). 137 being conducted by the Judiciary Committee. You have not asked us to make the individualized inquiries necessary to determine whether the representa­ tion of particular employees includes representation of purely personal interests that should not be reimbursed. We do note, however, that we are unaware at this time of any such interests, The Civil Division concurs in our analysis and conclusions. JOHN O. M cGINNIS Deputy Assistant Attorney General Office o f Legal Counsel 138

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Term of a Member of the Mississippi River Commission T he term o f a m em ber o f the M ississippi River C om m ission is set by the statute governing his office, and the term dictated by the statute applies even though the language used in his nom ination, confirm ation, and com m ission calls for a different term. May 27, 1999 M e m o r a n d u m O p in io n f o r t h e E x e c u t iv e C l e r k You have asked for our opinion whether the term of a member of the Mis­ sissippi River Commission is set by the language of his nomination, confirmation, and commission, even though the statute governing his office calls for a different term. We conclude that the term dictated by the statute applies. The Mississippi River Commission consists of seven members, appointed by the President with the advice and consent of the Senate. 33 U.S.C. §§641-642 (1994). Three of the members are from the Engineer Corps of the Army, one from the National Ocean Survey, and three from “ civil life.” Id. §642. Each commissioner from civil life “ shall be appointed for a term of nine years.” Id. Ordinarily, when a statute provides for an appointee to serve a term of years, the specified time of service begins with the appointment. Case o f Chief Con­ structor Easby, 16 Op. Att’y Gen. 656 (1880). A different rule generally applies to commissions whose members have staggered terms. There, to preserve the stag­ gering required by statute, each member may serve only until the passage of the specified number of years calculated from the expiration of his predecessor’s term, even if the member’s confirmation and appointment take place after that prior term has expired. Memorandum for Tim Saunders, Acting Executive Clerk, Execu­ tive Clerk’s Office, from Dawn Johnsen, Deputy Assistant Attorney General, Office of Legal Counsel, Re: When the Statutory Term o f a General Trustee o f the John F. Kennedy Center for the Performing Arts Begins (Sept. 14, 1994); Memorandum for Nelson Lund, Associate Counsel to the President, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Starting Date fo r Terms o f Members of the United States Sentencing Commission (May 10, 1990). Because the Mississippi River Commission’s members do not serve staggered terms, its members’ terms, as we understand the practice, have previously been calculated from appointment, rather than from the expiration of the predecessors’ terms. In the case that prompts your question, however, this rule was not followed in the nomination, confirmation, and commission of the member. The prede­ cessor’s term expired October 21, 1996. See 133 Cong. Rec. 28,444 (1987) (Senate confirmation). The President’s nomination of the successor was “ for a term expiring October 21, 2005,” 144 Cong. Rec. S10,943 (daily ed. Sept. 24, 1998) — nine years after the previous term expired — rather than for a term of nine years 123 Opinions o f the Office o f Legal Counsel in Volume 23 to begin upon appointment. Cf. 133 Cong. Rec. 1929 (1987) (predecessor’s nomination was “ for a term of 9 years” ). The Senate likewise gave its advice and consent to the nomination incorporating the wrong term. 144 Cong. Rec. S12,963 (daily ed. Oct. 21, 1998). We understand that, in accordance with the nomination and confirmation, the commission also specified a term expiring October 21, 2005. The language of a nomination, confirmation, and commission cannot alter a statutory term. The opinion of Solicitor General Phillips in Case of Chief Con­ structor Easby, which Attorney General Devens approved, stands for this prin­ ciple. Easby had received a recess appointment as Chief of the Bureau of Construction and Repair in the Navy Department. The wording of his later nomination, confirmation, and commission for the office, which had a statutory four-year term, rested on a calculation running from the date of the recess appoint­ ment, rather than the appointment with the Senate’s advice and consent.1 Solicitor General Phillips concluded that “ [t]he law of the term of the office, of course, controls special language in the nomination and confirmation,” and because “ [t]he term during which Mr. Easby served under the temporary appointment was, by law, a different term from that which commenced” upon his appointment with the Senate’s advice and consent, “ his term of office begins at the date of his appointment by and with the consent of the Senate, and not at the date of his previous temporary appointment by the President, notwithstanding the special wording of his nomination to the Senate, and of his commission.” 16 Op. Att’y Gen. at 656, 657. This principle squares with a pronouncement of the Supreme Court (although it may only have been dictum), Quackenbush v. United States, 177 U.S. 20, 27 (1900) (“ the terms of the commission cannot change the effect of the appointment as defined by the statute” ), and has been followed by our Office, Impact of Panama Canal Zone Treaty on the Filling o f the Vacancy in the Office of the District Judge fo r the United States District Court fo r the District of the Canal Zone, 1 Op. O.L.C. 236, 237 n.4 (1977); Memorandum for John W. Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presidential Commissions at 5 (Dec. 1, 1971).2 Consequently, the term in this case ends nine years after the appointment, rather than on October 21, 2005. The “ special language in the nomination and confirma­ tion,” as well as the language of a commission that “ conform[s] to the . . . 1 The recess appointment took place on A pril 30, 1877 For reasons that are unclear, the nomination, confirmation, and com m ission were all “ from Apnl 28, 1877.” 16 Op A tt’y Gen at 656 Also, the entire period from the beginning o f the recess appointment had been subtracted from Easby’s four-year term, even though the recess appointment expired before Easby was confirmed and appointed Id. at 656 2A ttom ey General C um m ings’ opinion Term o f Office o f Major General Patterson as Surgeon General — Recess Appointm ent, 37 Op. A tt’y Gen. 282, 287 (1933), did not reach a contrary conclusion about the principle, but held that, in view o f long practice under a specific statute, the four-year term in that case included prior service under a recess appointment 124 Term o f a Member o f the Mississippi River Commission wording of that nomination and confirmation,” cannot detract from the statutory specification of the term. 16 Op. Att’y Gen. at 656, 657. DANIEL KOFFSKY Acting Deputy Assistant Attorney General Office of Legal Counsel 125

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Proposed Presidential Proclamation Entitled “Registration Under the Military Selective Service Act” [T h e fo llo w in g m em o ran d u m w as p re p a re d by the O ffice o f L egal C ounsel p u rsu an t to its responsibility u n d e r E x e c u tiv e O r d e r N o. 11,030 for a p p ro v in g all ex ecu tiv e o rd e rs an d p residential p ro clam atio n s for form and legality. O n th e co n stitu tio n al issue raised by th e p ro p o sed p ro clam atio n , it notes th e con clu sio n rea c h e d in an ea rlie r opinion o f the O ffice th at a m ale-only d ra ft is co n stitu tio n al. O n th e sta tu to ry q u estion, it co n clu d es th at th e P resid en t is a u th o riz e d u n d er th e S electiv e S erv ice A c t to re q u ire th e re g istra ­ tion, b y age g ro u p , o f som e b ut n o t all m ales b etw een th e ages o f 18 and 26.] June 30, 1980 MEMORANDUM The attached proposed proclamation was submitted informally to the Office of Management and Budget by the Selective Service System. It was revised in the Office of Management and Budget and has been forwarded for consideration of this Department as to form and legality by that Office with the approval of the Director. Suggestions made by this Office were incorporated during the drafting process. The proposed proclamation would invoke the President’s power under § 3 of the Military Selective Service Act, as amended [the Act], 50 U.S.C. App. § 453, to require male citizens of the United States and other male persons residing in the United States between the ages of 18 and 26 and not exempt under the Act to register with the Selective Service System. It would end the hiatus in registration caused by President Ford’s Proclamation No. 4360 of March 29, 1975 (“Terminat­ ing Registration Procedures Under the Military Selective Service Act, as Amended”). The proclamation would require the registration of all nonexempt males who were born on or after January 1, 1960 and have reached the age of 18. No other persons would be required to register. This desig­ nation of the persons required to register raises constitutional and statu­ tory issues. The constitutional question is whether requiring men but not women to register constitutes impermissible discrimination based on sex. This Office has previously addressed that issue and has concluded that a male-only registration is constitutional. Memorandum from Assistant Attorney General Harmon to Deputy Director White, Office of Man­ 705 agement and Budget, “Constitutionality of All-Male Draft Registra­ tion,” January 31, 1980.* The statutory question involves the President’s power to require the registration, by age group, of some but not all males between the ages of 18 and 26. An argument can be made that the President’s power is limited to requiring the registration of the entire group; that he may not, as the proclamation would, limit registration to 18, 19, and 20 year olds. Section 3 of the Act provides in pertinent part that it shall be the duty of every male . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 26, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. 50 U.S.C. App. § 453 (emphasis added). This language, on its face, can be read as evincing a congressional intent that all persons within the age group delineated be registered. Moreover the phrase “at such time or times and place or places, and in such manner, as shall be deter­ mined by proclamation of the President” does not, in terms, give the President discretion to exclude groups in the 18-to-26 range from the duty imposed on every male in that range. The legislative history of § 3 reveals that The Senate bill provided for the registration of male per­ sons between the ages of 18 and 26, and contained no specific provision authorizing registration by age groups. The House amendment provided for the registration of male persons between the ages of 18 and 31, and specific cally authorized the President to provide for registration by age groups. H. Conf. Rep. No. 2438, 80th Cong., 2d Sess. 44 (1948). The conference adopted the Senate version, the version devoid of specific authority for the President to provide for registration by age groups. Id. This was in contradistinction to the course that Congress had taken in the predeces­ sor to § 3, the model for the House version. The predecessor contained the specific authority, in the exact language omitted from § 3 in 1948. Compare § 2 of the Selective Training and Service Act of 1940, 54 Stat. 885, with § 3 of H.R. 6401, 80th Cong., 2d Sess. (1948), at 94 Cong. Rec. 8395 (1948).1 • N o t e : In Rostker v. Goldberg, 453 U.S. 57 (1981), the Suprem e C ourt upheld the constitutionality o f m ale-only draft registration. Ed. 1 A lth o u g h the Selective Training and Service A ct o f 1940 contained the specific authority for registration by age groups, a contem poraneous in terpretation by the A ttorney G eneral concluded that 706 In light of the language of § 3 and its legislative history, this Office orally advised the Office of Management and Budget earlier this year that it would be highly desirable to have some congressional action confirming his authority before the President issued a proclamation calling for the registration of persons by age groups consisting of less than the entire 18-to-26 range. Since we provided that advice, Con­ gress, at the request of the President, and fully informed of the Presi­ dent’s plan to register, by age group, less than the entire range has, after lengthy and considered debate, appropriated for this registration funds sufficient only to register the number of males in the age groups named in the proclamation. We believe that this congressional action is sufficient to confirm the President’s authority. The proclamation would require persons born in 1960 to register during a six day period beginning July 21, 1980. Those born in 1961 would register between July 28, 1980 and August 2, 1980, and those born in 1962 between January 5, 1981 and January 10, 1981. The proclamation would also establish a continuous registration process, obligating persons to register as they turn 18, upon losing an exempt status, and, with respect to noncitizens, either as they return to resi­ dence in the United States from abroad or as they enter to reside. Aliens in processing centers on the days fixed for their registration would be required to register after their release. A range of days to register would be provided those subject to the continuous registration program. Provision would be made for the late registration of those unable to register at the proper time due to some condition beyond their control, such as hospitalization or incarceration. Registration in the United States would be at any United States Post Office. Registration overseas—available to citizens only—would be before a consular officer of the United States or other designated the President was nonetheless required to register, w ithin a reasonable time, al) persons w ithin the 21to-36 range set in that A ct by Congress. R egarding the first registration proclam ation under the 1940 act, the A ttorney G eneral w rote the President: It will be noted that on page 3 o f the draft, in paragraph num bered 2, the higher age limit o f those to be registered on the sixteenth day o f O cto b er is left blank. This was done out o f deference to the w ishes o f the W ar D epartm ent w ho I understand will urge that such age limit for the first draft be the thirty-first anniversary o f the day of birth. T he language o f the act is ambiguous and I am not prepared to say that you may not require registration o f persons o f different age groups on different registration days. T h e statute as a w hole, how ever, definitely contem plates that all persons betw een the ages o f tw enty-one and thirty-six shall be registered, and under the constitutional requirem ent that the President shall take care that the laws are faithfully executed, it is, in my opinion, your duty to see that this is done w ithin a reasonable time. If, therefore, the age limit inserted in the blank above indicated is o th er than "thirty-sixth" you should, w ithin a reasonable time, set an o th er registration date or other registration dates for the purpose o f the registration o f all persons falling w ithin the age limits prescribed in the statute. W hat is a reasonable time for such purposes depends, of course, upon the exigencies under existing conditions. L etter to the President from the A ttorney G eneral, o f Septem ber 16, 1940. (T he decision made was to register the entire group. See Proclam ation No. 2425 o f Septem ber 16, 1940 (“ R egistration D a y ” ), 3 C .F .R . at 185 (1938-43 C om p.).) 707 person at any United States Embassy or Consulate. Hours for registra­ tion in the United States would be the business hours of the Post Offices. Hours for registration overseas would be set by the Depart­ ment of State. In utilizing the Post Office and the Department of State to assist the Selective Service in registering persons, the President would be exercising his authority under § 10(b)(5) of the Act, 50 U.S.C. App. § 460(b)(5), “to utilize the services of any or all departments and any and all officers or agents of the United States . . . in the execution of this title [§§ 451 through 471a, 50 U.S.C. App.].” The proclamation would direct persons required to register to comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service, to identify themselves when reporting for registration, and to keep the Selective Service System informed of their current addresses after registration. It would urge everyone to cooperate with and to assist those required to register. Executive agencies would be required, upon request of the Director, to assist, to the extent permitted by law, the Selective Service System in carrying out the purposes of the proclamation. This Office has been informed by the Office of the Counsel to the President that that Office intends to have a reference to the congres­ sional resolution making the funds for this registration available inserted in the proclamation’s preamble. No such reference is contained in the proposed proclamation as transmitted to this Department by the Office of Management and Budget. Its inclusion will not affect the legality of the proclamation. The proposed proclamation is acceptable as to form and legality. J ohn M. H arm on Assistant Attorney General Office o f Legal Counsel 708

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Proposed Presidential Proclamation Entitled “Registration Under the Military Selective Service Act” [T h e fo llo w in g m em o ran d u m w as p re p a re d by the O ffice o f L egal C ounsel p u rsu an t to its responsibility u n d e r E x e c u tiv e O r d e r N o. 11,030 for a p p ro v in g all ex ecu tiv e o rd e rs an d p residential p ro clam atio n s for form and legality. O n th e co n stitu tio n al issue raised by th e p ro p o sed p ro clam atio n , it notes th e con clu sio n rea c h e d in an ea rlie r opinion o f the O ffice th at a m ale-only d ra ft is co n stitu tio n al. O n th e sta tu to ry q u estion, it co n clu d es th at th e P resid en t is a u th o riz e d u n d er th e S electiv e S erv ice A c t to re q u ire th e re g istra ­ tion, b y age g ro u p , o f som e b ut n o t all m ales b etw een th e ages o f 18 and 26.] June 30, 1980 MEMORANDUM The attached proposed proclamation was submitted informally to the Office of Management and Budget by the Selective Service System. It was revised in the Office of Management and Budget and has been forwarded for consideration of this Department as to form and legality by that Office with the approval of the Director. Suggestions made by this Office were incorporated during the drafting process. The proposed proclamation would invoke the President’s power under § 3 of the Military Selective Service Act, as amended [the Act], 50 U.S.C. App. § 453, to require male citizens of the United States and other male persons residing in the United States between the ages of 18 and 26 and not exempt under the Act to register with the Selective Service System. It would end the hiatus in registration caused by President Ford’s Proclamation No. 4360 of March 29, 1975 (“Terminat­ ing Registration Procedures Under the Military Selective Service Act, as Amended”). The proclamation would require the registration of all nonexempt males who were born on or after January 1, 1960 and have reached the age of 18. No other persons would be required to register. This desig­ nation of the persons required to register raises constitutional and statu­ tory issues. The constitutional question is whether requiring men but not women to register constitutes impermissible discrimination based on sex. This Office has previously addressed that issue and has concluded that a male-only registration is constitutional. Memorandum from Assistant Attorney General Harmon to Deputy Director White, Office of Man­ 705 agement and Budget, “Constitutionality of All-Male Draft Registra­ tion,” January 31, 1980.* The statutory question involves the President’s power to require the registration, by age group, of some but not all males between the ages of 18 and 26. An argument can be made that the President’s power is limited to requiring the registration of the entire group; that he may not, as the proclamation would, limit registration to 18, 19, and 20 year olds. Section 3 of the Act provides in pertinent part that it shall be the duty of every male . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 26, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. 50 U.S.C. App. § 453 (emphasis added). This language, on its face, can be read as evincing a congressional intent that all persons within the age group delineated be registered. Moreover the phrase “at such time or times and place or places, and in such manner, as shall be deter­ mined by proclamation of the President” does not, in terms, give the President discretion to exclude groups in the 18-to-26 range from the duty imposed on every male in that range. The legislative history of § 3 reveals that The Senate bill provided for the registration of male per­ sons between the ages of 18 and 26, and contained no specific provision authorizing registration by age groups. The House amendment provided for the registration of male persons between the ages of 18 and 31, and specific cally authorized the President to provide for registration by age groups. H. Conf. Rep. No. 2438, 80th Cong., 2d Sess. 44 (1948). The conference adopted the Senate version, the version devoid of specific authority for the President to provide for registration by age groups. Id. This was in contradistinction to the course that Congress had taken in the predeces­ sor to § 3, the model for the House version. The predecessor contained the specific authority, in the exact language omitted from § 3 in 1948. Compare § 2 of the Selective Training and Service Act of 1940, 54 Stat. 885, with § 3 of H.R. 6401, 80th Cong., 2d Sess. (1948), at 94 Cong. Rec. 8395 (1948).1 • N o t e : In Rostker v. Goldberg, 453 U.S. 57 (1981), the Suprem e C ourt upheld the constitutionality o f m ale-only draft registration. Ed. 1 A lth o u g h the Selective Training and Service A ct o f 1940 contained the specific authority for registration by age groups, a contem poraneous in terpretation by the A ttorney G eneral concluded that 706 In light of the language of § 3 and its legislative history, this Office orally advised the Office of Management and Budget earlier this year that it would be highly desirable to have some congressional action confirming his authority before the President issued a proclamation calling for the registration of persons by age groups consisting of less than the entire 18-to-26 range. Since we provided that advice, Con­ gress, at the request of the President, and fully informed of the Presi­ dent’s plan to register, by age group, less than the entire range has, after lengthy and considered debate, appropriated for this registration funds sufficient only to register the number of males in the age groups named in the proclamation. We believe that this congressional action is sufficient to confirm the President’s authority. The proclamation would require persons born in 1960 to register during a six day period beginning July 21, 1980. Those born in 1961 would register between July 28, 1980 and August 2, 1980, and those born in 1962 between January 5, 1981 and January 10, 1981. The proclamation would also establish a continuous registration process, obligating persons to register as they turn 18, upon losing an exempt status, and, with respect to noncitizens, either as they return to resi­ dence in the United States from abroad or as they enter to reside. Aliens in processing centers on the days fixed for their registration would be required to register after their release. A range of days to register would be provided those subject to the continuous registration program. Provision would be made for the late registration of those unable to register at the proper time due to some condition beyond their control, such as hospitalization or incarceration. Registration in the United States would be at any United States Post Office. Registration overseas—available to citizens only—would be before a consular officer of the United States or other designated the President was nonetheless required to register, w ithin a reasonable time, al) persons w ithin the 21to-36 range set in that A ct by Congress. R egarding the first registration proclam ation under the 1940 act, the A ttorney G eneral w rote the President: It will be noted that on page 3 o f the draft, in paragraph num bered 2, the higher age limit o f those to be registered on the sixteenth day o f O cto b er is left blank. This was done out o f deference to the w ishes o f the W ar D epartm ent w ho I understand will urge that such age limit for the first draft be the thirty-first anniversary o f the day of birth. T he language o f the act is ambiguous and I am not prepared to say that you may not require registration o f persons o f different age groups on different registration days. T h e statute as a w hole, how ever, definitely contem plates that all persons betw een the ages o f tw enty-one and thirty-six shall be registered, and under the constitutional requirem ent that the President shall take care that the laws are faithfully executed, it is, in my opinion, your duty to see that this is done w ithin a reasonable time. If, therefore, the age limit inserted in the blank above indicated is o th er than "thirty-sixth" you should, w ithin a reasonable time, set an o th er registration date or other registration dates for the purpose o f the registration o f all persons falling w ithin the age limits prescribed in the statute. W hat is a reasonable time for such purposes depends, of course, upon the exigencies under existing conditions. L etter to the President from the A ttorney G eneral, o f Septem ber 16, 1940. (T he decision made was to register the entire group. See Proclam ation No. 2425 o f Septem ber 16, 1940 (“ R egistration D a y ” ), 3 C .F .R . at 185 (1938-43 C om p.).) 707 person at any United States Embassy or Consulate. Hours for registra­ tion in the United States would be the business hours of the Post Offices. Hours for registration overseas would be set by the Depart­ ment of State. In utilizing the Post Office and the Department of State to assist the Selective Service in registering persons, the President would be exercising his authority under § 10(b)(5) of the Act, 50 U.S.C. App. § 460(b)(5), “to utilize the services of any or all departments and any and all officers or agents of the United States . . . in the execution of this title [§§ 451 through 471a, 50 U.S.C. App.].” The proclamation would direct persons required to register to comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service, to identify themselves when reporting for registration, and to keep the Selective Service System informed of their current addresses after registration. It would urge everyone to cooperate with and to assist those required to register. Executive agencies would be required, upon request of the Director, to assist, to the extent permitted by law, the Selective Service System in carrying out the purposes of the proclamation. This Office has been informed by the Office of the Counsel to the President that that Office intends to have a reference to the congres­ sional resolution making the funds for this registration available inserted in the proclamation’s preamble. No such reference is contained in the proposed proclamation as transmitted to this Department by the Office of Management and Budget. Its inclusion will not affect the legality of the proclamation. The proposed proclamation is acceptable as to form and legality. J ohn M. H arm on Assistant Attorney General Office o f Legal Counsel 708

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D ecem ber 22, 1977 77-73 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Status of the Acting Director, Office of Management and Budget This responds to your request for our opinion concerning the legality of Mr. A’s continuing to serve as Acting Director of the Office o f Management and Budget (OMB). Our views may be summarized as follows: The provisions of the “Vacancy A ct,” including the 30-day limit on the tenure o f persons serving in an acting capacity, do not apply to OMB. Under 31 U.S.C. § 16 (Supp. V 1975), when there is a vacancy in the office o f Director o f OMB, the Deputy Director becomes Acting Director. While there is no express statutory limit on the length of such tenure as Acting Director, it may not continue indefinitely. Within a reasonable time after the occurrence of a vacancy in the office of Director, the Presi­ dent should submit a nomination to the Senate. The circumstances here are such that the duration of Mr. A ’s service as Acting Director seems reasonable. Discussion 1. Provisions derived from the Vacancy A ct of 1868 are codified in 5 U.S.C. §§ 3345-49. Section 3345 provides that, unless the President directs otherwise, when the head of an executive department or mili­ tary department resigns, his first assistant shall perform the duties of the office until a successor is appointed. Under 5 U.S.C. 3348, however, a person filling a vacancy by virtue of § 3345 may not do so for more than 30 days. Even assuming for the sake of argument that the Vacancy A ct was intended to cover all agencies in the executive branch, that would not be determinative. Although derived from the 1868 Act, the current provisions, 5 U.S.C. §§ 3345-49, stand on a separate footing because they, along with the other provisions of Title 5, were enacted into 287 positive law in 1966.1 The applicable definition of “Executive depart­ m ent” is set forth in 5 U.S.C. § 101; that definition is restricted to the Cabinet departments and does not include OMB.2 It follows that 5 U.S.C. § 3348, which imposes a 30-day limit on the time that a “first assistant” m ay on the basis of § 3345 act as department head, does not apply to OMB. 2. Article II, § 2, Cl. 2 of the Constitution provides that the President is to nominate and, with the advice and consent of the Senate, appoint ambassadors, Supreme Court Justices “and all other officers of the United States, whose appointments are not herein otherwise provided for. . . .” This clause also provides that “the Congress may by law vest the appointment of such inferior officers . . . in the President alone, in the courts of law, o r in the heads of departments.” F or more than 50 years, the President had sole responsibility for appointing the Director of OM B or its predecessor Agency, the Bureau of the Budget. See § 207 o f the Budget and Accounting Act, 1921, 31 U.S.C. § 16 (1970). Then, in 1974, the requirement of Senate confirma­ tion of the D irector and D eputy D irector of OMB was enacted. See Pub. L. No. 93-250, §1, 88 Stat. 11, 31 U.S.C. §16 (Supp. V 1975). O ur examination of the legislative history of the 1974 statute, as well as that of similar legislation passed by Congress in 1975 but vetoed by President Nixon,3 reveals no discussion of the question of the length of time that a Deputy Director o f OMB may serve as Acting D irector.4 In fact, the provision regarding the filling of a vacancy by the Deputy D irector was not added by the 1974 statute. T hat provision dates back to the 1921 Budget and Accounting A ct, as amended by Reorganization Plan No. 2 of 1970.5 As noted previously, under the 1921 Act, the positions of D irector and D eputy D irector were not subject to Senate confirmation. 3. In Williams v. Phillips, 360 F. Supp. 1363 (D.D.C., 1973), the district court held invalid President Nixon’s naming of an Acting Di­ rector o f the Office of Economic Opportunity.8 The court’s reasoning supports our view that, by virtue of 31 U.S.C. § 16 (Supp. V 1975), a Deputy D irector of OMB m ay act as Director for a (reasonable) period 1See Pub. L. No. 89-554, 80 Stat. 378, et seq. 1 Regarding the applicability o f the definition contained in 5 U.S.C. § 101, see the explanatory note following 5 U.S.C. § 3345. 3 See, e.g., S. Rep. 93-7, 93d Cong., 1st Sess. (1973); 119 Cong. Rec. 3348 (1973); H.R. Rep. No. 93-109, 93d Cong., 1st Sess. (1973). T he bill passed in 1973 would have required Senate confirmation o f the incumbent D irector and D eputy Director as well as persons named to those positions in the future. The Senate voted to override the veto, 119 Cong. Rec. 16503 (1973), but the House failed to do so, 119 C ong. Rec. 16764 (1973). 4 See, e.g„ S. Rep. No. 93-237, 93d Cong., 1st Sess. (1973); H.R. Rep. No. 93-697 (1973); 120 Cong. Rec. 2781 (1974). “ T he reorganization plan replaced the Bureau o f the Budget with OMB. 6 T he court of appeals denied the G overnment’s motion for a stay pending appeal. Williams v. Phillips, 482 F. 2d 669 (D.C. Cir. 1973). Later, the case became moot and, on January 21, 1974, the appeal was dismissed. 288 in excess of 30 days. The court referred to similar statutes applicable to other agencies (e.g., the Veterans Administration) and stressed the fact that, with regard to OEO, there was no statute providing for an Acting Director. 360 F. Supp. at 1370-71. The court’s conclusion was as follows: “Thus the failure of the Congress to provide legislation for an acting director must be regarded as intentional. The Court holds that in the absence of such legislation or legislation vesting a temporary power of appointment in the President, the constitution­ al process of nomination and confirmation must be followed. Therefore, the Court finds that the defendant Phillips was not appointed lawfully to his post as Acting Director of OEO. An injunction will issue to restrain him from taking any actions as Acting Director of OEO.” 360 F. Supp. 1371 [footnote omitted]. The clear implication is that, had there been an OMB-type statute and had Phillips been the Deputy Director of OEO, the court would have reached a different result. Moreover, in United States v. Halmo, 386 F. Supp. 593 (D. Wis., 1974), a criminal prosecution, Solicitor General Bork had become the Acting Attorney General pursuant to 28 U.S.C. § 508(b) by reason o f a vacancy in the offices of Attorney General and Deputy Attorney G en­ eral. The defendants contended that because of the 30-day limitation in the Vacancy Act, Mr. Bork’s order authorizing an application for a wiretap order was invalid. The court rejected the contention, stating: “There is no time limitation imposed on those who acquire office through § 508(b), 386 F. Supp. at 595.” 4. 31 U.S.C. § 16 (Supp. V 1975) provides that, in the event of a vacancy in the office of Director of OMB, the Deputy Director shall act as Director. There is no Phillips-type problem of avoidance of Senate confirmation.7 Since 1974, the Deputy Director of OMB, as well as the Director, is appointed with the advice and consent of the Senate. It seems reasonable to assume that, when the Senate considers a nomi­ nee for the position of Deputy Director, it does so with the realization that he may possibly become Acting Director. On the other hand, Congress has created tw o positions, Director and Deputy Director, and has required that each be filled by a person whose nomination is confirmed by the Senate.8 In our view, it is implicit in 31 U.S.C. § 16 (Supp. V 1975), that a Deputy Director may not properly serve indefinitely as Acting Director. There is no specific limit, 30 days or otherwise, but the tenure of an Acting Director should 7 Congress was aware of the decision in Williams v. Phillips. The plaintiffs were Senators. The decision was brought to the attention of the House, 119 Cong. Rec. 19316 (1973) (Congressman Rangel), and was inserted into the Congressional Record by Senator Williams, 119 Cong. Rec. 19595 (1973). • We do not deal with the question of the current status o f the position of Deputy Director of OMB. See § 102(0 of Reorganization Plan No. 2 of 1970. 289 not continue beyond a reasonable time. W hat period is reasonable depends upon the particular circumstances. Pertinent considerations include the specific functions being per­ formed by the Acting Director; the manner in which the vacancy was created (death, long-planned resignation, etc.); the time when the va­ cancy was created (e . g w hether near the beginning or the end of a session of the Senate); • w hether the President has sent a nomination to the Senate; and particular factors affecting the President’s choice (e . g a desire to appraise the w ork of an Acting Director) or the President’s ability to devote attention to the matter. 5. Mr. A has served as A cting D irector for 3 months. In our opinion, given the circumstances, that period is reasonable. Significant in this regard are Mr. A ’s involvement in the budget process and the deadlines imposed by the Congressional Budget A ct of 1974, see 31 U.S.C. § 1321 (Supp. V 1975). In addition it is noteworthy that the Senate adjourned on December 15 and will not reconvene until January 19. A recess appointment could be made but, in view of the salary restrictions of 5 U.S.C. 5503, it would clearly be reasonable for the President to wait until the Senate reconvenes. In conclusion, we believe Mr. A ’s tenure as Acting Director of OMB is lawful. Regarding the tim e to make a nomination, the President has discretion, but is required to do so within a reasonable period. John M. H arm on Assistant Attorney General Office o f Legal Counsel * Regarding recess appointments, see Art. II, § 2, Cl. 3 o f the Constitution and 5 U.S.C. § 5503, the latter dealing with the payment of salaries of persons receiving such appoint­ ments. In the circumstances present here a recess appointee could not under 5 U.S.C. § 5503 be paid. 290

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Implementation of International Civil Aviation Agreements If a valid reciprocal arrangement has been entered into between the United States and a foreign country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign aircraft a permit to fly across the United States without landing or a permit to land for non-traffic purposes. February 6, 1945 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL* The State Department has requested the informal advice of the Attorney General on a question that has arisen in connection with the International Air Services Transit Agreement, commonly called the “Two Freedoms Agreement,” and the International Air Transport Agreement, frequently referred to as the “Five Freedoms Agreement,” drawn up at the International Civil Aviation Conference held in Chicago in the fall of 1944. These agreements grant to the signatory powers certain privileges with respect to “scheduled international air services.” It is in connection with these privileges that the following question has risen: Assuming that reciprocal rights have been granted by some valid arrangement between the United States and a foreign country, is the Civil Aeronautics Authority authorized under existing law to grant to aircraft of the foreign country a license or certificate (1) to fly across United States territory without landing; and (2) to land in the United States for non-traffic purposes (e.g., refueling)? The State Department has not asked this Department to examine the details of these agreements, or to comment on the Convention on Civil Aviation or the Interim Agreement on Civil Aviation drawn up at Chicago. The State Department has not asked us to consider whether the agreements require ratification by the Senate or may be executed as executive agreements. The only question that has been put to us relates to the construction of the statutes regulating civil aviation and we shall confine the discussion in this memorandum to that point. The question of statutory construction, however, does have a bearing on the question whether the agreements may properly be executed as executive agreements for the following reason: If the agreements required or contemplated action by the Civil Aeronautics Authority or any other agency of the government that was unauthor* Editor’s Note: The cover memorandum attached to this memorandum opinion states that “Mr. Acheson [presumably Dean Acheson, then Assistant Secretary of State, later Secretary of State under President Truman] is very eager to get our views on this; he has called me twice in the past week. It may be that you will wish to submit a copy of my memorandum to Mr. Acheson for his comments before you decide whether you agree with the conclusion reached in the memorandum.” The cover memorandum states further: “The State Department has not asked us for a formal opinion, and you will recall that in his conference with us Mr. Acheson said he was not sure that the State Department would make this request.” 106 Implementation of International Civil Aviation Agreements ized or forbidden by domestic law, a serious question might arise as to whether the agreements could be consummated as executive agreements. If it is concluded that the Civil Aeronautics Authority is authorized by existing law to grant to foreign aircraft a license or certificate to fly across United States territory without landing or to land in the United States for non-traffic purposes, the problem of the agreements contemplating action not authorized by existing law does not arise. I. Statutes Involved Section 6 of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568, 572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973,1 provides in part as follows: (a) The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States . . . . (b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as hereinafter in this section provided. (c) If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Civil Aeronautics Board may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States. No foreign aircraft shall engage in air commerce otherwise than between any State, Territory, 1 Section 1107(i) of the Civil Aeronautics Act of 1938 amended section 6 of the Air Commerce Act of 1926. Among other things, section 1107(i) struck out the last part of section 6(a) and added the last sentence of section 6(c) as quoted in the text. In its original form, section 6(c) contained the following language limiting the authority to permit foreign aircraft to be navigated in the United States: “but no foreign aircraft shall engage in interstate or intrastate air commerce.” Pub. L. No. 69-254, 44 Stat. at 572. The Air Commerce Act of 1926 contains the following definitions: That as used in this Act, the term “air commerce” means transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business. As used in this Act, the term “interstate or foreign air commerce” means air commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through the airspace over any place outside thereof; or wholly within the airspace over any Territory or possession or the District of Columbia. Pub. L. No. 69-254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940). As defined in the 1926 statute, the term “United States” includes the overlying airspace. Id. § 9(b), 44 Stat. at 573, codified at 49 U.S.C. § 179(b) (1940). 107 Supplemental Opinions of the Office of Legal Counsel in Volume 1 or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country. 49 U.S.C. § 176 (1940).2 Section 1 of the Civil Aeronautics Act of 1938 contains the following definitions: (3) “Air commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce. .... (16) “Civil airway” means a path through the navigable air space of the United States, identified by an area on the surface of the earth, designated or approved by the Administrator as suitable for interstate, overseas, or foreign air commerce. .... (25) “Navigation of aircraft” or “navigate aircraft” includes the piloting of aircraft. .... (31) “United States” means the several States, the District of Columbia, and the several Territories and possessions of the United States, including the Territorial waters and the overlying air space thereof. Pub. L. No. 75-706, 52 Stat. at 977–80, codified at 49 U.S.C. § 401 (1940). 2 The authority conferred by this section was originally vested in the Secretary of Commerce. Pub. L. No. 69-254, § 6(c), 44 Stat. at 572. As amended by the Civil Aeronautics Act of 1938, § 1107(i)(1), 52 Stat. at 1028, subsection (c) referred to the Civil Aeronautics Authority. Section 7(b) of Reorganization Plan 4 changed the title of the Civil Aeronautics Authority to “Civil Aeronautics Board” and made other changes not relevant here. 5 Fed. Reg. 2421, 2422 (June 29, 1940). The term “Civil Aeronautics Authority” is now used to refer to the Civil Aeronautics Board and the Administrator of Civil Aeronautics considered together. In this memorandum we shall use the title “Civil Aeronautics Authority” without discussing whether the authority given by section 6(c) of the Air Commerce Act may be exercised by the Civil Aeronautics Board or by the Administrator or by both. See Permits for Flight of Foreign Aircraft into the United States, 40 Op. Att’y Gen. 136 (Sept. 12, 1941). 108 Implementation of International Civil Aviation Agreements II. Text In section 6 of the Air Commerce Act, the Congress asserted sovereignty over the airspace above the territory of the United States and reserved to American aircraft all rights of “cabotage” (e.g, air traffic between points within a single state, between two states or between the United States and any of its possessions or territories). The section, however, authorizes the Civil Aeronautics Authority to grant certain flight privileges to foreign aircraft. The only question discussed in this memorandum is whether foreign aircraft may be authorized to make non-stop flights over the United States or to land for non-traffic purposes in the United States. In neither case would the foreign aircraft be authorized to pick up passengers or freight at any point in the United States, its territories or possessions destined for any other point in the United States, its territories or possessions. The first sentence of section 6(c) authorizes the Civil Aeronautics Authority to permit foreign aircraft “to be navigated in the United States.” In its ordinary meaning and as defined in the act, “navigation” includes any flight by aircraft whether or not a landing is made; both non-stop flight and transit flight with the privilege of landing for non-commercial purposes necessarily involve the navigation of aircraft in the airspace over the United States. Therefore, if the first sentence of section 6(c) stood alone, it would authorize the Civil Aeronautics Authority to grant a permit for the type of flight discussed in this memorandum. It is necessary, however, to consider the limitation placed on this sentence by the second sentence of section 6(c). That sentence provides that foreign aircraft may not engage in “air commerce otherwise than between any State, Territory or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country.” For the purpose of deciding how this sentence should be interpreted we shall first consider the meaning of the term “air commerce” and then discuss the requirement that air commerce must be between a state, territory or possession of the United States, or the District of Columbia, and a foreign country. As defined in section 1(3) of the Civil Aeronautics Act, the term “air commerce” includes any navigation of aircraft within the limits of a civil airway or any navigation of aircraft which may endanger the safety of operations in air commerce. Under this definition any flight by aircraft into the airspace of the United States would appear to be “air commerce.” Both non-stop flights and transit flights with non-traffic landing privileges are, therefore, “air commerce” within this definition.3 3 If section 6(c) is examined in the light of the definition of “air commerce” contained in the 1926 statute, it is none the less clear that under section 6(c) the Civil Aeronautics Authority may authorize non-stop flight by foreign aircraft as part of a scheduled international air service. As defined in the 1926 statute, “air commerce” includes the navigation of aircraft in the furtherance of a business. 49 109 Supplemental Opinions of the Office of Legal Counsel in Volume 1 If a foreign aircraft en route from one foreign point to another stops at some point in the United States or one of its possessions for a non-traffic purpose, it seems clear that the aircraft is engaged in air commerce between a “State, Territory or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country” within the meaning of the statute. There remains for consideration the question whether a non-stop flight by a foreign aircraft over American territory en route from a point in one foreign country to another foreign point also falls within the statutory language. When an aircraft enters the airspace over any part of the United States, including its territories and possessions, it has entered the United States as much as if it had landed within the territorial boundaries, since the United States has sovereignty over the overlying airspace. Cf. United States v. One Pitcairn Bi-Plane, 11 F. Supp. 24 (W.D.N.Y. 1935). For the purpose of subsection (c) it does not appear to make any difference whether the foreign aircraft returns by the same route it entered the United States. The section refers to “any” foreign country and does not require the aircraft to leave the United States by the same route it followed when entering. Section 6(c) of the Air Commerce Act does not prohibit a foreign aircraft from entering the airspace over more than one state, territory or possession of the United States. The section refers to “any” state, territory, or possession and does not limit the application of the section to states which are on the boundary of the United States. In addition, subsection (c) refers to the District of Columbia. It would not be possible for a foreign aircraft to fly into the airspace over the District of Columbia without crossing the airspace of some other state. It is obvious, therefore, that the statute does not contemplate that the foreign aircraft is prohibited from entering any state other than a border state. This construction of section 6(c) is reinforced by a consideration of the purposes of the Civil Aeronautics Act of 1938. Section 3 of that Act declares that the purpose of the statute is to promote the development of air transportation. If the statute were construed to prohibit the Civil Aeronautics Authority from granting a certificate to foreign aircraft for non-stop flight as part of a scheduled international air service, even though the foreign government was willing to grant reciprocal privileges, the foreign government would undoubtedly refuse such privileges to American air lines. As a result, the development of international air transport services by American carriers would be hampered rather than encouraged. III. Administrative Construction Administrative practice under both the Air Commerce Act of 1926 and the Civil Aeronautics Act of 1938 supports the construction of section 6(c) outlined in U.S.C. § 171. Non-stop flights or transit flights with the privileges of non-traffic landing carried on as a part of a regularly scheduled air service appear to be included within this definition of air commerce. 110 Implementation of International Civil Aviation Agreements this memorandum. Under the 1926 statute, a number of bilateral agreements relating to air navigation were entered into between the United States and other countries granting, among other things, reciprocal privileges of non-stop flight, subject to various limitations not relevant here and to the rules and regulations of each country. See Air Navigation Agreement, U.S.-It., Oct. 31, 1931, E.A.S. No. 24; Air Navigation Agreement, U.S.-Swe., Oct. 9, 1933, E.A.S. No. 47; Air Navigation Agreement, U.S.-Nor., Nov. 15, 1933, E.A.S. No. 50; Air Navigation Agreement, U.S.-S. Afr., Sept. 20, 1933, E.A.S. No. 54; Air Navigation Agreement, U.S.-Den., Apr. 16, 1934, E.A.S. No. 58; Air Navigation Agreement, U.S.Gr. Brit., May 5, 1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4, 1937, E.A.S. No. 110. Since 1938 bilateral agreements conferring similar privileges have been entered into. See Air Navigation Agreement, U.S.-Can., Aug. 1, 1938, E.A.S. No. 129; Air Transport Services Agreement, U.S.-Can., Aug. 18, 1939, E.A.S. No. 159; Air Navigation Agreement, U.S.-Fr., Aug. 15, 1939, E.A.S. No. 152; Air Navigation Agreement, U.S.-Liber., June 15, 1939, E.A.S. No. 166. Since April 7, 1939 the Trans-Canada Air Lines has been operating under a permit granted by the Civil Aeronautics Authority authorizing non-stop flights by Canadian aircraft over the State of Maine en route between Toronto, Canada and Halifax, Nova Scotia. The Civil Aeronautics Authority has also issued a permit to the Canadian Colonial Airways, Inc., authorizing flights between Montreal, Canada, and Nassau in the Bahamas with a stopover for non-traffic purposes in Jacksonville, Florida. IV. Legislative History The legislative history does not offer positive assurance with respect to the construction of section 6(c) of the Air Commerce Act. Non-stop flights by foreign aircraft and transit flights with the privilege of landing for non-traffic purposes were not the subject of debate in Congress at the time of the passage of the Civil Aeronautics Act of 1938. However, the agreements executed under the Air Commerce Act were not criticized or repudiated by the Congress. The legislative history indicates in this respect that the Congress intended to make no substantial change in section 6(c) of that Act. V. Conclusion It is my view that the Department of State may be advised informally that if a valid reciprocal arrangement has been entered into between the United States and a foreign country, the Civil Aeronautics Authority is authorized under existing law to grant to a foreign aircraft a permit to fly across the territory of the United States without landing or a permit to land for non-traffic purposes in the United States, subject to compliance with the laws and regulations of the United States. 111 Supplemental Opinions of the Office of Legal Counsel in Volume 1 It is unnecessary to discuss in this memorandum whether a non-stop flight with or without the privilege of landing for technical reasons is the kind of air transportation for which a permit must be granted under section 401 or 402 of the Civil Aeronautics Act of 1938. Cf. Canadian Colonial Airways, Inc.—Investigation, 2 C.A.B. 752, Docket No. 601 (July 7, 1941). It is also unnecessary to discuss conditions that should be attached by the Civil Aeronautics Authority to any certificate issued to foreign aircraft. I am attaching a memorandum prepared by Mr. Eberly discussing these questions in greater detail. HUGH B. COX Assistant Solicitor General 112 Implementation of International Civil Aviation Agreements January 29, 1945 MEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL This memorandum is in response to your request for my views on the questions presented in the memorandum from the Department of State for the Attorney General, dated January 8, 1945. I. At the International Civil Aviation Conference held at Chicago, there were drawn up on December 7, 1944, the following multilateral agreements: (1) a Convention on International Civil Aviation; (2) an Interim Agreement on International Civil Aviation; (3) an International Air Services Transit Agreement; and (4) an International Air Transport Agreement. Members of the Civil Aeronautics Board attended the conference as delegates of the United States. It is understood that they have approved the agreements. The Convention is to be submitted to the Senate for ratification. The Interim Agreement provides for the establishment of a provisional organization for collaboration in the field of international civil aviation. It is to last only until the Convention comes into operation, or at most for a period of three years. We are concerned only with the third and the fourth of these four agreements, the International Air Services Transit Agreement and the International Air Transport Agreement. These agreements deal with “scheduled international air services.” The International Air Services Transit Agreement, commonly referred to as the Two Freedoms Agreement, provides in pertinent part: ARTICLE I Section 1 Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air services: (1) The privilege to fly across its territory without landing; (2) The privilege to land for non-traffic purposes. . . . 113 Supplemental Opinions of the Office of Legal Counsel in Volume 1 Section 4 Each contracting State may, subject to the provisions of this Agreement, (1) Designate the route to be followed within its territory by any international air service and the airports which any such service may use . . . . Section 5 Each contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any case where it is not satisfied that substantial ownership and effective control are vested in nationals of a contracting State, or in case of failure of such air transport enterprise to comply with the laws of the State over which it operates, or to perform its obligations under this Agreement. The second agreement, document 4 above mentioned, is the International Air Transport Agreement, commonly referred to as the Five Freedoms Agreement. It contains the same provisions as those quoted above from the International Air Services Transit Agreement (article I, sections 1, 5 and 6) and, in addition, three other privileges, hence giving rise to the name Five Freedoms Agreement. Each of these two agreements comes into force as between contracting States upon its acceptance by each of them. Each agreement may be denounced by any party thereto on one year’s notice. The Two Freedoms Agreement and the Five Freedoms Agreement contain provisions making the exercise of privileges granted in the respective agreements to the contracting States subject to certain provisions of the Interim Agreement and, when it comes into force, subject to certain provisions of the Convention. In view of the uncertainty as to the scope of the questions raised in the State Department memorandum, Mr. Barnard and I attended a meeting with representatives of the State Department on January 22, 1945. It is my understanding that with respect to the present inquiry this department is not concerned with any question arising out of the relation of the provisions of the Two Freedoms Agreement and of the Five Freedoms Agreement to the provisions of the Interim Agreement and the Convention; or with any question of national defense or security; or with the fact that the two agreements are multilateral international agreements, and not bilateral agreements; or with any question as to whether the Two Freedoms Agreement and the Five Freedoms Agreement may be executed by the President as executive agreements without the necessity of submitting the agreements, or either of them, to the Senate for its advice and consent as to ratification. 114 Implementation of International Civil Aviation Agreements The only question on which the Department of State desires the informal opinion of the Attorney General is the question whether the two privileges granted by the Two Freedoms Agreement and the Five Freedoms Agreement with respect to foreign scheduled air services, (1) to fly across the territory of the United States without landing, and (2) to land in the United States for non-traffic purposes, are authorized by, or conform with, existing law of the United States. This question will be considered on the basis that the agreements conferring these privileges are bilateral agreements. II. Both the Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Havana Convention of 1928 (Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, 47 Stat. 1901) adopted the doctrine of complete and exclusive sovereignty over the air space above the territory of a state, but contained provisions extending certain reciprocal privileges to foreign aircraft within the territories of member states. This principle of exclusive sovereignty over the air space, but with authorization for innocent passage of civil foreign aircraft under certain conditions, is written into the statutes of the United States to which reference will shortly be made. The Paris Convention was signed by the United States, but it was not ratified. S. Doc. No. 67-348, at 3768 (1923). Ratification of the Havana Convention was advised by the Senate on February 20, 1931. 74 Cong. Rec. 5514. The Convention was ratified by the President on March 6, 1931, and proclaimed by the President on July 27, 1931. 47 Stat. 1901. Incidentally, it may be noted that Article XV of the Paris Convention provides that every aircraft of a contracting State has the right to cross the air space of another State without landing, subject to following a designated route. S. Doc. No. 67-348, at 3775. The Paris Convention and the Havana Convention have been interpreted to deny freedom of air navigation to the operators of air lines, except by special agreement. As a result, international services have been established pursuant to international bilateral agreements and, in some cases, by unilateral concession. The United States is a party to a number of bilateral agreements under which each party grants certain privileges to the civil aircraft of the other party. Air navigation in the United States is regulated by the provisions of the Civil Aeronautics Act of 1938, and the Air Commerce Act of 1926 as amended by the Civil Aeronautics Act of 1938. I shall discuss first the Air Commerce Act of 1926 as originally enacted, and, secondly, the Civil Aeronautics Act of 1938. Section 6 of the Air Commerce Act of 1926, as originally enacted, provides: 115 Supplemental Opinions of the Office of Legal Counsel in Volume 1 (a) The Congress hereby declares that the Government of the United States has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, including the Canal Zone. Aircraft a part of the armed forces of any foreign nation shall not be navigated in the United States, including the Canal Zone, except in accordance with an authorization granted by the Secretary of State. (b) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as hereinafter in this section provided; and if so authorized, such aircraft and airmen serving in connection therewith, shall be subject to the requirements of section 3, unless exempt under subdivision (c) of this section. (c) If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Secretary of Commerce may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States, and may by regulation exempt such aircraft, and/or airmen serving in connection therewith, from the requirements of section 3, other than the air traffic rules; but no foreign aircraft shall engage in interstate or intrastate commerce. Pub. L. No. 69-254, § 6, 44 Stat. 568, 572 (emphasis supplied). The parts underscored in the above quotation were repealed or amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973. Section 9(b) of the Air Commerce Act of 1926 provides that the term “United States,” when used in a geographical sense, means the territory comprising the several States, Territories, possessions, and the District of Columbia, and the overlying air space. 44 Stat. at 573. The term “air commerce” is defined in section 1 of the statute as “transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business.” 44 Stat. at 568. The term “interstate or foreign air commerce” is defined in section 1 of the statute to mean “air commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through the airspace of any place outside thereof; or wholly within the airspace over any Territory or possession or the District of Columbia.” 44 Stat. at 568. 116 Implementation of International Civil Aviation Agreements It will be seen that section 6 of the statute permits foreign civil aircraft, not a part of the armed forces of a foreign nation, to be “navigated in the United States” under certain conditions. The conditions are: (1) Reciprocal rights must first be granted by the foreign nation with respect to aircraft of the United States. The foreign aircraft or carrier— (2) must receive authorization from the Secretary of Commerce to be “navigate[d] in the United States”; (3) may be subject to regulation; and (4) may not engage in interstate or intrastate air commerce. 44 Stat. at 572. Subject to the foregoing conditions, foreign civil aircraft may be “navigated in the United States.” This term is not defined in the statute. Also, it is to be noted that the statute contains no express reference to non-stop flights or landing for non-traffic purposes. It seems clear that so long as a foreign aircraft does not engage in interstate or intrastate air commerce, both non-stop flights and landing for non-traffic purposes would fall within the terms “navigated in the United States” and “air commerce” as used in the Air Commerce Act of 1926. The term “navigation in the United States” as used in the statute includes any navigation through the air space over the territory of the United States or any part thereof. Id. §§ 2(e), 5(e); 44 Stat. at 569, 571. This term would, therefore, include a non-stop flight across the territory of the United States and a stop or stops in the United States for non-traffic purposes. The term “air commerce” is defined in the Act of 1926 to include “transportation in whole or in part by aircraft of persons or property for hire” and “navigation of aircraft in furtherance of a business.” Id. § 1; 44 Stat. at 568. Navigation of a foreign aircraft on a non-stop flight across the United States or a part thereof would seem to fall within both of these definitions. Likewise, the landing of a foreign aircraft in the United States for non-traffic purposes—refueling, for example—when done in connection with transportation by the aircraft of persons or property for hire, or in connection with navigation of the aircraft in furtherance of a business, seems clearly to fall within the meaning of the term “air commerce” as used in the statute. I find no apparent intent either in the language of the original Air Commerce Act of 1926 or its history to limit foreign aircraft to engaging in “foreign air commerce” within any restricted definition of this term that would exclude nonstop flights. On the contrary, the foregoing analysis of the provisions of the statute shows that non-stop flights of foreign civil aircraft and landing of civil aircraft for 117 Supplemental Opinions of the Office of Legal Counsel in Volume 1 non-traffic purposes are within the terms of the authorization contained in the statute as originally enacted. There seems, however, to have been some doubt as to the construction of the Air Commerce Act of 1926. Thus, in March 1938, Mr. Hester, Assistant General Counsel, Treasury Department, later Administrator of Civil Aeronautics, gave the following testimony before a subcommittee of the House Committee on Interstate and Foreign Commerce: While the authority of the Secretary of Commerce under that act [the Air Commerce Act of 1926] to permit the operation of foreign private aircraft in this country is clear, his authority to permit the operation of a foreign air carrier to this country is in doubt. Consequently, a provision has been inserted in the present bill providing that no foreign air carrier shall operate to the United States unless it secures from the Authority a permit to do so. The issuance of such permits would be subject to the approval of the President. Hearings on H.R. 9738 Before the H. Comm. on Interstate and Foreign Commerce, 75th Cong., 3d Sess. at 41 (1938). The Civil Aeronautics Act of 1938 created a Civil Aeronautics Authority and conferred certain powers and duties upon an Administrator. Pub. L. No. 75-706, § 201, 52 Stat. at 980-81. The title, Civil Aeronautics Authority, was changed to Civil Aeronautics Board by the provisions of the President’s Reorganization Plan 4 of 1940, § 7, 5 Fed. Reg. 2421, 2421–22, and certain changes have been made in the respective duties of the Board and the Administrator. See Permits for Flight of Foreign Aircraft into the United States, 40 Op. Att’y Gen. 136 (1941). For present purposes it is unnecessary to distinguish whether duties are vested in the Board or in the Administrator. Following are pertinent provisions of the Civil Aeronautics Act of 1938: Section 2 of the statute states that in the exercise and performance of its duties the Authority shall consider the following as being in the public interest— (a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; . . . (d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense; . . . (f) The encouragement and development of civil aeronautics. 118 Implementation of International Civil Aviation Agreements 52 Stat. at 980. Section 201(b) of the statute provides that there shall be in the Authority an Administrator, 52 Stat. at 981, and section 301 empowers and directs the Administrator “to encourage and foster the development of civil aeronautics and air commerce in the United States, and abroad,” 52 Stat. at 985. Section 402 provides in part— (a) No foreign air carrier shall engage in foreign air transportation unless there is in force a permit issued by the Authority authorizing such carrier so to engage; . . . (b) The Authority is empowered to issue such a permit if it finds that such carrier is fit, willing, and able properly to perform such air transportation and to conform to the provisions of this Act and the rules, regulations, and requirements of the Authority hereunder, and that such transportation will be in the public interest. 52 Stat. at 991. The Authority is authorized by paragraph (f) of section 402 to prescribe the duration of any permit and to attach to it such reasonable terms as, in its judgment, “the public interest may require.” 52 Stat. at 992. Paragraph (g) provides that any permit issued under section 402 may, after notice and hearing, be altered, modified, amended, suspended, canceled, or revoked by the Authority whenever it finds such action to be in the public interest. 52 Stat. at 992. Section 801 provides that the issuance, denial, transfer, amendment, cancellation, suspension, or revocation of the terms of any foreign air carrier permit issuable under section 402 shall be subject to the approval of the President. 52 Stat. at 1014. Section 802 provides that the Secretary of State “shall advise the Authority of, and consult with the Authority, concerning the negotiation of any agreements with foreign governments for the establishment or development of air navigation, including air routes and services.” 52 Stat. at 1014. Section 1102 provides that in exercising and performing its powers under the Act, “the Authority shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign countries.” 52 Stat. at 1026. The statute gives recognition to “agreements” entered into by the United States with foreign governments “for the establishment or development of air navigation, including air routes and services.” It will be noted that under the Civil Aeronautics Act of 1938 a foreign air carrier is required to obtain from the Civil Aeronautics Board a permit to engage in foreign air transportation. The issuance of any permit is subject to the approval of 119 Supplemental Opinions of the Office of Legal Counsel in Volume 1 the President. It is understood that if the Two Freedoms Agreement and the Five Freedoms Agreement are entered into by the United States, foreign air carriers who wish to make non-stop flights or who want permission to land in the United States for non-traffic purposes will be required to obtain permits from the Civil Aeronautics Board in the same manner as other foreign air carriers who make stops in the United States for traffic purposes. The Civil Aeronautics Act of 1938 (section 1107(i)(1) and (5)) amended section 6(c) of the Air Commerce Act of 1926 to read in part as follows: If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Civil Aeronautics Authority may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States. No foreign aircraft shall engage in air commerce otherwise than between any State, Territory, or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country. 52 Stat. at 1028 (underscored portions added by the 1938 amendment). The Civil Aeronautics Act of 1938 substituted for the provision in section 6(c) of the Air Commerce Act of 1926 that “no foreign aircraft shall engage in interstate or intrastate air commerce” the requirement that “no foreign aircraft shall engage in air commerce otherwise than between any State, Territory, or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country.” There is a question whether the Congress intended by this change in the provisions of the Air Commerce Act of 1926, and by the other provisions of the 1938 statute that I have mentioned, to prohibit foreign aircraft from making non-stop flights across the United States in connection with scheduled international air services. I find no such intention either in the language of the statute or in its history. Reading the provisions of section 6(c) of the Air Commerce Act of 1926, together with the provisions of the Civil Aeronautics Act of 1938, it seems to me that all that was intended was to prohibit foreign aircraft or foreign air carriers from engaging in interstate air commerce or intrastate air commerce. Section 1 of the Civil Aeronautics Act of 1938 contains the following definitions: (3) “Air Commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce. 120 Implementation of International Civil Aviation Agreements .... (20) “Interstate air commerce,” “overseas air commerce”, and “foreign air commerce,” respectively, mean the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between, respectively— (a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia; or between places in the same State of the United States through the air space over any place outside thereof; or between places in the same Territory or possession (except the Philippine Islands) of the United States, or the District of Columbia; (b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United States; or between a place in a Territory or possession of the United States, and a place in any other Territory or possession of the United States; and (c) a place in the United States and any place outside thereof, whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation. Under section 6 of the Air Commerce Act of 1926, as amended, foreign aircraft may be authorized “to be navigated in the United States.” It has been shown that this term includes non-stop flights. Section 6 further provides that no foreign aircraft shall engage in “air commerce” otherwise than between any State, Territory or possession of the United States and a foreign country. The term “air commerce” as used in section 6 before it was amended by the Civil Aeronautics Act of 1938 also includes non-stop flights. The term “air commerce” in the last sentence of section 6(c) of the 1926 Act, after the subsection was amended by the 1938 Act, is somewhat ambiguous for the reason that the definition of “air commerce” in the Act of 1938 differs from the definition of “air commerce” in the Act of 1926. The term “air commerce” as used in the 1938 Act includes any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce. This definition, therefore, as well as the definition of “air commerce” in the 1926 Act, seems to include non-stop flights. The Civil Aeronautics Act of 1938 is derived from S. 3845, 75th Cong., 3d Sess., and H.R. 9738, 75th Cong., 3d Sess. 121 Supplemental Opinions of the Office of Legal Counsel in Volume 1 S. 3845, as reported to the Senate and agreed to by the Senate, provided in section 1103: (b) . . . If a foreign country grants a similar privilege in respect of aircraft of the United States the Authority may authorize such foreign aircraft registered under the laws of such country to enter and be navigated within the United States. . . . (d) No foreign aircraft shall engage in interstate or overseas air commerce, or in the transportation of persons or property for compensation or hire, or be operated or navigated in the conduct or furtherance of a business or vocation, in commerce wholly within a State. 83 Cong. Rec. 6765 (1938). H.R. 9738, as reported to the House and agreed to by the House, contained the amendment to section 6(c) of the Air Commerce Act of 1926, which was finally adopted in the 1938 Act, providing that no foreign aircraft shall engage in air commerce otherwise than between any state and a foreign country. 83 Cong. Rec. 7100, 7104 (1938). The Senate bill repealed all of the provisions of the Air Commerce Act of 1926, and rewrote in the text of the bill such of the provisions that the Senate thought necessary to preserve. The House bill, on the other hand, repealed most of the 1926 Act, but preserved in existence and amended in certain respects other provisions of the 1926 Act. The conferees adopted the House amendment, dealing with “admission of foreign aircraft into the United States,” without, however, indicating that in their opinion there was any material difference between the Senate provision and the House provision. Where there was any substantial or material difference between a Senate provision and a House provision, the conference report called attention to the difference. See H.R. Rep. No. 75-2635, at 80–81 (1938). It thus appears that the provisions of the House bill and the Senate bill were each designed to prohibit foreign aircraft from engaging in interstate air commerce or overseas air commerce or air commerce wholly within a State. The amendment to the 1926 Act made by the 1938 Act authorizing foreign aircraft to engage in air commerce between the United States and foreign countries discloses no purpose to prohibit foreign air carriers from engaging in air commerce to the extent of making non-stop flights across territory of the United States or of landing in the United States for non-traffic purposes. The Civil Aeronautics Act of 1938 is intended to promote the development of civil aeronautics and air commerce in the United States and abroad. The statute should be construed consistently with this purpose and its provisions. In permitting foreign aircraft to engage in air commerce between the United States and a foreign 122 Implementation of International Civil Aviation Agreements country the Congress has disclosed no purpose to prohibit foreign aircraft from making commercial non-stop flights over the territory of the United States. Fairly construed, such non-stop flights of foreign aircraft fall within the provisions of the Air Commerce Act of 1926, as amended, and the provisions of the Civil Aeronautics Act of 1938. A construction that would prohibit foreign aircraft from engaging in commercial non-stop flights undoubtedly would preclude the Government of the United States from obtaining similar privileges from foreign governments for American air carriers. Such a construction would hamper and restrict the development of civil aeronautics and air commerce in the United States. It would be contrary to the provisions and purpose of the Air Commerce Act of 1926, as amended, and the Civil Aeronautics Act of 1938. III. The administrative practice supports the construction that I have suggested. Under the 1926 Act a number of bilateral agreements were entered into by the United States with foreign governments granting liberty of passage over our territory in time of peace, and providing for the establishment and operation of regular air routes by air transport companies “across the said territory, with or without intermediary landing, . . . subject to prior consent of the other party given on the principle of reciprocity.” Air Navigation Agreement, U.S.-Swe., art. 4, Oct. 9, 1933, E.A.S. No. 47, at 1-2; Air Navigation Agreement, U.S.-Nor., art. 4, Nov. 15, 1933, E.A.S. No. 50, at 1; Air Navigation Agreement, U.S.-S. Afr., art. 4, Sept. 20, 1933, E.A.S. No. 54, at 1-2; Air Navigation Agreement, U.S.-Den., art. 4, Apr. 16, 1934, E.A.S. No. 58, at 2. See also Air Navigation Agreement, U.S.-It., Oct. 31, 1931, E.A.S. No. 24; Air Navigation Agreement, U.S.-Gr. Brit., May 5, 1935, E.A.S. No. 76; Air Navigation Agreement, U.S.-Ir., Dec. 4, 1937, E.A.S. No. 110. Since 1938 additional agreements have been entered into. An agreement between the United States and Canada grants, subject to compliance with local laws and regulations, liberty of passage in time of peace above the territories of each of the parties. It is further agreed “that the establishment and operation by an enterprise of one of the Parties of a regular air route or services to, over, or away from the territory of the other Party, with or without a stop, shall be subject to the consent of such other Party.” Air Navigation Agreement, U.S.-Can., art. 3, Aug. 1, 1938, E.A.S. No. 129, at 1. In a further exchange of notes, the Government of the United States and the Government of Canada agreed, subject to compliance with their laws and regulations, to grant to air carrier enterprises of the other Party permits for nonstop services through the air space over its territory between two 123 Supplemental Opinions of the Office of Legal Counsel in Volume 1 points within the territory of the other Party; provided however that inland non-stop services between the United States and Alaska shall be the subject of a separate understanding. Air Transport Services Agreement, U.S.-Can., art. 3, Aug. 18, 1939, E.A.S. No. 159, at 1. On July 15, 1939, the United States entered into an agreement with France by which each contracting party granted, subject to its laws and regulations, in time of peace, “liberty of passage above its territory” to the registered civil aircraft of the other party, and agreed that the establishment and operation of a regular air route or air transport service to, over or away from the territory of the other, with or without stop, should be subject to the consent of the other party. Air Navigation Agreement, U.S.-Fr., art. 4, Aug. 15, 1939, E.A.S. No. 152, at 2. On June 14, 1939, the United States and Liberia entered into an agreement, effective June 15, 1939, providing that, subject to compliance with local laws and regulations, civil aircraft, not engaged in regular scheduled services, “shall be accorded liberty of passage above and of landing upon the territory of the other Party.” Air Navigation Agreement, U.S.-Liber., art. 1(b), June 15, 1939, E.A.S. No. 166, at 3. IV. Accordingly, confining the advice in the manner that I have mentioned in this memorandum, I believe that the Department of State can be advised informally that the statutes permit the Government of the United States to enter into an agreement with the government of a foreign country granting on the principle of reciprocity, in respect of scheduled international air services, the privilege to fly across the territory of the United States without landing, and the privilege to land in the United States for non-traffic purposes, subject to compliance with the laws and regulations of the United States. W.H. EBERLY Attorney-Adviser Office of the Assistant Solicitor General 124

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Authority of the General Services Board of Contract Appeals to Order Reimbursement of the Permanent Judgment Fund for Awards of Bid Protest Costs T h e G e n e ra l S e rv ic e s B o a rd o f C o n tra c t A p p e a ls d o e s n o t h a v e th e a u th o rity to o r d e r th e D e p a rtm e n t o f th e A rm y to re im b u rse th e p e rm a n e n t in d e fin ite ju d g m e n t fu n d f o r a B o a rd a w a rd o f b id p ro te s t c o s ts u n d e r th e C o m p e titio n in C o n tra c tin g A ct. May 29, 1990 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D epa rtm en t o f t h e A rm y This memorandum responds to your office’s request for the opinion of this Office on the authority of the General Services Board of Contract Ap­ peals (“GSBCA” or the “Board”) to order the Department of the Army (“Army”) to reimburse the permanent indefinite judgment fund, 31 U.S.C. § 1304, for bid protest costs under the Competition in Contracting Act (“CICA”), Pub. L. No. 98-369, 98 Stat. 1175, 1182-84 (1984) (codified in relevant part at 40 U.S.C. § 759(f)(5)). See Letter to William P. Barr, Assis­ tant Attorney General, Office of Legal Counsel, from Colonel William A. Aileo, Chief, Litigation Division, Office of the Judge Advocate General, United States Department of the Army (Jan. 30, 1990) (the “Army Letter”). We conclude that the Board does not have authority to order the Army to reimburse the judgment fund. I. Background Your inquiry was prompted by two GSBCA cases, Julie Research Labora­ tories, Inc., 1989-1 B.C.A (CCH)1 21,213 at 107,020 (Sept. 23, 1988), appeal dismissed. United States v. Julie Research Laboratories, Inc., 881 F.2d 1067 (Fed. Cir. 1989), and Bedford Computer Corp., 1990-1 B.C.A (CCH) f 22,377 (Oct. 13, 1989). In both these cases, the Board awarded bid protest costs against the Army under section 2713 of CICA, 40 U.S.C. § 759(0(5). The Army disputes the Board’s conclusion in the Julie Research Labora­ tories and Bedford Computer cases. It maintains that the Board has exceeded its authority under 40 U.S.C. § 759(f)(6)(C) by requiring it to reimburse the 111 judgm ent fund. Moreover, components of the federal government other than the Army, including the Department of the Air Force, the National Transpor­ tation Safety Board, and the General Accounting Office, are interested in the resolution of the issue. See Army Letter at l . 1 Section 759(f)(5)(C) provides that, when the Board makes a determina­ tion that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to the section, the Board may, in accordance with section 1304 of title 31, further de­ clare an appropriate interested party to be entitled to the costs of — (i) filing and pursuing the protest, including reason— able attorney’s fees, and (ii) bid and proposal preparation. Section 759(f)(5)(C) explicitly requires that the Board’s awards of bid protest costs be made “in accordance with” 31 U.S.C. § 1304, the Automatic Payment of Judgment Act. That act created the permanent judgment fund. Section 1304 thus appropriates necessary amounts to pay final judgments, awards, settlements, and interest and costs specified in the judgments when the following three conditions are satisfied: (1) payment is not otherwise provided for; (2) payment is certified by the Comptroller General; and (3) the judgment, award, or settlement is payable . . . under a decision of a board of contract appeals. Despite section 759(f)(5)(C)’s express reference to payments from the judgm ent fund, the Board in both Julie Research Laboratories and Bedford C om puter cases required the Army to reimburse the permanent judgment fund for the award, thus effectively requiring the Army to pay the costs from its procurement appropriation. In Julie Research Laboratories ,2 the Board supported its decision to require the Army to reimburse the judgment fund as follows: 1 A re c e n t R ep o rt to C ongress fro m the G eneral A cco u n ting O ffice has said that “there has been som e c o n fu s io n in m a k in g adm inistrative an d policy d ecisio n s” as a resu lt o f d isagreem ents o v e r the re q u ire ­ m e n ts o f th e law , an d h as called fo r co rrectiv e legislation. G eneral A ccounting O ffice, ADP B id Pro­ tests, R e p o rt to th e C h airm an , S u b co m m ittee o n Federal Services, Post O ffice, and C ivil S ervice, C o m ­ m itte e on G o v e rn m e n ta l A ffairs, U .S . S enate, at 33 (M arch, 1990) (“GAO Report"). 1 In Julie Research Laboratories, th e A rm y ’s M issile C o m m and had issued a solicitatio n fo r a m u lti­ y e a r p ro c u re m e n t o f autom atic d ata p ro cessin g eq u ip m en t ( “A D P E ” ). Julie R esearch L a boratories p ro ­ te ste d th e so lic ita tio n a n d prevailed o n a sig n ifican t issu e. It then applied for $25,754.88 in costs. T he B o ard a w ard ed it $20,986.13. 112 Because this monetary award is inextricably connected with the true economic cost of the procurement, it is appropriate that the fund be reimbursed by the agency whose appropria­ tions were used for the contract out of available funds or by obtaining additional appropriations for such purposes. Such reimbursement,is consistent with the purpose underlying 41 U.S.C. § 612 (1982), see S. Rep. No. 1118, 95th Cong., 2d Sess. 33 (1978), and with our responsibility to “accord due weight to the policies of [the Brooks Act, [Pub. L. No. 89306, 79 Stat. 1127 (1965)]] and the goals of economic and efficient procurement . . . .” 40 U.S.C. § 759(h)(5)(A) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C). . . . Accordingly, we revise the delegation of authority to require the agency to make the reim bursem ent. 40 U .S.C . § 759(h)(5)(B) (Supp. Ill 1985). Julie Research Labs., Inc. at 89-1 B.C.A 1 21,213 at 107,021. Administra­ tive Judge Borwick dissented in part. He stated: [A]bsent a statutory requirement for reimbursement of the judgment fund in the Brooks Act, requiring agencies to reim ­ burse the judgment fund is not appropriate. The majority relies on that portion of the Brooks Act which empowers the Board to order any additional relief which it is authorized to provide under statute or regulation. 40 U.S.C. § 759(h)(6)(C) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C)). I do not believe that our broad authority to grant relief applies to this matter of fiscal and accounting policy which is purely a matter of statutory direction. There are sound policy rea­ sons for the result reached by the majority as the reimbursement. However, if Congress had wished to adopt that policy, it would have specifically done so, as it did in the CDA [Contract Dis­ putes Act, 41 U.S.C. §§ 609-613, Pub. L. No. 95-563, 92 Stat. 2388 (1978)]. As Congress has not, I would not revise the DPA [delegation of procurement authority] to require such re­ imbursement. Id. The Army then appealed this judgment to the Federal Circuit, which dis­ m isse d the appeal on the ground th at the d isp u te w as p u re ly intragovemmental: 113 [T]he government’s obligation to pay Julie has been deter­ mined and Julie has received everything it could recover by receiving a decision on the merits in its favor which has not been appealed. A decision by this court o f this intra-govern­ ment dispute “cannot affect the rights of [the] litigants," North Carolina v. Rice, 404 U.S. [244,] at 246 [(1971)], and we must, therefore, conclude that the issue presented is not justi­ ciable. United States v. Julie Research Labs., Inc., 881 F.2d 1067, 1068 (Fed. Cir. 1989). In Bedford Computer, the Board, citing Julie Research Laboratories, also ordered the Army to reimburse the judgment fund in the amount of its award o f costs.3 Bedford Computer, 1990-1 B.C.A 1 22,377 at 112,434 (Oct. 13, 1989). Concurring separately in Bedford Computer, Administrative Judge Hendley agreed that the judgment fund should be reimbursed. He added that in future settlements of protest costs, the respondent agency should pay directly “in accordance with the Federal Acquisition Regulation (FAR).” Id. Judge Hendley wrote: So long as agency funds are available, to seek to have the payment made from the judgment fund and then reimburse that fund, is economically inane and constitutes a pointless exercise in unnecessary paper shuffling. That an agency should pay such costs directly, and not through the conduit of the judgm ent fund, is clearly directed by FAR 33.105(0 [48 C.F.R. § 33.105(0 (1988)] which states: (0(1) The GSBCA may declare an appropriate interested party to be entitled to the cost of — (1) Filing and pursuing the protest, including reasonable attorney’s fees; and (ii) Bid and proposal preparation. (2) Costs awarded under (0(1) above shall be paid promptly by the agency out of funds available to or fo r the use o f [4] the acquisition of supplies or services. 3 In B edford C om puter th e Army c o n c e d e d that it h a d failed to c o m p ly w ith c e rta in p ro c u re m e n t s ta tu te s a n d re g u la tio n s . T h e Army a n d the p ro te ste r d e c id e d to s e ttle the p ro test. T he B o ard found th a t th e p ro te s to r h as p re v a ile d on a s ig n ific a n t issu e, a n d aw ard ed it $ 75,000 in p ro te st co sts. ‘ P e rh a p s sh o u ld read : “o r.” 114 Although the FAR is couched in terms of payment of costs awarded by the Board in a case where those costs were con­ tested, it would be sheer sophistry to contend that in those instances where the parties have settled their dispute, those same costs, reflected in their settlement, should not be paid from the agency’s funds as well. Id. at 112,434-35. II. Analysis We conclude that a Board award of costs under CICA is payable out of the judgment fund, and that the Board does not have the authority to order an agency to reimburse the judgment fund for having paid such an award.3 1. The only substantive question concerning the availability of the judg­ ment fund to pay bid protest costs in the Julie Research Laboratories and Bedford Computer cases is whether the first of section 1304(a)(l)’s three conditions is met,6 i.e., whether payment of a Board award is “otherwise provided for” from some other appropriation. As a general rule, “agency appropriations are not available to pay judgments. Exceptions are recog­ nized only where the appropriations or special funds for the activities out of which the cause of action arose expressly include provisions for the payment of judgments, or where other express provisions of law include such author­ ity.” GAO Principles at 12-3. We are aware of no statutory authority — and none was cited in Julie Research Laboratories or Bedford Computer — that would require the Army either to pay Board awards of bid protest costs out of its own appropriations, or to reimburse the judgment fund for having paid such awards. There is no provision in either 40 U.S.C. § 759 or in 31 U.S.C. § 1304 which requires a procuring agency to reimburse the judgment fund when bid protest costs are ’ T his dispute b etw een the A rm y and th e Board, as the Federal C ircu it held, is purely a d isag ree m e n t w ithin the G o v ern m en t and in no w ay affects the rights o r rem edies o f parties (such as Julie R esearch L aboratories, Inc.) outside the executive branch. C onsequently, as the court held, the d isp u te w as not ju stic ia b le un d er A rticle III. See United States v. Julie Research Labs., Inc., 881 F.2d at 1068. B ecause the d ispute arises o n ly betw een tw o co m ponents o f the executive branch, this O ffice has ju risd ic tio n to resolve it. See § 1-401 o f Exec. O rder No. 12146, 3 C.F.R. 4 0 9 ,4 1 1 (1980), as am ended by E x ec. O rd e r No. 12608, 3 C.F.R. 245 (1 9 8 8 ) (A ttorney G eneral has authority to resolve interagency d isp u te s). T h e A ttorney G eneral h a s d eleg ated to this O ffice his au th o rity to pro v id e legal o pinions and a d v ice to the P resident an d heads o f the E xecutive and m ilitary departm ents. See 28 U .S.C . § 5 1 0 (A ttorney G e n e ra l’s a u th o rity to deleg ate); id. § § 5 1 1 -5 1 3 (d u ties o f A ttorney G eneral); 28 C .F R . § 0.25 (m atters d e le g ate d to O L C ); see generally M em orandum fo r H elen S. L essin, D irector, Federal Legal C ouncil, from L eon U lm an, D eputy A ssistan t A ttorney G en eral, O ffice o f L egal C ounsel, Re- OLC Policies Regarding Issuance and Release o f Opinions (Sept. 10, 1980). ‘ T h e second statu to ry requirem ent — the necessity for certificatio n by the C om p tro ller G en eral — im poses no su b stan tiv e co n strain ts on access to the ju d g m e n t fund: the C om p tro ller G e n eral’s c e rtific a ­ tio n follow s from satisfactio n o f the o th er tw o requirem ents and co m p letion o f the necessary p a perw ork. C ontinued 115 awarded against it.7 We recognize that an award to a contractor by an agency board o f contract appeals under the Contract Disputes Act (“CDA”), Pub. L. No. 95-563, 92 Stat. 2388 (1978) (codified at 41 U.S.C. §§ 609-613), when paid by the judgment fund, must thereafter be reimbursed by the procuring agency whose appropriations were used for the contract at issue. See 41 U.S.C. § 612(c). But CDA is inapplicable here because the awards at issue were not made under CDA, but under CICA, a wholly distinct enactment.8 Hence, we conclude, Congress intended that Board awards of these bid pro­ test costs be paid out of the judgment fund, rather than being statutorily subject to reimbursement.9 2. The remaining question is whether the Board exceeded its authority in ordering the Army to reimburse the judgment fund for having paid the awards. We conclude that the Board has exceeded its authority. In Julie Research Laboratories, the Board majority relied on 40 U.S.C. § 759(f)(6)(C), which states: [N]othing contained in this subsection shall affect the board’s power to order any additional relief which it is authorized to provide under any statute or regulation. For two independent reasons, this provision does not, in our opinion, autho­ rize the Board to require a procuring agency to reimburse the judgment fund for the payment of protest cost awards. First, an order requiring the agency to reimburse the judgment fund would provide relief a t all — still less “additional re lie f’ — to the bid protester, since the protester’s award has already been paid in full by the judgment fund. From the protester’s point of view, it makes no difference whether the agency’s procurement appropriation reimburses the judgment fund after the award is paid: the amount o f the award is exactly the same. Thus, requiring that the amount of the award be taken from agency procurement appropriations ‘ (....c o n tin u e d ) See Availability o f the Judgment F und fo r the Payment o f Judgments or Settlements in Suits Brought A g a in st the Com m odity Credit Corporation Under the Federal Tort Claims Act, 13 Op. O .L .C . 362, 3636 4 & n .l (1 9 8 9 ); accord G eneral A cco u n tin g O ffice, Principles o f Federal Appropriations Law, at 12-2 (1 9 8 2 ) ( “ G AO P rinciples"). The th ird req u irem en t — that the aw ard o r settlem ent be pay ab le “ under a d ecisio n o f a board o f contract appeals" — is m anifestly satisfied by aw ards issued by the Board. ’ S e c tio n 1304(c) re fe rs to a situ atio n in w hich the ju d g m e n t fu n d is a vailable to pay a ju d g m e n t or c o m p ro m is e s ettlem e n t b u t must th e re a fte r be reim b u rsed . T he section is irrelevant here: it only c o n ­ c e rn s c a se s in w h ich th e ju dgm ent o r settlem en t “arises out o f an express o r im plied c o n tra c t” m ade by th e A rm y an d A ir F o rce Exchange S e rv ice, the N avy E xchanges, the M arine C orps E xchanges, the C o a s t G u a rd E x c h a n g e s, o r the E x ch an g e C ouncils o f the N ational A eronautics and Space A d m in istra ­ tio n . See P u b . L. N o. 9 1 -3 5 0 , 84 Stat. 4 4 9 (1 9 7 0 ) (codified at 31 U .S .C . § 1304(c)). ‘ C IC A , w h ic h g iv es th e Board a u th o rity o v er A D PE pro tests, w as not an am endm ent to C D A but to the B ro o k s A ct, Pub. L . N o. 89-306, 79 S ta t. 1127 (1 9 6 5 ) (co d ified at 4 0 U .S.C . § 7 5 9 (0 ). H ence the re im ­ b u rse m e n t re q u ire m e n t o f section 612 o f C D A does not apply to B oard aw ards under the B rooks A ct. ’ T h is O ffice re a ch e d a sim ilar co n clu sio n in Payment o f Attorney Fee Awards Against the United States U nder 28 U.S.C. § 2412(b), 7 Op. O .L .C . 180 (1 9 8 3 )(ju d gm ent fund available by statute to pay fee a w ard s). A ccord 6 3 C o m p . Gen. 260, 26 3 -6 4 & n.3 (1984) (c itin g R ose M em o). 116 and transferred to the permanent judgment fund is purely a matter of ac­ counting and fiscal policy, not a question of the scope of relief.10 Hence, 40 U.S.C. § 759(f)(6)(C) cannot provide authority for the Board to order the Army to reimburse the judgment fund for the cost of the award. Second, subsection 759(f)(6)(C) is not, as the Julie Research Laborato­ ries majority mistakenly implied, itself an affirmative grant of authority to the Board. The subsection merely states that nothing in it shall affect the Board’s power to order “additional relief’ which the Board is otherw ise empowered to provide. Thus, even on the assumption (which we have re­ jected) that requiring the procuring agency to reimburse the judgment fund could constitute “additional relief,” the Board would still need to be “autho­ rized to provide” such relief under some “statute or regulation” other than 40 U.S.C. § 759(f)(6)(C) itself. No other statute provides the needed authority. In Julie Research Labo­ ratories, 1989-1 B.C.A. f 21,213 at 107,021 (Sept. 23, 1988), the Board majority stated only that ordering reimbursement was “consistent with the purpose underlying 41 U.S.C. § 612” and with the Board’s responsibility under 40 U.S.C. § 759(f)(5)(A) to “accord due weight to the policies of [the Brooks Act] and the goals of economic and efficient procurement.” How­ ever, neither 41 U.S.C. § 612 nor 40 U.S.C. § 759(f)(5)(A) authorizes the Board to order reimbursement of the judgment fund." We recognize that, in Bedford Computer, the concurring opinion cited a regulatory source of authority. See id., 1990-1 B.C.A. U 22,377 at 112,435 (Hendley, A.J., concurring separately). The cited regulation, FAR 33.105(f)(2), 48 C.F.R. § 33.105(0(2) (1988), states that protest costs awarded by the Board “shall be paid promptly by the agency out of funds available to or for the use of the acquisition of supplies or services.” We understand,12 however, that this Federal Acquisition Regulation was not intended to mandate that Board awards of bid protest costs under the Brooks Act be paid from agency procurement appropriations rather than >0It a p p ea rs that the d ecisio n o f the B oard m ajority in Julie Research Laboratories relied o n an u n d e r­ stan d in g o f sound acco u n tin g policy. It stated th at “ [b]ecause th is m onetary aw ard is in e x tric a b ly c o n n ec te d w ith the true econom ic c o st o f the p rocurem ent, it is app ro p riate th a t the [judgm ent] fu n d be reim b u rsed by the agency w hose ap p ro p riatio n s w ere used for the contract o u t o f a vailable funds o r by o b ta in in g additional ap p ro p riatio n s fo r such pu rp o ses.” Id., 1989-1 B.C.A . 1 21,213 at 107,021. H o w ­ ever, as the d issen t c o rrectly pointed out, “o ur broad authority to g ran t re lie f [does not] a p p l[y ] to this m atter o f fiscal and a cco u n tin g policy w hich is purely a m atter o f statutory d ire c tio n " Id. " A s ex p la in ed above, 41 U .S C. § 612 provides th at a m onetary aw ard to a c o n tra c to r by an ag en cy board o f c o n tract appeals in a CDA case m ust be reim bursed to the ju d g m e n t fund. N o co m p a ra b le p ro v isio n ex ists for Brooks Act cases. Rather, 4 0 U .S .C . § 7 5 9 (f)(5 )(C ) m erely states th a t the B oard m ay hold a bid p ro testo r to be en titled to protest costs to be paid “ in accordance w ith sec tio n 1304,” the ju d g m e n t fu n d statute. S ection 759(f)(5 )(A ) instructs the B oard to take account o f the policy o f the B rooks A c t and o f the g oals o f eco n o m ic and efficien t procurem ent w hen “ m aking a decision on the merits o f p ro te sts brought u n d e r this sectio n ” (em phasis added). T h at language does not authorize the B oard to d e c id e , after m aking its decision on the m erits, w h eth er paym ent for an aw ard o f protest c o sts is to c o m e from the ju d g m e n t fund or from agency appropriations. P e r telep h o n e co n v ersatio n with Mr. Jack M iller, D eputy A sso ciate G eneral C ounsel, G S A . 117 from the judgm ent fund.13 (Apparently, the draftsmen of the regulation over­ looked the fact that protests costs in CICA cases, unlike CDA cases, were to be paid out o f the judgment fund.) If the regulation were read to require agencies to pay such costs without any recourse to the judgment fund, we would find it invalid. The plain language of both the judgment fund statute, 31 U.S.C. § 1304, and of the Brooks Act provision that refers to it, 40 U.S.C. § 759(f)(5)(C), compels the conclusion that Board awards of bid protest cases are payable only out of the judgment fund, not out of the agency’s appropriation.14 Insofar as a regulation conflicts with the express provisions of a statute, the regulation is without effect. See, e.g., Dole v. U nited States Steelworkers o f Am., 494 U.S. 26, 42 & n.10 (1990); Board o f G overnors o f the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986); A rizona Grocery Co. v. Atchison T. & S.F. Ry. Co., 284 U.S. 370, 387 (1932); 3 Op. O.L.C. 457, 459 (1979). Accordingly, we conclude that the Board is not validly authorized by statute or by regulations to order reimbursement. III. Conclusion The General Services Board of Contract Appeals lacks the authority to order the reimbursement o f the judgment fund from a procuring agency’s appropriation where the judgment fund has paid a Board award o f bid pro­ test costs against the agency in a case decided under 40 U.S.C. § 759. JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel ' ’ F u rth er, n o n e o f th e th re e statutes — 4 0 U .S.C . § 4 8 6 (c); 10 U .S .C . ch. 137; 42 U .S .C . § 2453(c) — c ite d as a u th o ritie s fo r th e FAR re g u la tio n , see 50 Fed. R eg . 2270 (1985), ex p ressly authorizes the G e n ­ e ra l S e rv ic e s A d m in istra tio n to m an d ate, no tw ith stan d in g 4 0 U .S .C . § 759(f)(5)(C ), th a t p ay m en t o f G S B C A b id p ro te st c o st aw ards in B ro o k s A ct cases b e m ad e d irectly from ag en cy app ro p riatio n s instead o f fro m the ju d g m e n t fu n d . Nor does a n y o f those s tatu tes allow the B oard to o rd e r the ju d g m e n t fund to be re im b u rse d fro m a g en cy appropriations for h aving p aid such aw ards. 14 T h e G A O e x p re ssly agrees with th e co n clu sio n , o b serv in g that “ w hile C IC A requires th a t G SB C A p a y m e n ts b e m ade from th e Judgm ent Fund, the F ed eral A cquisition R egulation pro v id es th a t these p a y m e n ts m u st be m a d e fro m the a g e n c y ’s funds a v ailab le for the acquisition o f supplies o r services. The F ederal A cquisition Regulation is inconsistent with CICA in this regard." GAO Report at 62 (e m p h a sis a d d ed ). 118

Write a legal research memo on the following topic.

Authority of the General Services Board of Contract Appeals to Order Reimbursement of the Permanent Judgment Fund for Awards of Bid Protest Costs T h e G e n e ra l S e rv ic e s B o a rd o f C o n tra c t A p p e a ls d o e s n o t h a v e th e a u th o rity to o r d e r th e D e p a rtm e n t o f th e A rm y to re im b u rse th e p e rm a n e n t in d e fin ite ju d g m e n t fu n d f o r a B o a rd a w a rd o f b id p ro te s t c o s ts u n d e r th e C o m p e titio n in C o n tra c tin g A ct. May 29, 1990 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D epa rtm en t o f t h e A rm y This memorandum responds to your office’s request for the opinion of this Office on the authority of the General Services Board of Contract Ap­ peals (“GSBCA” or the “Board”) to order the Department of the Army (“Army”) to reimburse the permanent indefinite judgment fund, 31 U.S.C. § 1304, for bid protest costs under the Competition in Contracting Act (“CICA”), Pub. L. No. 98-369, 98 Stat. 1175, 1182-84 (1984) (codified in relevant part at 40 U.S.C. § 759(f)(5)). See Letter to William P. Barr, Assis­ tant Attorney General, Office of Legal Counsel, from Colonel William A. Aileo, Chief, Litigation Division, Office of the Judge Advocate General, United States Department of the Army (Jan. 30, 1990) (the “Army Letter”). We conclude that the Board does not have authority to order the Army to reimburse the judgment fund. I. Background Your inquiry was prompted by two GSBCA cases, Julie Research Labora­ tories, Inc., 1989-1 B.C.A (CCH)1 21,213 at 107,020 (Sept. 23, 1988), appeal dismissed. United States v. Julie Research Laboratories, Inc., 881 F.2d 1067 (Fed. Cir. 1989), and Bedford Computer Corp., 1990-1 B.C.A (CCH) f 22,377 (Oct. 13, 1989). In both these cases, the Board awarded bid protest costs against the Army under section 2713 of CICA, 40 U.S.C. § 759(0(5). The Army disputes the Board’s conclusion in the Julie Research Labora­ tories and Bedford Computer cases. It maintains that the Board has exceeded its authority under 40 U.S.C. § 759(f)(6)(C) by requiring it to reimburse the 111 judgm ent fund. Moreover, components of the federal government other than the Army, including the Department of the Air Force, the National Transpor­ tation Safety Board, and the General Accounting Office, are interested in the resolution of the issue. See Army Letter at l . 1 Section 759(f)(5)(C) provides that, when the Board makes a determina­ tion that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to the section, the Board may, in accordance with section 1304 of title 31, further de­ clare an appropriate interested party to be entitled to the costs of — (i) filing and pursuing the protest, including reason— able attorney’s fees, and (ii) bid and proposal preparation. Section 759(f)(5)(C) explicitly requires that the Board’s awards of bid protest costs be made “in accordance with” 31 U.S.C. § 1304, the Automatic Payment of Judgment Act. That act created the permanent judgment fund. Section 1304 thus appropriates necessary amounts to pay final judgments, awards, settlements, and interest and costs specified in the judgments when the following three conditions are satisfied: (1) payment is not otherwise provided for; (2) payment is certified by the Comptroller General; and (3) the judgment, award, or settlement is payable . . . under a decision of a board of contract appeals. Despite section 759(f)(5)(C)’s express reference to payments from the judgm ent fund, the Board in both Julie Research Laboratories and Bedford C om puter cases required the Army to reimburse the permanent judgment fund for the award, thus effectively requiring the Army to pay the costs from its procurement appropriation. In Julie Research Laboratories ,2 the Board supported its decision to require the Army to reimburse the judgment fund as follows: 1 A re c e n t R ep o rt to C ongress fro m the G eneral A cco u n ting O ffice has said that “there has been som e c o n fu s io n in m a k in g adm inistrative an d policy d ecisio n s” as a resu lt o f d isagreem ents o v e r the re q u ire ­ m e n ts o f th e law , an d h as called fo r co rrectiv e legislation. G eneral A ccounting O ffice, ADP B id Pro­ tests, R e p o rt to th e C h airm an , S u b co m m ittee o n Federal Services, Post O ffice, and C ivil S ervice, C o m ­ m itte e on G o v e rn m e n ta l A ffairs, U .S . S enate, at 33 (M arch, 1990) (“GAO Report"). 1 In Julie Research Laboratories, th e A rm y ’s M issile C o m m and had issued a solicitatio n fo r a m u lti­ y e a r p ro c u re m e n t o f autom atic d ata p ro cessin g eq u ip m en t ( “A D P E ” ). Julie R esearch L a boratories p ro ­ te ste d th e so lic ita tio n a n d prevailed o n a sig n ifican t issu e. It then applied for $25,754.88 in costs. T he B o ard a w ard ed it $20,986.13. 112 Because this monetary award is inextricably connected with the true economic cost of the procurement, it is appropriate that the fund be reimbursed by the agency whose appropria­ tions were used for the contract out of available funds or by obtaining additional appropriations for such purposes. Such reimbursement,is consistent with the purpose underlying 41 U.S.C. § 612 (1982), see S. Rep. No. 1118, 95th Cong., 2d Sess. 33 (1978), and with our responsibility to “accord due weight to the policies of [the Brooks Act, [Pub. L. No. 89306, 79 Stat. 1127 (1965)]] and the goals of economic and efficient procurement . . . .” 40 U.S.C. § 759(h)(5)(A) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C). . . . Accordingly, we revise the delegation of authority to require the agency to make the reim bursem ent. 40 U .S.C . § 759(h)(5)(B) (Supp. Ill 1985). Julie Research Labs., Inc. at 89-1 B.C.A 1 21,213 at 107,021. Administra­ tive Judge Borwick dissented in part. He stated: [A]bsent a statutory requirement for reimbursement of the judgment fund in the Brooks Act, requiring agencies to reim ­ burse the judgment fund is not appropriate. The majority relies on that portion of the Brooks Act which empowers the Board to order any additional relief which it is authorized to provide under statute or regulation. 40 U.S.C. § 759(h)(6)(C) (Supp. Ill 1985) (to be recodified at 40 U.S.C. § 759(f)(6)(C)). I do not believe that our broad authority to grant relief applies to this matter of fiscal and accounting policy which is purely a matter of statutory direction. There are sound policy rea­ sons for the result reached by the majority as the reimbursement. However, if Congress had wished to adopt that policy, it would have specifically done so, as it did in the CDA [Contract Dis­ putes Act, 41 U.S.C. §§ 609-613, Pub. L. No. 95-563, 92 Stat. 2388 (1978)]. As Congress has not, I would not revise the DPA [delegation of procurement authority] to require such re­ imbursement. Id. The Army then appealed this judgment to the Federal Circuit, which dis­ m isse d the appeal on the ground th at the d isp u te w as p u re ly intragovemmental: 113 [T]he government’s obligation to pay Julie has been deter­ mined and Julie has received everything it could recover by receiving a decision on the merits in its favor which has not been appealed. A decision by this court o f this intra-govern­ ment dispute “cannot affect the rights of [the] litigants," North Carolina v. Rice, 404 U.S. [244,] at 246 [(1971)], and we must, therefore, conclude that the issue presented is not justi­ ciable. United States v. Julie Research Labs., Inc., 881 F.2d 1067, 1068 (Fed. Cir. 1989). In Bedford Computer, the Board, citing Julie Research Laboratories, also ordered the Army to reimburse the judgment fund in the amount of its award o f costs.3 Bedford Computer, 1990-1 B.C.A 1 22,377 at 112,434 (Oct. 13, 1989). Concurring separately in Bedford Computer, Administrative Judge Hendley agreed that the judgment fund should be reimbursed. He added that in future settlements of protest costs, the respondent agency should pay directly “in accordance with the Federal Acquisition Regulation (FAR).” Id. Judge Hendley wrote: So long as agency funds are available, to seek to have the payment made from the judgment fund and then reimburse that fund, is economically inane and constitutes a pointless exercise in unnecessary paper shuffling. That an agency should pay such costs directly, and not through the conduit of the judgm ent fund, is clearly directed by FAR 33.105(0 [48 C.F.R. § 33.105(0 (1988)] which states: (0(1) The GSBCA may declare an appropriate interested party to be entitled to the cost of — (1) Filing and pursuing the protest, including reasonable attorney’s fees; and (ii) Bid and proposal preparation. (2) Costs awarded under (0(1) above shall be paid promptly by the agency out of funds available to or fo r the use o f [4] the acquisition of supplies or services. 3 In B edford C om puter th e Army c o n c e d e d that it h a d failed to c o m p ly w ith c e rta in p ro c u re m e n t s ta tu te s a n d re g u la tio n s . T h e Army a n d the p ro te ste r d e c id e d to s e ttle the p ro test. T he B o ard found th a t th e p ro te s to r h as p re v a ile d on a s ig n ific a n t issu e, a n d aw ard ed it $ 75,000 in p ro te st co sts. ‘ P e rh a p s sh o u ld read : “o r.” 114 Although the FAR is couched in terms of payment of costs awarded by the Board in a case where those costs were con­ tested, it would be sheer sophistry to contend that in those instances where the parties have settled their dispute, those same costs, reflected in their settlement, should not be paid from the agency’s funds as well. Id. at 112,434-35. II. Analysis We conclude that a Board award of costs under CICA is payable out of the judgment fund, and that the Board does not have the authority to order an agency to reimburse the judgment fund for having paid such an award.3 1. The only substantive question concerning the availability of the judg­ ment fund to pay bid protest costs in the Julie Research Laboratories and Bedford Computer cases is whether the first of section 1304(a)(l)’s three conditions is met,6 i.e., whether payment of a Board award is “otherwise provided for” from some other appropriation. As a general rule, “agency appropriations are not available to pay judgments. Exceptions are recog­ nized only where the appropriations or special funds for the activities out of which the cause of action arose expressly include provisions for the payment of judgments, or where other express provisions of law include such author­ ity.” GAO Principles at 12-3. We are aware of no statutory authority — and none was cited in Julie Research Laboratories or Bedford Computer — that would require the Army either to pay Board awards of bid protest costs out of its own appropriations, or to reimburse the judgment fund for having paid such awards. There is no provision in either 40 U.S.C. § 759 or in 31 U.S.C. § 1304 which requires a procuring agency to reimburse the judgment fund when bid protest costs are ’ T his dispute b etw een the A rm y and th e Board, as the Federal C ircu it held, is purely a d isag ree m e n t w ithin the G o v ern m en t and in no w ay affects the rights o r rem edies o f parties (such as Julie R esearch L aboratories, Inc.) outside the executive branch. C onsequently, as the court held, the d isp u te w as not ju stic ia b le un d er A rticle III. See United States v. Julie Research Labs., Inc., 881 F.2d at 1068. B ecause the d ispute arises o n ly betw een tw o co m ponents o f the executive branch, this O ffice has ju risd ic tio n to resolve it. See § 1-401 o f Exec. O rder No. 12146, 3 C.F.R. 4 0 9 ,4 1 1 (1980), as am ended by E x ec. O rd e r No. 12608, 3 C.F.R. 245 (1 9 8 8 ) (A ttorney G eneral has authority to resolve interagency d isp u te s). T h e A ttorney G eneral h a s d eleg ated to this O ffice his au th o rity to pro v id e legal o pinions and a d v ice to the P resident an d heads o f the E xecutive and m ilitary departm ents. See 28 U .S.C . § 5 1 0 (A ttorney G e n e ra l’s a u th o rity to deleg ate); id. § § 5 1 1 -5 1 3 (d u ties o f A ttorney G eneral); 28 C .F R . § 0.25 (m atters d e le g ate d to O L C ); see generally M em orandum fo r H elen S. L essin, D irector, Federal Legal C ouncil, from L eon U lm an, D eputy A ssistan t A ttorney G en eral, O ffice o f L egal C ounsel, Re- OLC Policies Regarding Issuance and Release o f Opinions (Sept. 10, 1980). ‘ T h e second statu to ry requirem ent — the necessity for certificatio n by the C om p tro ller G en eral — im poses no su b stan tiv e co n strain ts on access to the ju d g m e n t fund: the C om p tro ller G e n eral’s c e rtific a ­ tio n follow s from satisfactio n o f the o th er tw o requirem ents and co m p letion o f the necessary p a perw ork. C ontinued 115 awarded against it.7 We recognize that an award to a contractor by an agency board o f contract appeals under the Contract Disputes Act (“CDA”), Pub. L. No. 95-563, 92 Stat. 2388 (1978) (codified at 41 U.S.C. §§ 609-613), when paid by the judgment fund, must thereafter be reimbursed by the procuring agency whose appropriations were used for the contract at issue. See 41 U.S.C. § 612(c). But CDA is inapplicable here because the awards at issue were not made under CDA, but under CICA, a wholly distinct enactment.8 Hence, we conclude, Congress intended that Board awards of these bid pro­ test costs be paid out of the judgment fund, rather than being statutorily subject to reimbursement.9 2. The remaining question is whether the Board exceeded its authority in ordering the Army to reimburse the judgment fund for having paid the awards. We conclude that the Board has exceeded its authority. In Julie Research Laboratories, the Board majority relied on 40 U.S.C. § 759(f)(6)(C), which states: [N]othing contained in this subsection shall affect the board’s power to order any additional relief which it is authorized to provide under any statute or regulation. For two independent reasons, this provision does not, in our opinion, autho­ rize the Board to require a procuring agency to reimburse the judgment fund for the payment of protest cost awards. First, an order requiring the agency to reimburse the judgment fund would provide relief a t all — still less “additional re lie f’ — to the bid protester, since the protester’s award has already been paid in full by the judgment fund. From the protester’s point of view, it makes no difference whether the agency’s procurement appropriation reimburses the judgment fund after the award is paid: the amount o f the award is exactly the same. Thus, requiring that the amount of the award be taken from agency procurement appropriations ‘ (....c o n tin u e d ) See Availability o f the Judgment F und fo r the Payment o f Judgments or Settlements in Suits Brought A g a in st the Com m odity Credit Corporation Under the Federal Tort Claims Act, 13 Op. O .L .C . 362, 3636 4 & n .l (1 9 8 9 ); accord G eneral A cco u n tin g O ffice, Principles o f Federal Appropriations Law, at 12-2 (1 9 8 2 ) ( “ G AO P rinciples"). The th ird req u irem en t — that the aw ard o r settlem ent be pay ab le “ under a d ecisio n o f a board o f contract appeals" — is m anifestly satisfied by aw ards issued by the Board. ’ S e c tio n 1304(c) re fe rs to a situ atio n in w hich the ju d g m e n t fu n d is a vailable to pay a ju d g m e n t or c o m p ro m is e s ettlem e n t b u t must th e re a fte r be reim b u rsed . T he section is irrelevant here: it only c o n ­ c e rn s c a se s in w h ich th e ju dgm ent o r settlem en t “arises out o f an express o r im plied c o n tra c t” m ade by th e A rm y an d A ir F o rce Exchange S e rv ice, the N avy E xchanges, the M arine C orps E xchanges, the C o a s t G u a rd E x c h a n g e s, o r the E x ch an g e C ouncils o f the N ational A eronautics and Space A d m in istra ­ tio n . See P u b . L. N o. 9 1 -3 5 0 , 84 Stat. 4 4 9 (1 9 7 0 ) (codified at 31 U .S .C . § 1304(c)). ‘ C IC A , w h ic h g iv es th e Board a u th o rity o v er A D PE pro tests, w as not an am endm ent to C D A but to the B ro o k s A ct, Pub. L . N o. 89-306, 79 S ta t. 1127 (1 9 6 5 ) (co d ified at 4 0 U .S.C . § 7 5 9 (0 ). H ence the re im ­ b u rse m e n t re q u ire m e n t o f section 612 o f C D A does not apply to B oard aw ards under the B rooks A ct. ’ T h is O ffice re a ch e d a sim ilar co n clu sio n in Payment o f Attorney Fee Awards Against the United States U nder 28 U.S.C. § 2412(b), 7 Op. O .L .C . 180 (1 9 8 3 )(ju d gm ent fund available by statute to pay fee a w ard s). A ccord 6 3 C o m p . Gen. 260, 26 3 -6 4 & n.3 (1984) (c itin g R ose M em o). 116 and transferred to the permanent judgment fund is purely a matter of ac­ counting and fiscal policy, not a question of the scope of relief.10 Hence, 40 U.S.C. § 759(f)(6)(C) cannot provide authority for the Board to order the Army to reimburse the judgment fund for the cost of the award. Second, subsection 759(f)(6)(C) is not, as the Julie Research Laborato­ ries majority mistakenly implied, itself an affirmative grant of authority to the Board. The subsection merely states that nothing in it shall affect the Board’s power to order “additional relief’ which the Board is otherw ise empowered to provide. Thus, even on the assumption (which we have re­ jected) that requiring the procuring agency to reimburse the judgment fund could constitute “additional relief,” the Board would still need to be “autho­ rized to provide” such relief under some “statute or regulation” other than 40 U.S.C. § 759(f)(6)(C) itself. No other statute provides the needed authority. In Julie Research Labo­ ratories, 1989-1 B.C.A. f 21,213 at 107,021 (Sept. 23, 1988), the Board majority stated only that ordering reimbursement was “consistent with the purpose underlying 41 U.S.C. § 612” and with the Board’s responsibility under 40 U.S.C. § 759(f)(5)(A) to “accord due weight to the policies of [the Brooks Act] and the goals of economic and efficient procurement.” How­ ever, neither 41 U.S.C. § 612 nor 40 U.S.C. § 759(f)(5)(A) authorizes the Board to order reimbursement of the judgment fund." We recognize that, in Bedford Computer, the concurring opinion cited a regulatory source of authority. See id., 1990-1 B.C.A. U 22,377 at 112,435 (Hendley, A.J., concurring separately). The cited regulation, FAR 33.105(f)(2), 48 C.F.R. § 33.105(0(2) (1988), states that protest costs awarded by the Board “shall be paid promptly by the agency out of funds available to or for the use of the acquisition of supplies or services.” We understand,12 however, that this Federal Acquisition Regulation was not intended to mandate that Board awards of bid protest costs under the Brooks Act be paid from agency procurement appropriations rather than >0It a p p ea rs that the d ecisio n o f the B oard m ajority in Julie Research Laboratories relied o n an u n d e r­ stan d in g o f sound acco u n tin g policy. It stated th at “ [b]ecause th is m onetary aw ard is in e x tric a b ly c o n n ec te d w ith the true econom ic c o st o f the p rocurem ent, it is app ro p riate th a t the [judgm ent] fu n d be reim b u rsed by the agency w hose ap p ro p riatio n s w ere used for the contract o u t o f a vailable funds o r by o b ta in in g additional ap p ro p riatio n s fo r such pu rp o ses.” Id., 1989-1 B.C.A . 1 21,213 at 107,021. H o w ­ ever, as the d issen t c o rrectly pointed out, “o ur broad authority to g ran t re lie f [does not] a p p l[y ] to this m atter o f fiscal and a cco u n tin g policy w hich is purely a m atter o f statutory d ire c tio n " Id. " A s ex p la in ed above, 41 U .S C. § 612 provides th at a m onetary aw ard to a c o n tra c to r by an ag en cy board o f c o n tract appeals in a CDA case m ust be reim bursed to the ju d g m e n t fund. N o co m p a ra b le p ro v isio n ex ists for Brooks Act cases. Rather, 4 0 U .S .C . § 7 5 9 (f)(5 )(C ) m erely states th a t the B oard m ay hold a bid p ro testo r to be en titled to protest costs to be paid “ in accordance w ith sec tio n 1304,” the ju d g m e n t fu n d statute. S ection 759(f)(5 )(A ) instructs the B oard to take account o f the policy o f the B rooks A c t and o f the g oals o f eco n o m ic and efficien t procurem ent w hen “ m aking a decision on the merits o f p ro te sts brought u n d e r this sectio n ” (em phasis added). T h at language does not authorize the B oard to d e c id e , after m aking its decision on the m erits, w h eth er paym ent for an aw ard o f protest c o sts is to c o m e from the ju d g m e n t fund or from agency appropriations. P e r telep h o n e co n v ersatio n with Mr. Jack M iller, D eputy A sso ciate G eneral C ounsel, G S A . 117 from the judgm ent fund.13 (Apparently, the draftsmen of the regulation over­ looked the fact that protests costs in CICA cases, unlike CDA cases, were to be paid out o f the judgment fund.) If the regulation were read to require agencies to pay such costs without any recourse to the judgment fund, we would find it invalid. The plain language of both the judgment fund statute, 31 U.S.C. § 1304, and of the Brooks Act provision that refers to it, 40 U.S.C. § 759(f)(5)(C), compels the conclusion that Board awards of bid protest cases are payable only out of the judgment fund, not out of the agency’s appropriation.14 Insofar as a regulation conflicts with the express provisions of a statute, the regulation is without effect. See, e.g., Dole v. U nited States Steelworkers o f Am., 494 U.S. 26, 42 & n.10 (1990); Board o f G overnors o f the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986); A rizona Grocery Co. v. Atchison T. & S.F. Ry. Co., 284 U.S. 370, 387 (1932); 3 Op. O.L.C. 457, 459 (1979). Accordingly, we conclude that the Board is not validly authorized by statute or by regulations to order reimbursement. III. Conclusion The General Services Board of Contract Appeals lacks the authority to order the reimbursement o f the judgment fund from a procuring agency’s appropriation where the judgment fund has paid a Board award o f bid pro­ test costs against the agency in a case decided under 40 U.S.C. § 759. JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel ' ’ F u rth er, n o n e o f th e th re e statutes — 4 0 U .S.C . § 4 8 6 (c); 10 U .S .C . ch. 137; 42 U .S .C . § 2453(c) — c ite d as a u th o ritie s fo r th e FAR re g u la tio n , see 50 Fed. R eg . 2270 (1985), ex p ressly authorizes the G e n ­ e ra l S e rv ic e s A d m in istra tio n to m an d ate, no tw ith stan d in g 4 0 U .S .C . § 759(f)(5)(C ), th a t p ay m en t o f G S B C A b id p ro te st c o st aw ards in B ro o k s A ct cases b e m ad e d irectly from ag en cy app ro p riatio n s instead o f fro m the ju d g m e n t fu n d . Nor does a n y o f those s tatu tes allow the B oard to o rd e r the ju d g m e n t fund to be re im b u rse d fro m a g en cy appropriations for h aving p aid such aw ards. 14 T h e G A O e x p re ssly agrees with th e co n clu sio n , o b serv in g that “ w hile C IC A requires th a t G SB C A p a y m e n ts b e m ade from th e Judgm ent Fund, the F ed eral A cquisition R egulation pro v id es th a t these p a y m e n ts m u st be m a d e fro m the a g e n c y ’s funds a v ailab le for the acquisition o f supplies o r services. The F ederal A cquisition Regulation is inconsistent with CICA in this regard." GAO Report at 62 (e m p h a sis a d d ed ). 118

Write a legal research memo on the following topic.

Federal Bureau of Investigation Participation in Wire Interceptions in Cases Where It Lacks Investigative Responsibility U nder 18 U.S.C. §2516(1), th e Federal Bureau o f Investigation (FBI) may be judicially authorized to participate in Title III interceptions o f wire or oral communications directed at narcotics-related offenses, even though the Drug Enforcement Administra­ tion and not the FBI has general investigative responsibility for such offenses. T he plain language of §2516(1) authorizes the FBI to participate in court-approved interceptions directed at any of the offenses listed in that section, and the legislative history lends support to its “ plain meaning” interpretation. September 29, 1981 MEMORANDUM OPINION FOR THE ASSISTANT DIRECTOR FOR LEGAL COUNSEL, FED ERA L BUREAU OF INVESTIGATION This responds to your request for our opinion whether, pursuant to 18 U.S.C. § 2516(1)(1976 and Supp. IV 1980), the Federal Bureau of Investigation (FBI) may be authorized by a court to participate in Title III interceptions directed at offenses for which the FBI has no general investigative responsibility. This legal question has arisen in the context of investigations of narcotics-related offenses over which the Drug Enforcement Administration (DEA)—not the FBI—has been delegated general investigative responsibility by the Attorney General. See United States Attorneys’ Manual, Section 9-1.122 (Oct. 17, 1977); 21 U.S.C. § 871(a). In particular, in a case in which the DEA seeks authorization for an interception directed at narcotics offenses, and in which there is no probable cause to seek authorization for in interception directed at other offenses for which the FBI has general investigative responsibil­ ity, the question is whether the FBI as well as the DEA may be authorized to participate in an interception. If, as the FBI’s Legal Counsel Division has concluded, the FBI can participate in a Title III interception only when it has general investigative responsibility for the offense at which the interception is directed, then the FBI could not be authorized by a court to participate in an interception in such a case.1 1 T he A ttorney General could, if he chose to do so, delegate general investigative jurisdiction over narcotics-related offenses to the FB I. See 21 U.S.C § 871(a). Unless he does so, however, such jurisdiction remains with the DEA . [N o t e : In February o f 1982, the Attorney General authorized the Continued 286 I. In our view, § 2516(1) provides authority for the FBI to participate in interceptions in such a case directed at any of the offenses listed in that provision, including narcotics-related offenses, so long as all of the specific procedural requirements of § 2516(1) are satisfied. We conclude that it is not necessary for the FBI to have general investigative responsibility for such offenses before it may participate in court-approved §2516(1) interceptions directed at them. The basis for this conclusion is the plain language of §2516(1), which provides in perti­ nent part: The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may au­ thorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communica­ tions by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when inter. ception may provide or has provided evidence of— * * * * * (e) any offense involving . . . the manufacture, importa­ tion, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States . . . The foregoing language specifically provides that an application may be made to a court for an order approving an interception “by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of ” the listed offenses. In literal terms, this language authorizes the FBI to participate in court-approved interceptions directed at the listed of­ fenses. An interpretation leading to the contrary result would depend on the premise that the clause within the commas—“or a Federal agency having responsibility for the investigation of the offense as to which the application is made,”—refers to the FBI as well as other federal agen­ cies, thereby requiring the FBI itself to have “responsibility” for the investigation of any offense as to which an interception application is made. That premise lacks specific textual support.2 We also believe it to FBI, concurrently with the DEA, to investigate violations o f the cnminal drug laws of the United States. See A tt’y Gen. Or. No. 968-82, 47 Fed. Reg. 4989 (1982). Ed. 2 A cardinal principle of statutory construction is that the language used by Congress is to be given primary weight See, e.g.. Southeastern Community College v Davis, 442 U.S. 397, 405 (1979); InternaContinued 287 be contrary to the natural inference to be drawn from the placement of commas around the clause referring to a federal agency having investi­ gative “responsibility,” which renders that clause clearly a subordinate, self-contained part of the sentence. No language renders the subordi­ nate clause an express qualification on the sentence’s main proposition that the FBI may be authorized to participate in interceptions directed at the listed offenses. It would have been simple to provide, had it been Congress’ intent to do so, that the FBI may participate in courtapproved interceptions only in those instances where it has investiga­ tive “responsibility” for a given offense and not in those where another federal agency has such “responsibility.” 3 II. Section 2516(l)’s legislative history lends support to its “plain mean­ ing” interpretation. The Senate Judiciary Committee report, S. Rep. No. 1097, 90th Cong., 2d Sess. 97 (1968), explains §2516(1) as follows: The order of authorization may permit the Federal Bureau of Investigation or the Federal agency having responsibility for the investigation of the offense involved to intercept the wire or oral communication. The Depart­ ment of Justice under the leadership of the Attorney Gen­ eral must be the central focal point of any drive against organized crime, particularly in the collection, analysis, and dissemination of information. It is appropriate that no limitation be placed on the investigations in which the investigative arm of the Department may participate. Or­ ganized crime has not limited itself to the commission of any particular offense. No limitation should be placed on the Department of Justice. This passage speaks of possible judicial authorization of interceptions by “the Federal Bureau of Investigation or the Federal agency having responsibility for the investigation of the offense. . . .” It does not indicate that the FBI must have general investigative responsibility for a given offense before it may be authorized under §2516(1) to partici­ pate in an interception directed at such an offense. Moreover, by stating that “no limitation” should be placed on the investigations in which the investigative arm of the Department of Justice may participate (other tional Brotherhood o f Teamsters v. Daniel, 439 U.S. 551, 558 (1979). A court is not “at liberty to imply a condition which is opposed to the explicit terms of the statute. . . To [so] hold . . . is not to construe the A ct but to amend it.” Detroit Trust Co. v. The Thomas Barium, 293 U.S. 21, 38 (1934), quoted in Fedorenko v. United States, 449 U.S. 490, 514 (1981). 3 Section 2516(l)’s intention regarding the identity of the agencies that may execute an interception order is taken for granted in J. C arr, The Law of Electronic Surveillance, § 5.02 at 243 (1977), which m erely quotes the provision’s language in identifying such agencies: “ 'the Federal Bureau o f Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made.’ ” 288 than, presumably, any limitation mandated by the statutory language), the report underscores the importance placed by the Committee on the FBI’s ability generally to participate in court-approved interceptions under §2516(1). To derive from §2516(1) a specific limitation on the FBI’s authority to participate in interceptions that is not explicitly set forth in the provision would appear inconsistent with this legislative intent.4 Additional support for the “plain meaning” interpretation of § 2516(1) derives from a study of predecessor wiretap bills. S. 1308, introduced in the 88th Cong., 1st Sess. (1963), provided in pertinent part that the Attorney General or a specially designated Assistant Attorney General may authorize an application for judicial permission for “the Federal Bureau of Investigation, or any federal agency having investigative responsibility for the crimes set forth in this subsection,” to conduct interceptions. The legislative history of S. 1308 includes a letter to the Chairman of the Senate Judiciary Committee from the General Counsel of the Department of the Treasury, dated July 2, 1963, which discusses this provision of S. 1308. The General Counsel objected to the fact that under the provision either the FBI or the agency charged with investi­ gating the listed offenses—in particular, with investigating narcotics offenses, which then was the responsibility of the Treasury—could be authorized by a court to conduct interceptions. He stated that such “overlapping of authority would be undesirable. . . .” To prevent such an overlap, the General Counsel proposed alternative language provid­ ing that the FBI or another agency, “whichever has the investigative responsibility for a crime set forth in this subsection,” may be judicially authorized to conduct an interception.® That alternative language was not adopted by Congress. Furthermore, the two bills acknowledged in the legislative history of §2516(1) as the main sources of the wiretap legislation that was en­ acted—S. 675 and S. 2050, 90th Cong., 1st Sess. (1967) 6—differed in a crucial respect in the wording of the relevant provision. S. 675 pro­ vided that “the Federal Bureau of Investigation, or other Federal agency . . .” having investigative responsibility for certain offenses 4The broad principle that “no limitation*’ should be placed on the FBI's ability to participate in interceptions is not inconsistent with the decision by the Attorney General, pursuant to 21 U.S.C. § 871(a), to delegate general investigative jurisdiction over narcotics-related offenses to the D EA. The broad principle stated in the Senate committee report expresses the intent underlying § 2516(1), not the intent underlying other statutes such as 21 U S.C . § 871(a). The latter statute authorizes the Attorney General to “delegate any o f his functions under this subchapter to any officer or employee of the Department o f Justice.” 5The 1963 letter was later printed in Criminal Laws and Procedures: Hearings on S. 2187, S. 2188, 5. 2189 et a l before the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary, 89th Cong., 2d Sess. 10-11 (1966). *See S. Rep No. 1097, 90th Cong., 2d Sess. 66 (1968) (“Title III is essentially a combination o f S. 675 . . . and S. 2050. . . .”); 114 Cong. Rec 11755 (1968). S. 675 and S. 2050 are printed in Controlling Crime Through More Effective Law Enforcement: Hearings on S 300, S. 552, S 580 et al. before the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. 76, 1003 (1967). 289 may be authorized to conduct an interception directed at them (empha­ sis added). The use of the word “other” in the quoted phrase suggests that the FBI would have had to have general investigative responsibil­ ity for the listed offenses. Otherwise, it would have made no sense to refer to another federal agency as the “other” agency having such responsibility. However, the word “other” was not included in S. 2050, which spoke instead of “the Federal Bureau of Investigation, or a Federal agency . . . .” having investigative responsibility (emphasis added). The pertinent language of S. 2050—not that of S. 675—was ultimately enacted. Thus, the legislative history of § 2516(1) supports the conclusion derived from the provision’s plain language that Congress intended that the FBI may be judicially authorized to engage in an interception directed at any of the listed offenses, including narcotics offenses. III. This interpretation of §2516(1) must be tested against the contrary arguments advanced in the memorandum of the FBI’s Legal Counsel Division. The memorandum relies not on the provision’s language or legislative history, but rather on a reading of United States v. Marion, 535 F.2d 697 (2d Cir. 1976), and on an argument said to be based on the general purposes of Title III. The Legal Counsel Division’s memorandum summarizes the Marion holding as follows: In focusing on the investigative interests at the time of interception, the Marion court requires separate orders, each justifying the agency's investigative jurisdiction, before inter­ ception is permitted. (Emphasis added.) This reading of Marion suggests that under that decision each agency must have general “investigative jurisdiction” over an offense before it may participate in an interception under §2516(1). However, we are unable to find support for such a reading in the opinion itself. The precise issue in Marion was whether the requirement of 18 U.S.C. § 2517(5) for subsequent judicial approval of incidental interceptions of communications relating to offenses other than those specified in an initial wiretap authorization applies to wiretaps initially authorized by an order of a state court.7 The court of appeals held that, in such cases, the requirement of § 2517(5) does apply. The court explained: 7 Section 2517(5) provides: When an investigative o r law enforcement officer, while engaged in intercepting wire o r oral communications in the manner authorized herein, intercepts wire or oral com munications relating to offenses other than those specified in the order of authori­ zation or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) o f this section. Such contents and any evidence derived therefrom may be used under subsection (3) o f this section when Continued 290 . . . our holding does not ‘call into question’ the practice of joint federal-state wiretap investigations. Indeed, Title I ll’s framers seem to have specifically envisioned co­ operation among law enforcement authorities of different jurisdictions where appropriate to enhance the effective­ ness of electronic surveillance operations . . . . If, for example, federal officials called into an ongoing state wiretap operation learned at that time of communications relating to separate federal offenses not specified in the initial interception order, there would be little difficulty in obtaining the requisite subsequent approval pursuant to §2517. And where federal and state officers pursue an investigation jointly from its inception, we foresee little difficulty for the appropriate federal officer to obtain a separate order authorizing the interception of communica­ tions relating to the federal offenses believed involved.8 This passage underscores that Marion involved §2517(5). It simply did not deal with, and reached no conclusion about, the precise issue before us regarding § 2516(1). A broader argument in the Legal Counsel Division’s memorandum is that a construction of §2516(1) permitting the FBI to participate in court-authorized interceptions relating to all offenses enumerated in that provision would be in tension with Title Ill’s underlying purposes, which include placing restrictions on interceptions in order to protect citizens’ privacy interests. To be consistent with such a purpose, courts have noted that Title III should be carefully construed. See, e.g., United States v. Giordano, 469 F.2d 522, 530 (4th Cir. 1972), affd, 416 U.S. 505 (1974). The Legal Counsel Division suggests that in order to be consistent with this. canon of careful construction, it is necessary to interpret § 2516(1) as not allowing the FBI to participate in an intercep­ tion unless it has general investigative responsibility for the offense at which an interception is directed. We agree that Title III, and hence §2516(1), must be carefully construed. We do not agree, however, that such a construction must include reading language into §2516(1) that is not there, especially when the legislative history shows that one of the two major bills authorized or approved by a judge o f competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions o f this chapter. Such application shall be made as soon as practicable. [Em­ phasis added.] 8 535 F.2d at 707. Cf. United States v. Manfredi, 488 F.2d 588, 601 (2d Cir. 1973), cert, denied 417 U.S. 936 (1974) (noting that 18 U.S.C. §2517 authorizes disclosure to appropriate law enforcement officials of evidence gained as a result o f an authorized wiretap, and concluding: “ If such information may be exchanged after the termination o f the surveillance, we perceive no reason why that informa­ tion may not be disclosed to cooperating agencies contemporaneously with its interception ” ); United States v Masciarelti. 558 F.2d 1064, 1067-68 (2d Cir. 1977); United Stales v. Webster, 473 F. Supp. 586, 600 (D. Md. 1979). 291 before Congress when it passed Title III contained language that would have led to the result suggested by the Legal Counsel Division, but Congress did not adopt it. The most fundamental canon of statutory construction is that plain language should control, especially in the absence of contrary legislative history.9 The Legal Counsel Division has not pointed to such contrary legislative history. Nor have we become aware of any. Furthermore, although it is plain that in enacting Title III Congress was sensitive to the need to protect citizens’ privacy interests, it does not follow from this alone that §2516(1) must be read in the manner suggested by the Legal Counsel Division. The Senate Judiciary Com­ mittee report states that “ [t]o assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic sur­ veillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order. . . (Emphasis added). S. Rep. No. 1097, 90th Cong. 2d Sess. 66 (1968). In other words, as long as the officers engaged in an interception are “duly authorized” to do so and Title Ill’s other requirements are met, the purpose of protecting the legitimate privacy interests would be satisfied. Thus, the argument advanced by the Legal Counsel Division ultimately returns us to the initial question that is the subject of this opinion: may the FBI be “duly authorized” to participate in §2516(1) interceptions when the interception is directed at an offense listed in that subsection, even though the FBI lacks general investigative responsibility for the offense? The “purposive” approach o f the Legal Counsel Division’s memorandum does not ultimately assist in answering that question. Another argument might have been made to support the position of the Legal Counsel Division. Section 2516(1) specifically refers to the procedures in §2518 governing orders authorizing interceptions, and § 2518(l)(a) states that an application must identify “the investigative or law enforcement officer” making the application for an interception. 18 U.S.C. § 2510(7) defines the term “investigative or law enforcement officer” to include “any officer o f the United States or of a State or political subdivision thereof, who is empowered by law to conduct investi­ gations o f or to make arrests fo r offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses . . . (Emphasis added.) It might be said that §§2518 and 2510(7), read together, contemplate that all officers covered by an application for an interception must be “empowered by *A court interpreting a statute is bound by the 44 ‘literal or usual meaning of its words' ” unless this would lead to " ‘absurd results . . . o r would thw art the obvious purpose o f the statute.' . . ” Trans Alaska Pipeline Rate Cases, 436 U .S. 631, 643 (1978), quoting Commissioner v. Brown, 380 U.S. 563, 571 (1965). See also Southeastern Community College v. Davis, 442 U .S. 397, 405 (1979); Detroit Trust Co. v. The Thomas Barium, 293 U.S. 21, 38 (1934), quoted in Fedorenko v. United States, 449 U .S 490, 514 (1981). 292 law” other than § 2516(1) to investigate an offense for which an inter­ ception authorization is sought. The weakness in this argument is that it simply presupposes its conclusion: it assumes that an “investigative or law enforcement offi­ cer” for purposes of § 2518 could not be, in the context of an intercep­ tion under §2516(1) directed at narcotics offenses, an officer of the FBI. That is, of course, the question to be answered. It cannot be resolved simply by stating conclusorily that § 2516(1) could not be read to empower the FBI to participate in court-approved interceptions directed at the offenses listed in it. As noted above, under §2516(l)’s most natural reading it in fact does authorize the FBI to participate in court-approved interceptions directed at any of the offenses listed in it. IV. For all the reasons stated in this opinion, we do not read § 2516(1) to require the FBI to have general investigative responsibility for an offense listed in that subsection before the FBI may be judicially au­ thorized to participate in an interception directed at such an offense, including narcotics offenses. Accordingly, in the type of case that gave rise to your opinion request to this Office, we conclude that, under §2516(1), the FBI may be judicially authorized to participate in a court-approved interception directed at an offense noted in that provi­ sion. T heodore B. O l s o n Assistant Attorney General Office o f Legal Counsel 293

Write a legal research memo on the following topic.

Relocation Deadline Provision Contained in the 1996 Omnibus Consolidated Rescissions and Appropriations Act 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 appro­ priated in the provision, even though it is unable to turn back the clock and comply with the provision’s literal deadline. May 21, 1996 M e m o r a n d u m O p in io n for th e B r o a d c a s t in g B o a r d of C h a ir m a n G overnors This is in response to your request for advice concerning the interpretation of a provision contained in title IV of the Omnibus Consolidated Rescissions and Appropriations Act, Pub. L. No. 104-134, 110 Stat. 1321, 1321-43 (1996) (“ Act” ) (the provision at issue is herein referred to as “ the provision” ). See Letter for Walter E. Dellinger, Assistant Attorney General, Office of Legal Coun­ sel, from David W. Burke, Chairman, Broadcasting Board of Governors (May 2, 1996). Specifically, you have asked whether the United States Information Agency (“ USIA” ) is entitled at this time to spend monies appropriated under the provision, whether the provision requires the relocation of the Office of Cuba Broadcasting’s (“ OCB” ) headquarters to south Florida, and whether the accounts cited in the provision as being available to finance the relocation are currently available for that purpose. The provision provides a fiscal year 1996 appropriation to USIA to carry out activities authorized under various public laws relating to international broad­ casting by the United States. The provision states in pertinent part: For expenses necessary to enable the United States Information Agency to carry out the Radio Broadcasting to Cuba Act, as amend­ ed, the Television Broadcasting to Cuba Act, and the International Broadcasting Act of 1994 . . . $24,809,000 . . . Provided, That not later than April 1, 1996, the headquarters o f the Office o f Cuba Broadcasting shall be relocated from Washington, D.C. to south Florida, and that any funds available under the headings “ Inter­ national Broadcasting Operations,” “ Broadcasting to Cuba,” and “ Radio Construction” may be available to carry out this relocation. Pub. L. No. 104-134, 110 Stat. at 1321-43 (emphasis added). As your letter makes clear, because the Act was signed into law on April 26, 1996, almost one month after the date upon which OCB’s headquarters must be 209 Opinions o f the Office o f Legal Counsel in Volume 20 relocated to south Florida under the literal terms of the provision’s relocation deadline, these literal terms cannot be satisfied. For the reasons stated below, how­ ever, we conclude that USIA is at this time nevertheless entitled to spend funds appropriated under the provision. In addition, we conclude that the relocation of OCB’s headquarters to south Florida is mandatory under the appropriation. Fi­ nally, we conclude that, despite USIA’s inability to comply with the literal terms of the provision’s relocation deadline, it may at this time access funds contained in the International Broadcasting Operations, Broadcasting to Cuba, and Radio Construction accounts in order to cover expenses associated with relocating OCB’s headquarters to south Florida. These conclusions are premised on observance of the statutory mandate to relocate OCB’s headquarters to south Florida. We decline to address at this time, however, the time period within which the relocation must be accomplished. I. Discussion The pre-eminent principle of statutory interpretation, as most recently expressed by the Supreme Court, is that where Congress has “ spoken to the precise question at issue,” agencies and courts are bound by the terms of the statute as written. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Here, the appropriations provision under review speaks plainly and precisely, imposing an April 1, 1996 deadline on the relocation of OCB’s head­ quarters to south Florida. We conclude, however, that the exceptional aspects of this provision and its enactment history justify a narrow exception to the principle enunciated in Chevron to correct what manifestly appears to be a technical or clerical error. According to a General Accounting Office (“ GAO” ) treatise on Appropriations law: A statute may occasionally contain what is clearly a technical or typographical error which, if read literally, could alter the meaning of the statute or render execution effectively impossible. In such a case, if the legislative intent is clear, the intent will be given effect over the erroneous language. 1 Office of the General Counsel, United States General Accounting Office, Prin­ ciples o f F ederal Appropriations Law 2-74 (2d ed. 1991). Courts have embraced the GAO’s view regarding such statutes. In Fleming v. Salem Box Co., 38 F. Supp. 997 (D. Or. 1940), the court gave effect to what it determined to be the true intent of Congress when confronted with a clerical error that, if adhered to, could not have been reconciled with the statute’s legislative history. The court stated that “ [a] palpable clerical error clearly shown should not override legisla210 R elocation D eadline P rovision C ontained in the 1996 O m nibus C onsolidated R escissions a n d A ppropriations A c t tive intention.” Id. at 998. In Ronson Patents Corp. v. Sparklets Devices, Inc., 102 F. Supp. 123 (E.D. Mo. 1951), the court determined that a statute extending the term of a patent was not invalid despite the existence of an error in the patent’s reissue date. According to the court, “ if the error in a legislative act is apparent on the face of the act and can be corrected by other language of the act, it is not fatal.” Id. at 124.1 The fact that the provision’s literal terms require USIA to satisfy a condition that is beyond the realm of possibility strongly suggests that the provision contains an error of the type contemplated by the “ technical or clerical error” line of cases. The “ technical or clerical error” doctrine directs courts, when necessary, to look beyond a statute’s literal language to the statute’s legislative history to fash­ ion an interpretation that is consistent with Congress’s intention in passing the statute. We will, therefore, attempt such an exercise with respect to the provision’s April 1, 1996 relocation deadline. Our research reveals that Senator Gramm ini­ tially introduced the requirement that OCB’s headquarters be relocated to south Florida by April 1, 1996 as an amendment to the Senate’s version of H.R. 2076, the Department of Commerce, Justice, and State, the Judiciary, and Related Agen­ cies Appropriations Act, 1996. 141 Cong. Rec. S14,539-40 (daily ed. Sept. 28, 1995).2 On September 28, 1995, the same day the amendment was introduced, it was incorporated by unanimous consent into the version of H.R. 2076 then pending before the Senate. Id. at S I4,540. On the following day, September 29, 1995, the Senate passed its version of H.R. 2076, as amended. Id. at S I4,697 (daily ed. Sept. 29, 1995). A slightly modified version of Senator Gramm’s amendment emerged from con­ ference with the House of Representatives, see 141 Cong. Rec. H13.885 (daily ed. Dec. 4, 1995), and was included in the version of H.R. 2076 that was passed by both houses of Congress on December 6 and 7, 1995. Id. at H14,112 (daily ed. Dec. 6, 1995); id. at S I8,182-83 (daily ed. Dec. 7, 1995). The relocation language that emerged from conference and was approved by both houses as part of H.R. 2076 was identical to the relocation language contained in the provision. In describing the relocation language that emerged from the conference on H.R. 2076, the joint explanatory statement on the conference agreement stated: 1Although the Supreme Court has not had an occasion to review a decision regarding technical o r clerical errors o f this kind, it has acknowledged that Chevron's teaching with regard to the literal meaning o f a statute is subject to some exceptions. Recognizing in Green v. Bock Laundry Machine Co., 490 U.S. 504, 510 (1989), that a literal interpretation o f Fed. R. Evid. 609(a)(1) would cause an '"unfathomable” result (i.e., the <4den[ial to] a civil plaintiff [of] the same right to impeach an adversary's testimony that [the rule] grants to a civil defendant” ), it held that the rule should be read in a manner consistent with Congress’s intention in enacting it, which requires that the word “ defendant" be interpreted to refer solely to “ crim inal” defendants. 490 U.S. at 521. 2 The amendment introduced by Senator Gramm modified H.R. 2076 to add the following language to the section appropriating funds for Broadcasting to Cuba: Provided further, That not later than April 1, 1996, the headquarters of the Office o f Cuba Broadcasting shall be relocated from W ashington, D.C. to south Florida, and that any funds available to the United States Information Agency may be available to carry out this relocation.” Id. at S 14,558. 211 Opinions o f the Office o f Legal Counsel in Volume 20 The conference agreement includes $24,809,000 for Broadcasting to Cuba under a separate account, as proposed by the Senate, in­ stead of within the total for International Broadcasting Operations, as proposed by the House. The agreement also includes language requiring the relocation of the headquarters of the Office of Cuba Broadcasting from Wash­ ington, D.C., to south Florida by April 1, 1996, and permits funds from three accounts, International Broadcasting Operations, Broad­ casting to Cuba, and Radio Construction, to be used to carry out the relocation. The Senate bill proposed the relocation, but allowed any USIA funds to be used to carry out the relocation. The House bill contained no similar provision. 141 Cong. Rec. H I3,923 (daily ed. Dec. 4, 1995); H.R. Conf. Rep. No. 104378, at 148-49(1995). Because the President vetoed H.R. 2076, see 141 Cong. Rec. D1491 (daily ed. Dec. 19, 1995), and Congress was unable to override his veto, H.R. 2076 was never enacted. Subsequently Congress and the President reached agreement on the bulk of the fiscal year 1996 appropriations that were originally included in H.R. 2076, and these appropriations and other provisions from H.R. 2076 were included in H.R. 3019. H.R. 3019 contained H.R. 2076’s relocation language, with no adjustment in the relocation date. On April 25, 1996, the House and Senate passed H.R. 3019 with this language in it, including the April 1, 1996 relocation deadline, see 142 Cong. Rec. 9141 (1996); id. at 9218, and President Clinton signed it on April 26, 1996. See 142 Cong. Rec. D386 (daily ed. Apr. 29, 1996). On the basis of the original passage of H.R. 2076 on December 6 and 7, 1995, Congress intended OCB’s headquarters to be relocated to south Florida, was will­ ing to allow funds contained in USIA’s International Broadcasting Operations, Broadcasting to Cuba, and Radio Construction accounts to finance the relocation, and was prepared to allow approximately four months for the relocation to be accomplished. The retention of the relocation and related language in H.R. 3019 indicates that Congress’s intention as to the relocation and its financing had not changed in the intervening period between December, 1995 and the passage of H.R. 3019, and there is no other evidence of any kind to suggest that it had changed. The manifest intention of Congress, thus, is that OCB’s headquarters be relocated by som e date, that the relocation be financed through the USIA ac­ counts specified above, and that the relocation be a condition on the expenditure of certain appropriated funds. Under these circumstances, we believe the retention of the April 1, 1996 relocation deadline— compliance with which had become a temporal impossibility by the provision’s date of enactment— was the result 212 R elocation D eadline P rovision C ontained in the 1996 O m nibus C onsolidated R escissions a n d A ppropriations A ct of a technical error in failing to revise the relocation deadline prior to the passage of H.R. 3019. Finally, in many other cases of correcting a technical or clerical error, a sub­ stitute for the erroneous term is obvious or apparent from the context. Cf. A ppro­ priations to Pay Supervision o f Election, 1 Comp. Dec. 1 (1894) (holding that an appropriation providing funds in connection with an election held on November “ 5th,” 1890 could be used to make payments associated with an election held on November 4, 1890, where it was clear that November “ 5th” was a typo­ graphical error and Congress intended to make the funds available to support the November 4 election). Here, several plausible alternatives seem available. In this circumstance, we leave to USIA, the agency administering the appropriation in the first instance, the responsibility for determining a compliance date that is con­ sistent with Congress’s intention. II. Conclusion Based on the foregoing, we conclude that USIA is entitled at this time to obli­ gate the funds appropriated in the provision, even though it is unable to turn back the clock and comply with the provision’s literal deadline for relocating OCB’s headquarters to south Florida. We also conclude that the relocation of OCB’s headquarters to south Florida is mandatory under the appropriation. Finally, we conclude that USIA may use funds available under the account headings specified in the provision to finance the relocation. RICHARD L. SHIFFRIN D eputy Assistant Attorney General Office o f Legal Counsel 213

Write a legal research memo on the following topic.

Payment of Legal Fees in Connection With a Cabinet Member’s Confirmation Hearings Legal expenses incurred in connection with a Cabinet member’s Senate confirmation hearings would be an appropriate subject o f payment from funds authorized under the Presidential Transition A ct, and may also, consistent with that Act, be paid from private sources. Payment o f legal fees incurred in connection with the confirmation process by a private foundation would not be considered to supplement a Cabinet member’s salary in violation o f 18 U.S.C. § 209, since the purpose and value of the services rendered were directed primarily to the government. May 13, 1981 MEMORANDUM OPINION Our views have been requested on the propriety under 18 U.S.C. § 209 of a proposed payment by a private foundation1 of legal fees incurred in connection with the Senate confirmation hearings of a member of the Cabinet. We understand that the lawyer was retained after consultations between the office of the President-elect and a Member of Congress, and that the lawyer’s fee is not and was never intended to be the personal obligation of the nominee. We also under­ stand that the lawyer’s services were rendered before and during the nominee’s confirmation hearings and that all services were rendered before the current Administration took office. Our conclusions can be summarized as follows: (1) The payment of legal fees incurred in connection with a confirmation hearing serves a legitimate governmental func­ tion cognizable under the Presidential Transition Act. (2) The availability of public funding under the Transition Act does not preclude additional transition funding from private sources. (3) Since the purpose and value of these legal services were directed primarily to the government, payment of the legal fee by a private party should not be considered a supplementation of the employee’s salary for purposes of 18 U.S.C. §209. A c c o rd in g to its bylaws, the foundation is a nonprofit corporation established in the District of Colum bia “to facilitate an orderly transfer o f the power of the executive branch of the United States governm ent from the Administration o f the incumbent President to the Administration of the Presi­ dent-elect . . . 126 Before addressing the propriety of this proposed payment under § 209, we will examine it in light of the Presidential Transition Act of 1963, Pub. L. No. 88-277, 78 Stat. 153, as amended by Pub. L. No. 94499, 90 Stat. 2380, October 14, 1976 (reprinted in note following 3 U.S.C. § 102). This Act promotes the orderly transfer of executive power during a presidential transition by authorizing the Administrator of the General Services Administration (GSA) to provide to a President-elect necessary services and facilities for use prior to January 20 in connection with preparations for the assumption of official duties. The GSA Administrator is specifically authorized, by § 3(a)(3) of the Transi­ tion Act, to pay expenses for the services of consultants,2 and we see no reason why a legal consultant of this type could not have been paid with government funds pursuant to the Transition Act.3 The availability of Transition Act funds for a particular purpose does not necessarily preclude the funding of that same function from a private source. Although the Comptroller General has issued a consid­ erable body of opinions generally repudiating the unauthorized augmen­ tation of agency appropriations, see, e.g., 46 Comp. Gen. 689 (1967), we do not think that those opinions are controlling in this situation. Neither the President-elect nor his transition staff are government employees,4 and the Transition Act does not create a federal transition agency. Instead, it provides for the appropriation of money to a federal agency (GSA), to be disbursed according to certain criteria. There is no indica­ tion in the Transition Act or its legislative history that demonstrates a congressional intent to limit a President-elect’s transition activities to those funded by the GSA transition appropriation.5 In fact, when the Act was amended in 1976 to increase the amount of the authorization for transition funds, the House report quoted extensively from a GAO study that showed that in the past only a small portion of the actual transition expense was paid from the U.S. Treasury. In recommending that the appropriation be increased,6 the GAO report stated: 2The Transition Act provides that consultants shall be paid pursuant to the Administrative Ex­ penses Act of 1946, as amended (S U.S.C. § 3109). Among other things, this Act places a ceiling on the salary rate paid to consultants This salary limitation clearly would apply if the lawyer’s fees were paid by GSA. 3 Had the same legal services been required after the Administration took office, they might have been provided by government lawyers or by private lawyers retained at government expense. Al­ though the use o f government funds or personnel to assist nominees in the confirmation process would depend upon the language and purpose of relevant appropriation statutes, as a general matter, such expenditures have been considered necessary government expenditures 4See § 36(a)(2) of the Transition Act supra. O f course, federal employees who are “detailed” to assist the President-elect in transition do retain their status as federal employees. &There is little doubt that Congress did intend to limit federal transition expenditures to the amount authorized and appropriated to the GSA for this purpose. See, e.g., S. Rep. No. 1322, 94th C o n g , 1st sess. 2 (1976). 6 It should be noted that even the increased appropriation would not have covered the full expenditures o f the immediately preceding transition as reported by G AO 127 It is our belief, however, that if the Presidential Transition A ct is to function as intended, the Federal assistance must cover a substantial part of the Transition expenses. Quoted in H. Rep. No. 1442, 94th Cong., 1st Sess. 4 (1976) (emphasis added). It is clear from the House report that Congress was aware of the custom of augmenting the transition appropriation with private funds. Since neither the A ct nor its legislative history indicate an intent to eliminate this practice, and in light of the language adopted from the GAO report, we conclude that the public funding of transition was not intended to preclude private funding of transition activities. We now turn to the question of whether the payment of this particu­ lar transition expense by a private group would violate 18 U.S.C. § 209. As you know, § 209 prohibits the payment or receipt from any source other than the government of any salary, contribution to or supplementation of salary, as compensation for the services of an officer or employee of the Executive Branch. The term salary is not defined by the statute. One source of guidance on the meaning o f “salary” in § 209 is the administrative interpretations given to the term by the various federal agencies. This administration case law tends to give fairly broad mean­ ing to the term “salary,” 7 but it does not supply an answer or a ready formula to apply in this case. In the final analysis, the determination whether a particular fringe benefit constitutes “salary” is a matter of judgment based on the full circumstances and intent of the parties. See 41 Op. A tt’y Gen. 217 (1955). In this case, it is our judgment that the proposed payment would not constitute a supplementation of the employee’s salary. In reaching this conclusion we note that the foundation’s primary purpose to assist the President-elect is evident from its very charter; that this purpose is a legitimate function for a private foundation;8 and that the foundation is not, and has never been, in an employment relationship with the member of the Cabinet. Furthermore, we are convinced that any per­ sonal benefit to the employee from these legal services was incidental and secondary to the intended benefit conferred upon the President­ elect and his Administration. In addition, if the government had pro­ vided these same legal services (see text accompanying footnote 3) it is doubtful that the value of the services would be considered part of the employee’s salary. 1See discussion in B. Manning, Federal Conflict o f Interest Laws 160-163 (1964), reviewing adminis­ trative decisions that define salary to include tuition fees, travel and professional expenses, and various honoraria See also 18 U.S C. § 209(e), which creates a narrow exception to the administrative decision that § 209 bars the payment of moving expenses by a former employer. 8As discussed previously, the foundation’s purpose to assist the transition is not at odds with the Transition A ct o f 1963 or the principle of fixed appropriations. We also note that in A dvisory Opinion 1980-97 the Federal Election Commission (FE C ) concluded that the establishment of a Presidential Transition T rust to pay for pre-election transition activities was lawful under the Federal Election Campaign A ct o f 1971 and F E C regulations. 128 There is a line of Comptroller General decisions holding that an officer or employee has on his shoulders “the duty of qualifying himself for the performance of his official duties.” 22 Comp. Gen. 460, 461 (1942). See also 51 Comp. Gen. 701 (1972) (disallowing the govern­ ment’s payment of bar admission fees) and 31 Comp. Gen. 465 (1952), 22 Comp. Gen. 243 (1942) (both disallowing government payment for pre-employment medical examinations). In our view, legal fees incurred in connection with the confirmation process are not analogous to these other personal costs of job qualification. As discussed earlier, the con­ firmation process involves overriding governmental interests of a mag­ nitude not present in the decisions cited above. In addition, the cited Comptroller General decisions involve expenditures that benefit the employee in a personal capacity, while the legal services at issue will benefit the employee primarily in an official capacity. For reasons stated above, we conclude that the proposed payment of legal fees by a private foundation would not violate 18 U.S.C §209. T heodore B. O l s o n Assistant Attorney General Office o f Legal Counsel 129

Write a legal research memo on the following topic.

Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service Conflict of interest rules first apply when an appointee begins the duties of his office. May 8, 2002 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF GOVERNMENT ETHICS You have asked for our opinion whether the principal conflict of interest rules of the Executive Branch apply to a person who has been appointed to an office by the President with the advice and consent of the Senate but has not yet begun the duties of that office. 1 We determine that the conflict of interest rules do not apply by virtue of the appointment alone but instead apply only after the appointee has begun the duties of his office. I. The principal conflict of interest restrictions that govern the Executive Branch are found in the criminal conflict of interest laws, 18 U.S.C. §§ 202-209 (2000); the directives in Executive Order No. 12674, Principles of Ethical Conduct for Government Officers and Employees, 3 C.F.R. 215 (1989); and the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. pt. 2635 (2002) (“Standards of Ethical Conduct”). In each case, the reach of the restrictions depends on the meaning of the terms “officer” and “employee.” By their terms, the potentially relevant criminal statutes cover “officers” and “employees.” For example, 18 U.S.C. § 203(a)(1)(B) forbids, among other things, a person’s receipt of compensation for certain representational services rendered “at a time when such person is an officer or employee . . . in the executive . . . branch of the government.” Under 18 U.S.C. § 205(a), “[w]hoever, being an officer or employee of the United States in the executive . . . branch of the Government” acts as an agent or attorney for anyone before an agency or court is guilty of a crime. And 18 U.S.C. § 209(a) bars receipt of a salary or supplement to a salary “as compensation for . . . services as an officer or employee of the executive branch of the United States Government.” Because title 18 sets out no definition of “officer” or “employee,” we have looked to the definitions in title 5 as “‘the most obvious source of a definition’ for title 18 purposes.” Applicability of Executive Order No. 12674 to Personnel of 1 Letter for M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Marilyn L. Glynn, General Counsel, Office of Government Ethics (Jan. 8, 2002) (“OGE Letter”). We earlier gave informal advice reaching the same conclusion as in the present opinion. 32 227-329 VOL_26_PROOF.pdf 42 10/22/12 11:13 AM Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service Regional Fishery Management Councils, 17 Op. O.L.C. 150, 154 (1993) (“Fishery Management Councils”) (quoting Conflict of Interest—Status of an Informal Presidential Advisor as a “Special Government Employee,” 1 Op. O.L.C. 20 (1977) (“Informal Presidential Advisor”)). Under 5 U.S.C. § 2104 (2000), an “officer” is defined to mean someone who is (1) “required by law to be appointed in the civil service by [the President, a court of the United States, the head of an Executive agency, or the Secretary of a military department] acting in an official capacity,” (2) “engaged in the performance of a Federal function under authority of law or an Executive act,” and (3) “subject to the supervision” of the President or the head of an Executive agency or military department. Section 2105 defines “employee” to include not only an “officer,” but also anyone in a larger class of persons who, like “officers,” are engaged in federal functions, but are appointed and supervised by specified federal officials other than those able to appoint and supervise “officers.” The Executive Order similarly imposes certain restrictions on “employees,” defined to mean “any officer[s] or employee[s] of an agency.” Exec. Order No. 12674, § 503(b). Although the Executive Order does not define “officer” or “employee,” we previously have concluded that the terms “are identical in scope and meaning with the terms ‘officer’ and ‘employee’ as used in 5 U.S.C. §§ 2104 and 2105.” Fishery Management Councils, 17 Op. O.L.C. at 153. We rested this conclusion on three grounds. First, we noted that we had turned to the title 5 definitions for guidance in interpreting the criminal conflict of interest laws, and “[b]ecause the objectives of the Order and its implementing regulations are closely related to those of the conflicts statutes, we [thought] it reasonable to look to title 5’s definition of ‘employee’ when elucidating the Order.” Id. at 154 (citation omitted). Second, the Executive Order adopts the definition of “agency” from title 5, with certain exceptions, Exec. Order No. 12674, § 503(c); and “[w]e [thought] it unlikely that the Order was intended to cover personnel who were employed by ‘agencies’ within the meaning of title 5 but who were not themselves ‘employees’ within the same title.” 17 Op. O.L.C. at 154. Third, while the Executive Order states generally that it is based on the authority vested in the President “by the Constitution and laws of the United States,” Exec. Order No. 12674, pmbl., but does not specify the authorizing statutes, “the most obvious statutory source of authority” is the President’s power under title 5 to “prescribe regulations for the conduct of employees in the executive branch,” 5 U.S.C. § 7301 (2000), and this authority brings into play the definition of “employee” in title 5. 17 Op. O.L.C. at 154. The Standards of Ethical Conduct carry out the Executive Order, and we therefore applied our conclusion in Fishery Management Councils about the applicable definitions both to the Executive Order and to these implementing regulations. 17 Op. O.L.C. at 150 n.2, 158. In addition, we note that some of the particular rules in the Standards of Ethical Conduct rest on specific statutory provisions in title 5 that 33 227-329 VOL_26_PROOF.pdf 43 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 use the term “employee” and so invoke the title 5 definition. The rules about gifts to superiors, for example, derive in part from 5 U.S.C. § 7351 (2000), which bars “[a]n employee” from receiving or making certain gifts. 2 The reach of the Standards of Ethical Conduct thus depends, too, on the meaning of the terms “officer” and “employee” in title 5. II. A. The OGE Letter argues that the three parts of the title 5 definitions— appointment by a federal official, engagement in a federal function, and federal government supervision—need not “be applied invariably or formalistically in every case where the application of federal ethics requirements is at issue.” OGE Letter, supra note 1, at 2. In particular, the OGE Letter cites two opinions of our Office—one in which we quoted a previous opinion for the proposition that the title 5 definition of employee “is not necessarily conclusive for conflicts purposes,” Fishery Management Councils, 17 Op. O.L.C. at 154 n.12, and one in which we concluded that “an identifiable act of appointment may not be absolutely essential for an individual to be regarded as an officer or employee in a particular case where the parties omitted it for the purpose of avoiding the application of the conflict-of-interest laws or perhaps where there was a firm mutual understanding that a relatively formal relationship existed,” Informal Presidential Advisor, 1 Op. O.L.C. at 21. Therefore, the OGE Letter argues, satisfaction of only the first part of the title 5 definitions—appointment by a federal official—ought to suffice to render an individual subject to the federal conflict of interest laws. We do not agree. First, as stated above, we have previously opined that the terms “officer[s]” and “employee[s]” in the Executive Order and the Standards of Ethical Conduct “are identical in scope and meaning with the terms ‘officer’ and ‘employee’ as used in 5 U.S.C. §§ 2104 and 2105.” Fishery Management Councils, 17 Op. O.L.C. at 153. We have, in short, concluded that the three parts of the title 5 definitions must be applied invariably in these contexts. Second, with respect to the criminal conflict of interest laws, we do not read our opinions as suggesting any general flexibility to depart from the three-part test, much less to simply disregard two of the three parts. Indeed, particularly in view of the rule of lenity, see Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971), and United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222 (1952)), we would be loath to dilute the 2 The statutory provision that underlies the rules on gifts from outsiders, 5 U.S.C. § 7353 (2000), has its own definition of “officer or employee”—“an individual holding an appointive or elective position in the executive, legislative, or judicial branch of Government, other than a Member of Congress.” Id. § 7353(d)(2). This definition, however, is congruent with the analysis we set out below. 34 227-329 VOL_26_PROOF.pdf 44 10/22/12 11:13 AM Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service three-part test. In this regard, our statement that the title 5 definition of employee “is not necessarily conclusive for conflicts purposes” might more sensibly be read to mean that, in some circumstances, even satisfaction of the three-part test might not conclusively establish that a person is an officer or employee for purposes of the criminal prohibitions. We further note that our conclusion that “an identifiable act of appointment may not be absolutely essential for an individual to be regarded as an officer or employee,” Informal Presidential Advisor, 1 Op. O.L.C. at 21 (emphasis added), does not mean that we concluded that the requirement of appointment by a federal official was not necessary. On the contrary, it presupposes the requirement and merely leaves open the possibility that an individual could be shown to have satisfied the requirement—i.e., to have been appointed—even in the absence of an identifiable act of appointment, if a “formal relationship” had been established between the individual and the government. Id. We therefore look to the statutory definitions of “officer” and “employee” in title 5 in deciding whether the conflict of interest restrictions apply to a person who has been appointed to office by the President with the Senate’s advice and consent but has not yet begun the duties of office. We conclude that a person in these circumstances would not meet at least two of the three statutory tests— engagement in a federal function and federal government supervision—and that the conflict of interest restrictions therefore would not apply to him. Chief Justice Marshall explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 (1803), that “when a commission has been signed by the president, the appointment is made.” In the circumstances here, an appointment in the constitutional sense would thus be complete. Whether the signing of a commission would constitute an “appointment” for purposes of 5 U.S.C. §§ 2104 and 2105 may be less clear. The United States Court of Appeals for the Federal Circuit has held, for example, that appointment under the statute requires “action by the appointee denoting acceptance” and that “[a]cceptance is important, as membership in the civil service imports burdens as well as benefits.” Watts v. OPM, 814 F.2d 1576, 1580 (Fed. Cir. 1987). We need not resolve this issue here, however; we instead assume arguendo that the first part of the test would be met when the President signed the commission. Nevertheless, status as an employee under 5 U.S.C. § 2105 (2000) or an officer under 5 U.S.C. § 2104 requires more than an appointment: “One may be an appointee and never achieve the status of employee. There are three elements to the statute and all must be complied with to achieve the status of an employee.” McCarley v. MSPB, 757 F.2d 278, 280 (Fed. Cir. 1985). 3 In McCarley, the 3 On the question whether the Merit Systems Protection Board or the agency taking the underlying action should be the respondent, which is not at issue here, McCarley was overruled by Hagmeyer v. Dep’t of Treasury, 852 F.2d 531 (Fed. Cir. 1988). Congress then amended the statute to clarify this question. See Amin v. MSPB, 951 F.2d 1247, 1251-54 (Fed. Cir. 1991). 35 227-329 VOL_26_PROOF.pdf 45 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 petitioner had been appointed, but had not entered upon the duties of the position. The Merit Systems Protection Board dismissed his claim for lack of jurisdiction, because jurisdiction depended upon his being an employee. The Federal Circuit affirmed, explaining that relief is unavailable “to an appointee who has not qualified as an employee by performing a federal function subject to the supervision of a federal employee.” Id.; see also Miller v. MSPB, 794 F.2d 660 (Fed. Cir. 1986). Your question concerns appointees, like the petitioner in McCarley, who have not entered upon the duties of their offices and have therefore not yet performed a federal function, under the supervision of a federal official. Under 5 U.S.C. §§ 2104 and 2105, they are not yet officers or employees and thus are not yet subject to conflict of interest restrictions. The reasoning by which we conclude that the conflict of interest restrictions do not become applicable upon appointment, without more, is not novel. In Marbury, Chief Justice Marshall carefully distinguished between the President’s act of appointment and the appointed officer’s subsequent acceptance of that appointment: “The appointment is the sole act of the president; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept.” 5 U.S. at 161; see id. at 162 (“the person appointed . . . has the absolute, unconditional power of accepting or rejecting [the appointment]”). Thus, it is plain under Marbury that the act of appointment does not ipso facto make the appointed person an officer or employee. See also Acceptance of a Promotion, 12 Op. Att’y Gen. 229, 229 (1867) (“a person cannot be made an incumbent without his consent, and, of course, this he must manifest by some adequate token of his intention”; “a formal acceptance is the evidence which, in the public service generally, it has been customary to require”). Assistant Attorney General William H. Rehnquist used parallel reasoning when he concluded that a United States Attorney would not become subject to a particular rule grounded in conflict of interest principles, where that person had been appointed as a federal judge but had not yet taken the oath of judicial office or begun his judicial duties. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Opinion”). According to the Rehnquist Opinion, “the offices of judge and of prosecutor in the same court are incompatible”: it would be “improper as a matter of public policy if the same person carried out their functions,” with the “impropriety deriv[ing] from such considerations as conflicts of interest or the rule that no person shall be a judge in his own cause.” Id. at 5. The appointee in question wished to complete a criminal prosecution before becoming a judge, but the President had already signed his commission and sent it to him. Because “the assumption by an officer 36 227-329 VOL_26_PROOF.pdf 46 10/22/12 11:13 AM Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service of a new office which is incompatible with the one he is holding has the effect of vacating the first office,” id. (citation omitted), the issue was “whether a federal official vacates his office at the time when the President executes and forwards a commission appointing him to an office incompatible with the one which the officer is holding, or whether the vacation of the office takes place at a later date, e.g., when the officer accepts it, or enters upon duty.” Id. The Rehnquist Opinion concluded that although the appointment is made with the signing of the commission, that signing “is not the last step in the investiture of an officer,” id. at 6, and “an appointment must be accepted in order to have [the] effect” of vacating an office already held, id. at 7. As the Rehnquist Opinion explained, “[t]he rule that an incumbent vacates his office only upon acceptance and exercise of an incompatible office, rather than upon appointment to it, is obviously designed to prevent the appointing power from removing an inconvenient officeholder or even a member of the legislature by appointing him to an incompatible office.” Id. at 8. B. The OGE Letter also argues that “the underlying purposes of the ethical requirements are better served by the view that officer or employee status commences with a personnel appointment.” OGE Letter at 2. For example, an appointee might defer his first day of work in order to represent a client before the agency to which he had already been appointed. Id. We do not dispute that the rule that conflict of interest restrictions do not apply immediately upon appointment may indeed open the possibility of some abuses. We note, however, that such a rule also enables an appointee to wind up his private affairs in an orderly manner (presumably in consultation with the Administration) and therefore may be critical to recruiting qualified appointees in the first place. Moreover, in the event of any real abuse, the President could remove the appointee from the office to which he had been appointed, even before he began work. The position advocated in the OGE Letter invites its own set of abuses. If a person were to be subject to conflict of interest restrictions merely upon appointment, the appointing authority “might prejudice the appointee,” Rehnquist Opinion at 7, and even subject him to the threat of criminal liability, by appointing him to an office he did not want and would not undertake. Even in the case of voluntary office-seekers, while it would be highly unusual for an appointee, having undertaken the rigors of the appointment process, to refuse his office, such a decision is far from implausible. Our files reveal, for example, that in 1971 a presidential appointee decided not to serve after the President signed his commission, because he recently had been elected to Congress. See Memorandum for the Honorable Daniel Kingsley, Special Assistant to the President, from Thomas E. Kauper, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Effect of Appointment as a Member of the Air Quality Advisory Board (June 3, 1971). 37 227-329 VOL_26_PROOF.pdf 47 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 A similar decision might be made by someone appointed at the time of a presidential election lost by the incumbent’s party. On balance, were we to decide which rule better promoted the underlying purposes of the conflict of interest rules, we doubt very much that we would adopt the rule advocated by the OGE Letter. But, for the reasons stated above, the choice is not ours to make. C. The OGE Letter further states that “[o]ver the years [OGE has] advised numerous agencies, White House officials, and nominees for Senate-confirmed (PAS) positions that an individual becomes subject to the various ethical requirements upon appointment.” OGE Letter at 1. We note that it appears that OGE has not always had this view. In 1984, we issued an opinion concluding that a statutory bar against outside employment by commissioners of the International Trade Commission applied as of the commencement of duties, rather than as of appointment. Memorandum for Fred F. Fielding, Counsel to the President, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Appointment of New Members to the International Trade Commission (Mar. 22, 1984) (“ITC Opinion”). In the course of this opinion, we noted that “OGE has indicated that as a general matter, it does not apply similar ethical and conflict of interest standards to employees until the time when they actually begin their employment and receive federal pay.” Id. at 10. Although our opinion may require a departure from OGE’s more recent practice, we are persuaded that OGE’s earlier view of the matter was the better one. D. Finally, the OGE Letter expresses concerns about practical application of our conclusion. For example, the letter asks whether an officer starts work when he takes the oath of office or performs some official action. 4 We believe that a Senate-confirmed official becomes an “officer” in the relevant sense when, upon or after accepting his appointment, he actually begins his duties. At that point, the appointee is performing a federal function, under the supervision of the President or the agency head. To meet this test, it is not necessary that he take any particular “official action” in his position. It suffices that he has begun the work of that office. 5 4 In an analogous situation involving a judicial office, the Rehnquist Opinion found it unnecessary to choose between “the time when [the appointee] takes the . . . oath, or when he actually begins to exercise his . . . office.” Rehnquist Opinion at 8. 5 If the official is a “special government employee” under 18 U.S.C. § 202(a) because he is expected to work no more than 130 days in the next year, the first day that, under usual principles, 38 227-329 VOL_26_PROOF.pdf 48 10/22/12 11:13 AM Application of Conflict of Interest Rules to Appointees Who Have Not Begun Service The question when an official begins the duties of his office is a familiar one that must, irrespective of the conflict of interest prohibitions, be addressed and answered for each official. Specifically, an official is entitled to the salary of his office at the time he enters upon the duties of office, see ITC Opinion at 9-10; Interstate Commerce Commission, 19 Op. Att’y Gen. 47, 48 (1887), not at the time of appointment or at the time of the oath of office, see United States v. Flanders, 112 U.S. 88, 91 (1884); Leave for Transferred Employee, 39 Op. Att’y Gen. 304, 305-06 (1939) (Jackson, Acting A.G.). A determination of the time when the conflict of interest rules begin to apply is identical to, and should therefore be no more difficult to make than, the routine determination of the time when the official begins to accrue his salary. M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel counts toward the 130-day limit should be considered the day on which he enters upon his duties. See Office of Government Ethics, Summary of Ethical Requirements Applicable to Special Government Employees, Informal Advisory Op. 00x1, at 5-6 (Feb. 15, 2000), available at http://www.oge.gov/ OGE-Advisories/Legal-Advisories/Legal-Advisories/ (last visited July 12, 2012). The OGE Letter asks whether a special government employee who is reappointed would be subject to conflict of interest restrictions during the period after reappointment but before the next day on which he actually works. This question seems to concern special government employees who are not appointed by the President with the advice and consent of the Senate but are reappointed annually, either by the President or by another officer. OGE Letter at 3. We believe that the reappointments of such employees do not place them in the same position as the Senate-confirmed appointees we address in this opinion. In many instances, as a matter of practice, special government employees are employed continuously, and the successive one-year appointments are primarily a means of enabling the appointing officer to assess whether the work anticipated in the next year will exceed 130 days and require an end to the designation as a special, rather than ordinary, government employee. See Office of Government Ethics, Special Government Employees and 18 U.S.C. §§ 202, 203, and 205, Informal Advisory Op. 81x24, at 2-3 (July 23, 1981), available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/LegalAdvisories/ (last visited July 12, 2012). We believe that the conflict of interest restrictions would apply continuously to a special government employee, until he resigns or the agency notifies him that he has not been reappointed. 39 227-329 VOL_26_PROOF.pdf 49 10/22/12 11:13 AM

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Authority of the Deputy Attorney General Under Executive Order 12333 The Deputy Attorney General has authority to approve searches for intelligence purposes under section 2.5 of Executive Order 12333. November 5, 2001 MEMORANDUM OPINION FOR THE ASSOCIATE DEPUTY ATTORNEY GENERAL You have asked for our opinion whether the Deputy Attorney General has the authority to grant approvals under section 2.5 of Executive Order 12333, 3 C.F.R. § 200 (1981). We believe that he does. Executive Order 12333 addresses the conduct of intelligence activities. Section 2.5 provides: The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such technique shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 [“FISA”], shall be conducted in accordance with that Act, as well as this Order. Under the Department’s regulations, the Deputy Attorney General “is authorized to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.” 28 C.F.R. § 0.15(a) (2000). That regulation rests on the Attorney General’s statutory authority to “make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” 28 U.S.C. § 510 (1994). Consequently, the Deputy Attorney General may exercise the Attorney General’s power under section 2.5 of the Executive Order, unless by law the Attorney General must exercise that power personally. No statute reserves to the Attorney General the power to grant approvals under section 2.5, although one statute arguably is relevant to the question. Under 3 U.S.C. § 301 (2000), the President may delegate any “function which is vested in the President by law” to the head of any department or agency in the Executive Branch or to any official of a department or agency required to be appointed with Senate confirmation. When the President uses this statute to delegate a function, 236 227-329 VOL_25_PROOF.pdf 246 10/22/12 11:10 AM Authority of the Deputy Attorney General Under Executive Order 12333 we have concluded that the power may be redelegated only to officials who occupy Senate-confirmed positions and would also qualify under the statute to receive delegations directly from the President. See Memorandum for Richard W. McLaren, Assistant Attorney General, Antitrust Division, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Revision of Proclamation 3279 (Oil Import Controls) and Implementing Regulations at 1 (Jan. 4, 1971). It is far from clear that the President’s delegation under section 2.5 is pursuant to 3 U.S.C. § 301. Section 301, according to 3 U.S.C. § 302 (2000), does not “limit or derogate from any existing or inherent right of the President to delegate the performance of functions vested in him by law,” and Executive Order 12333, which touches on many aspects of the President’s constitutional power over national security, does not cite 3 U.S.C. § 301 as authority. In any event, even if 3 U.S.C. § 301 applies, the Deputy Attorney General occupies an office requiring Senate confirmation, and he may receive the redelegation of a presidential power. Nor do we believe that Executive Order 12333 itself limits the Attorney General’s ability to delegate to the Deputy Attorney General the power to give approvals under section 2.5. The Supreme Court has observed that “‘[t]he complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions.’” Gravel v. United States, 408 U.S. 606, 617 (1972) (quoting Barr v. Matteo, 360 U.S. 564 (1959)). As we have explained, “[i]t is clear . . . as a ‘general proposition’ of administrative law, that ‘merely vesting a duty in [a cabinet officer] . . . evinces no intention whatsoever to preclude delegation to other officers in the [cabinet officer’s agency] . . . .’” Delegation of Cabinet Member’s Functions as Ex Officio Members of the Board of Directors of the Solar Energy and Energy Conservation Bank, 6 Op. O.L.C. 257, 258 (1982) (quoting United States v. Giordano, 416 U.S. 505, 513 (1974)) (footnote omitted). Here, the argument for an implied limitation under the Executive Order would be that the function in question is exceedingly sensitive and that, by referring to FISA’s provisions on electronic surveillance, the Executive Order incorporates FISA’s limitation that only the Attorney General, Acting Attorney General, or Deputy Attorney General may perform functions vested in the Attorney General by the statute. 50 U.S.C. §§ 1801(g) (1994). Even assuming the validity of this reasoning, it would at most show that the Attorney General’s authority under section 2.5 could not be delegated to an official below the Deputy Attorney General. It does not conflict with the Deputy Attorney General’s exercise of power under the delegation in 28 C.F.R. § 0.15(a). JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel 237 227-329 VOL_25_PROOF.pdf 247 10/22/12 11:10 AM

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Effect of 18 U.S.C. § 600 on Proposal for Hiring Census Enumerators P ro p o sal to g iv e p re fe re n c e fo r h irin g as cen su s e n u m e ra to rs to perso n s reco m m en d ed by D e m o c ra tic P a rty lead ers d o e s n ot v io late 18 U .S .C . § 6 0 0 , w h ic h punishes th o se w h o p ro m ise fed eral em p lo y m en t o r benefits as an en ticem en t to o r re w a rd for future po litical a c tiv ity , b u t d o e s n ot p ro h ib it re w a rd s for past p o litical activ ity . E v e n if § 600 w e re read to p ro h ib it a p ro m ise o f e m p lo y m e n t o r benefits as a re w a rd for past p o litical a c tiv ity , u n d e r th e p ro p o se d p ro g ra m n e ith e r D e m o c ra tic P a rty leaders n o r an y p o ten tial cen su s e n u m e ra to rs are b ein g m ad e su ch a prom ise. February 28, 1980 M EM ORANDUM OPINION FO R T H E ASSISTANT ATTORNEY G EN ER A L, CR IM IN A L DIVISION The White House Counsel’s Office has forwarded for our approval two memoranda to be distributed respectively to Census Bureau offi­ cials responsible for hiring enumerators and to Democratic Party offi­ cials whose recommendations will be sought. These memoranda pro­ vide that Democratic Party leaders will be one of several sources that the Census Bureau will use in compiling lists of names from which to hire enumerators. The candidates nominated by party leaders will re­ ceive a preference; in this way the memoranda continue the program of selecting census enumerators in its traditional, historically established form. We believe that distributing these memoranda will not violate 18 U.S.C. § 600, and that no one will violate 18 U.S.C. § 600 by following the instructions given in these memoranda. I. Analysis 18 U.S.C. § 600 provides: Whoever, directly or indirectly, promises any employ­ ment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consider­ ation in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection 454 with any primary election or political convention or caucus held to select candidates for any political office, shall be fined not more than $10,000 or imprisoned not more than one year, or both. It is our view that § 600, a criminal statute, does not flatly prohibit government decisionmakers from considering the political consequences of their actions in deciding how to administer federal programs. In our opinion, the only way § 600 might be violated in the program at hand is if people were promised employment or special consideration for em­ ployment as census enumerators as an enticement or reward for future political activity or support of a party or candidate; § 600 cannot be read to prohibit rewards for past political activity.1 We believe this interpretation of the statute is correct for several reasons. Section 600 punishes only a person who promises a benefit in return for political support or activity; it conspicuously does not make it illegal simply to grant a benefit. While it is possible to read § 600 to apply to a promise given as a reward for political activity done in the past, such a reading is illogical. There is no reason for Congress to have distinguished between promising a benefit in return for past political support or activity and actually conferring that benefit; indeed, the two acts may often be indistinguishable in practice. Since granting benefits in return for past support was a widespread, well-established practice, and since the language of § 600 clearly stops short of prohibiting that act, we think Congress could not have intended to prohibit the indistin­ guishable—both as a matter of policy and, often, as a matter of fact— act of giving a promise in return for past political activity. Instead, we believe it only logical to conclude that Congress was concerned with eliminating the use of federal funds as an enticement for future political support. If § 600 is interpreted in this way, the program outlined in the proposed memoranda is clearly consistent with it. The people whom Democratic leaders nominate or refer are, of course, being given “spe­ cial consideration in obtaining [a] benefit” provided for by an Act of Congress. But those people are not being promised such special consid­ eration to induce political activity or support. By telling Democratic leaders not to link referrals to political activity, the Bureau is attempt­ ing to ensure as best it can that these leaders will not use their power to obtain special consideration as a way to reward party workers for their activity. Telling Census Bureau workers to give party leaders this instruction also makes it clear that the Bureau’s policy is not itself an 1 T h e legislative history o f the com panion statute, IS U.S.C. §6 0 1 , prohibiting the deprivation o f em ploym ent for political contribution, supports this limited interpretation o f the statutes. F o r exam ple, the Senate report on §601 states that it is designed to "prohibit actual, attem pted, o r threatened deprivation o f public em ploym ent o r benefit as a means o f extorting a political contribution o f a thing o f value . . ." S. Rep. No. 1245, 94th C ong., 2d Sess. 4 (1976) (emphasis added). 455 indirect way of promising employment or special consideration in return for political activity. Of course, if a party official does promise employment as a census enumerator, or special consideration in obtaining such employment, in return for future political activity or support by the promisee, that official will be subject to possible crimi­ nal liability. Such an official would not, however, be acting in accord­ ance with the Administration’s program. Even if § 600 were read to prohibit promises made in return for past political activity, we believe that the program outlined in the proposed memoranda still would not violate that provision. The policy expressed in the memoranda, undoubtedly, does give Democratic Party leaders some privilege; but it does not give those leaders “any employment, position, compensation, contract, appointment, or other benefit, pro­ vided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit”—the benefits to which § 600 applies. Democratic Party leaders are being given only the opportunity to nominate preferred candidates for positions as enu­ merators. This opportunity is not among those benefits that, under § 600, cannot be distributed in return for support of a political party. That is, the party leaders are not themselves receiving a covered benefit. There is a clear distinction between receiving employment or special consideration for employment oneself, and receiving the power to award special consideration for employment to others. Because both sorts of privileges were historically involved in political patronage, we believe that Congress would have specified both if it had intended such a sweeping restriction. Instead, the statute lists benefits of a specific nature; because § 600 is a criminal statute, we believe that list must be literally construed and is exclusive. Finally, we believe that, even if § 600 were read to prohibit a prom­ ise of employment or special consideration as a reward for past political support, the potential enumerators are not being made such a promise in violation of § 600. The proposed memoranda would instruct party leaders not to make their recommendations as a reward for political activity or support, but rather to recommend qualified individuals. L arry A. H am m ond D eputy Assistant Attorney General Office o f L egal Counsel 456

Write a legal research memo on the following topic.

Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 Covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6, and the knowingly element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense. June 1, 2005 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND THE SENIOR COUNSEL TO THE DEPUTY ATTORNEY GENERAL You have asked jointly for our opinion concerning the scope of 42 U.S.C. § 1320d-6 (2000), the criminal enforcement provision of the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (“HIPAA”). Specifically, you have asked, first, whether the only persons who may be directly liable under section 1320d-6 are those persons to whom the substantive requirements of the subtitle, as set forth in the regulations promulgated thereunder, apply—i.e., health plans, health care clearinghouses, certain health care providers, and Medicare prescription drug card sponsors—or whether this provision may also render directly liable other persons, particularly those who obtain protected health information in a manner that causes a person to whom the substantive requirements of the subtitle apply to release the information in violation of that law. We conclude that health plans, health care clearinghouses, those health care providers specified in the statute, and Medicare prescription drug card sponsors may be prosecuted for violations of section 1320d-6. In addition, depending on the facts of a given case, certain directors, officers, and employees of these entities may be liable directly under section 1320d-6, in accordance with general principles of corporate criminal liability, as these principles are developed in the course of particular prosecutions. Other persons may not be liable directly under this provision. The liability of persons for conduct that may not be prosecuted directly under section 1320d-6 will be determined by principles of aiding and abetting liability and of conspiracy liability. Second, you have asked whether the “knowingly” element of section 1320d-6 requires only proof of knowledge of the facts that constitute the offense or whether this element also requires proof of knowledge that the conduct was contrary to the statute or regulations. We conclude that “knowingly” refers only to knowledge of the facts that constitute the offense. 1 1 In reaching the conclusions discussed below, we have considered the views expressed in your submissions concerning the questions you have asked. See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from Paul B. Murphy, Associate Deputy Attorney General, Re: Request for Office of Legal Counsel Opinion on the Scope of the Criminal Medical Records Privacy Statute, 42 U.S.C. § 1320d-6 (Jan. 16, 2004); Letter for Jack L. Goldsmith III, Assistant 76 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 I. Congress enacted the Administrative Simplification provisions of HIPAA to improve “the efficiency and effectiveness of the health care system” by providing for the “establishment of standards and requirements for the electronic transmission of certain health information.” 42 U.S.C. § 1320d note (2000). These provisions added a new “Part C: Administrative Simplification” to title XI of the Social Security Act and have been codified at 42 U.S.C. §§ 1320d–1320d-8 (2000). Part C directs the Secretary of the Department of Health and Human Services (“HHS”) to “adopt standards for transactions, and data elements for such transactions, to enable health information to be exchanged electronically.” Id. § 1320d-2(a)(1); see also id. § 1320d-2(b)(1) (requiring the Secretary to adopt standards concerning unique health identifiers); id. § 1320d-2(c)(1) (same with respect to code sets); id. § 1320d-2(d)(1) (same with respect to security); id. § 1320d-2(e)(1) (same with respect to electronic signatures); id. § 1320d-2(f) (same with respect to transfer of information among health plans). Various provisions of this part further specify the standards to be adopted, the factors the Secretary must consider, the procedures for promulgating the standards, and the timetable for their adoption. Id. §§ 1320d-1–1320d-3. Pursuant to this authority, the Secretary has adopted standards and specifications for implementing them. See 45 C.F.R. pts. 160–164 (2004). Attorney General, Office of Legal Counsel, from Alex M. Azar II, General Counsel, Department of Health and Human Services, Re: Request by the Office of Legal Counsel for HHS Views on 42 U.S.C. § 1320d-6 (Mar. 18, 2004); Memorandum for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from Christopher A. Wray, Assistant Attorney General, Criminal Division, Re: Criminal Division Position on the Scope of the Criminal Medical Records Privacy Statute, 42 U.S.C. § 1320d-6 (May 27, 2004) (attaching Memorandum for File, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: CRM response to HHS-OGC Letter (May 20, 2004)); Letter for Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, from Alex M. Azar II, General Counsel, Department of Health and Human Services (Aug. 6, 2004); E-mail for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: 42 U.S.C. 1320d-6 (Nov. 15, 2004) (with attachment); Letter for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services (Dec. 21, 2004); Letter for John C. Demers, AttorneyAdviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services, Re: Scope of Enforcement Under 42 U.S.C. § 1320d-6; Draft Opinion of December 17, 2004—Request for Comments (Dec. 23, 2004); Memorandum for File, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: Comments on the Revised OLC Draft Opinion on the HIPAA Criminal Medical Privacy Statute (transmitted Feb. 18, 2005); Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from John McKay, United States Attorney for the Western District of Washington, Re: Scope of Criminal Prosecutions under HIPAA (Mar. 17, 2005); Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Michael Sullivan, United States Attorney for the District of Massachusetts, Re: Scope of Criminal Prosecutions under HIPAA (Mar. 20, 2005); Letter for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services, Re: Scope of 42 U.S.C. § 1320d-6 (May 5, 2005). We appreciate the thoroughness and thoughtfulness of these submissions. 77 Opinions of the Office of Legal Counsel in Volume 29 Section 1320d-1 specifies the persons to whom the standards apply: Any standard adopted under this part shall apply, in whole and in part, to the following persons: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction referred to in section 1320d-2(a)(1) of this title. See also 45 C.F.R. § 160.102(a) (with respect to general administrative requirements, “[e]xcept as otherwise provided, the standards, requirements, and implementation specifications adopted under this subchapter apply to” the entities listed in section 1320d-1); id. § 162.100 (same with respect to additional administrative requirements); id. § 164.104 (same with respect to security and privacy regulations). The regulations refer to each of these three groups of persons as a “covered entity.” Id. § 160.103. To this list of persons to whom the standards apply, Congress later added Medicare prescription drug card sponsors. Medicare Prescription Drug, Improvement and Modernization Act of 2003, Pub. L. No. 108173, § 101(a)(2), 117 Stat. 2071, 2144 (“For purposes of the program under this section, the operations of an endorsed program are covered functions and a prescription drug card sponsor is a covered entity for purposes of applying part C of title XI and all regulatory provisions promulgated thereunder. . . .”) (codified at 42 U.S.C. § 1395w-141(h)(6)(A) (Supp. III 2004)). Various statutes and regulations define these four categories of covered entities. A “prescription drug card sponsor” is “any nongovernmental entity that the Secretary [of HHS] determines to be appropriate to offer an endorsed discount card program” including “a pharmaceutical benefit management company” and “an insurer.” 42 U.S.C. § 1395w-141(h)(1)(A)(i), (iii) (Supp. III 2004). A “health plan” is “an individual or group plan that provides, or pays the cost of, medical care.” Id. § 1320d(5) (2000). A “health care clearinghouse” is an “entity that processes or facilitates the processing of nonstandard data elements of health information into standard data elements.” Id. § 1320d(2). Finally, a “health care provider” is any “person furnishing health care services or supplies,” including a “provider of services” and a “provider of medical or other health services.” Id. § 1320d(3). These latter two terms are further defined in 42 U.S.C. § 1395x (2000). A “provider of services” is a “hospital, critical access hospital, skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, [or] hospice program . . . .” Id. § 1395x(u). And a “provider of medical and other health services” is any person who provides any of a long list of such services, including “physicians’ services,” “services and supplies . . . furnished as 78 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 an incident to a physician’s professional service, of kinds which are commonly furnished in physicians’ offices and are commonly either rendered without charge or included in the physicians’ bills,” “outpatient physical therapy services,” “qualified psychologist services,” “clinical social worker services,” and certain services “performed by a nurse practitioner or clinical nurse specialist.” Id. § 1395x(s). These health care providers only qualify as covered entities if they “transmit[] any health information in electronic form in connection with” certain transactions described in section 1320d-2. Id. § 1320d-1(a)(3). The regulations further define the covered entities. See 45 C.F.R. § 160.103. These covered entities must comply with the regulations promulgated pursuant to Part C. Section 1320d-4 requires compliance with the regulations within a certain time period by “each person to whom the standard or implementation specification [adopted or established under sections 1320d-1 and 1320d-2] applies.” 42 U.S.C. § 1320d-4(b). Failure to comply with the regulations may render the covered entity either civilly or criminally liable. The statute grants to the Secretary of HHS the authority for civil enforcement of the standards. Section 1320d-5(a) states, “Except as provided in subsection (b) of this section, the Secretary shall impose on any person who violates a provision of this part a penalty of not more than $100 for each such violation . . . .” Id. § 1320d-5(a)(1). Subsection (b) provides for three exceptions. First, a civil “penalty may not be imposed . . . with respect to an act if the act constitutes an offense punishable under” the criminal enforcement provision. Id. § 1320d5(b)(1). Second, a civil “penalty may not be imposed . . . with respect to a provision of this part if it is established to the satisfaction of the Secretary that the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision.” Id. § 1320d5(b)(2). Third, a civil “penalty may not be imposed . . . if the failure to comply was due to reasonable cause and not to willful neglect; and the failure to comply is corrected” within a specified period of time. Id. § 1320d-5(b)(3). The statute prescribes criminal sanctions only for those violations of the standards that involve the disclosure of “unique health identifiers,” id. § 1320d-6(a), or of “individually identifiable health information,” id., that is, that subset of health information that, inter alia, “identifies the individual” or “with respect to which there is a reasonable basis to believe that the information can be used to identify the individual,” id. § 1320d(6). More specifically, section 1320d-6(a) provides: A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or 79 Opinions of the Office of Legal Counsel in Volume 29 (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. Subsection (b) sets forth a tiered penalty scheme. A violation of subsection (a) is punishable generally as a misdemeanor by a fine of not more than $50,000 and/or imprisonment for not more than one year. Id. § 1320d-6(b)(1). Certain aggravating circumstances may make the offense a felony. Subsection (b)(2) provides for a maximum penalty of a $100,000 fine and/or five-year imprisonment for violations committed under false pretenses. Id. § 1320d-6(b)(2). And subsection (b)(3) reserves the statute’s highest penalties—a fine of not more than $250,000 and/or imprisonment of not more than ten years—for those offenses committed “with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm.” Id. § 1320d-6(b)(3). II. A. We address first which persons may be prosecuted under the criminal enforcement provision, section 1320d-6. Specifically, we address whether section 1320d-6 renders liable only covered entities or whether the provision applies to any person who does an act described in that provision, including, in particular, a person who obtains protected health information in a manner that causes a covered entity to violate the statute or regulations. We conclude that an analysis of liability under section 1320d-6 must begin with covered entities, the only persons to whom the standards apply. If the covered entity is not an individual, general principles of corporate criminal liability will determine the entity’s liability and that of individuals within the entity, including directors, officers, and employees. Finally, certain conduct of these individuals and that of other persons outside the covered entity, including of recipients of protected information, may be prosecuted in accordance with principles of aiding and abetting liability and of conspiracy liability. We begin with the language of the statute. See Liparota v. United States, 471 U.S. 419, 424 (1985) (“The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely the creatures of statute.”). Section 1320d-6(a) states that: A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; 80 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. Because Congress enacted the Administrative Simplification provisions for the express purpose of facilitating the use of health identifiers and the acquisition and disclosure of health information, an act listed in subsections (a)(1) to (a)(3) must be done “in violation of this part” in order to constitute a criminal offense. The phrase “this part” refers to “Part C—Administrative Simplification,” codified at sections 1320d to 1320d-8. Section 1320d-1(a) makes clear that the standards promulgated under Part C apply only to covered entities: “Applicability. Any standard adopted under this part shall apply, in whole or in part, to the following persons: (1) A health plan. (2) A health care clearinghouse. (3) [Certain] health care provider[s] . . . .” Id. § 1320d-1(a); see also 45 C.F.R. § 160.102(a); id. § 162.100; id. § 164.104; Exec. Order No. 13,181, 65 Fed. Reg. 81,321 (Dec. 20, 2000), reprinted in 42 U.S.C. § 1320d-2 note (“HIPAA applies only to ‘covered entities,’ such as health care plans, providers, and clearinghouses. HIPAA regulations therefore do not apply to other organizations and individuals that gain access to protected health information . . . .”). Congress expanded this list to include Medicare prescription drug card sponsors “for purposes of applying part C[’s]” Administrative Simplification provisions. 42 U.S.C. § 1395w-141(h)(6)(A). And these provisions require only “each person to whom the standard or implementation specification applies”—i.e., the covered entities—to comply with it. Id. § 1320d-4(b). Because Part C makes the standards applicable only to covered entities and because it mandates compliance only by covered entities, only a covered entity may do one of the three listed acts “in violation of this part.” Other persons cannot violate Part C directly because the part simply does not apply to them. When the covered entity is not an individual, principles of corporate criminal liability discussed infra will determine when a covered entity has violated Part C and when these violations can be attributed to individuals in the entity. 2 That the statute criminalizes the “obtain[ing]” of individually identifiable health information in violation of Part C, id. § 1320d-6(a)(2), in addition to its disclosure, does not convince us that our reading of section 1320d-6 according to its plain terms is incorrect. It could be argued that, by including a distinct prohibition on obtaining health information, the law was intended to reach the acquisition of health information by a person who is not a covered entity but who “obtains” it 2 We express no opinion in this memorandum as to whether any particular person or entity may qualify as a covered entity for purposes of liability under sections 1320d-5 or 1320d-6. 81 Opinions of the Office of Legal Counsel in Volume 29 from such an entity in a manner that causes the entity to violate Part C. Id. Further examining the statute and the regulations, however, reveals that the inclusion of section 1320d-6(a)(2) merely reflects the fact that the statute and the regulations limit the acquisition, as well as the disclosure and use, of information by covered entities. Those sections of the statute authorizing the Secretary of HHS to promulgate regulations speak broadly of adopting standards, inter alia, “for transactions,” “providing for a standard unique health identifier,” and concerning “security.” Id. § 1320d-2(a)(1)(A), (b)(1), (d). They do not speak only of regulations governing the “use” and “disclosure” of information; the language used in these provisions easily encompasses the acquisition of information. 3 Pursuant to this authority, the Secretary has promulgated regulations governing the acquisition of certain information by a covered entity. See, e.g., 45 C.F.R. § 164.500(b)(1) (“When a health care clearinghouse creates or receives protected health information . . . .”) (emphasis added); id. § 164.502(b)(1) (“When using or disclosing protected health information or when requesting protected health information from another covered entity . . . .”) (emphasis added); id. § 164.514(d)(4)(i) (“A covered entity must limit any request for protected health information to that which is reasonably necessary . . . .”) (emphasis added). Failure to comply with these regulations may render a covered entity liable for “obtain[ing] individually identifiable health information” “in violation of this part.” 42 U.S.C. § 1320d-6(a)(2). 4 The difference between the language used in the civil enforcement provision and that used in the criminal enforcement provision does not support a broader reading of section 1320d-6. The civil enforcement provision makes liable “any 3 The only statutory section cast in terms of “use” and “disclosure” is the requirement that the Secretary submit to Congress “recommendations on standards with respect to the privacy of individually identifiable health information . . . address[ing] at least . . . the uses and disclosures of such information.” Id. § 1320d-2 note. But as discussed above, this quoted language is not found in the main provisions of HIPAA that grant the Secretary authority to promulgate regulations; those provisions use broader terminology that easily includes the authority to regulate the acquisition of information. See id. § 1320d-2. Instead, this section solicited recommendations for further legislation concerning health privacy, facilitated congressional oversight of the privacy rules the Secretary developed, and required the Secretary to issue such rules if Congress did not act on the recommendations within a certain time period; it is not a restriction of the authority given elsewhere in the statute. See infra note 12. And on its face this provision does not purport to describe the extent of the Secretary’s authority, as it requires the privacy recommendations to address “at least” the “uses” and “disclosures” of covered information. Id. § 1320d-2 note (emphasis added); see also id. (same with respect to the privacy regulations). Finally, a rule “address[ing]” the “disclosure” of information may well regulate the acquisition of information by a covered entity because obtaining information generally involves the “disclosure” of it by another person. The provision’s use of the noun “disclosure,” therefore, does not help to answer the question before us. 4 Nor does the inclusion of “causes to be used” as well as “use” in section 1320d-6(a)(1) compel us to conclude—contrary to the plain language of the statute—that the provision renders liable entities that are not covered by the regulations but that “cause” a covered entity to “use” unique health identifiers in violation of the part. This language is better read to cover those instances in which a covered entity causes, in violation of the part, another person to use a unique health identifier, but where the covered entity itself did not use the identifier in an unauthorized manner. 82 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 person who violates a provision of this part.” Id. § 1320d-5(a)(1). The criminal enforcement provision makes it a crime to do certain acts “knowingly and in violation of this part.” Id. § 1320d-6(a). To be sure, the statute must be read as a whole and variations in the language of closely related provisions should be given effect if possible. See Bryan v. United States, 524 U.S. 184, 191–93 (1998) (interpreting the requirement that an act be done “willfully” in one subsection of the statute by reference to the “knowingly” requirement contained in other subsections of the same statute). Here, however, the difference in phrasing used in the two provisions does not constitute a basis for concluding that section 1320d-6 reaches persons who are not, or are not part of, a covered entity. Section 1320d-6’s use of “in violation of,” as opposed to “who violates,” reflects only the difference in the scope of the conduct proscribed by the two sections. Section 1320d-5 is phrased as it is—“any person who violates a provision of this part”—because a violation of any of the standards subjects the violator to civil penalties. 42 U.S.C. § 1320d-5(a)(1). In contrast, criminal punishment is restricted to those violations of the standards—specified in subsections (a)(1) to (a)(3) of section 1320d-6(a)— that involve the improper use, acquisition, or disclosure of individually identifiable health information or unique health identifiers. Section 1320d-6(a) makes liable a person who “uses or causes to be used,” “obtains,” or “discloses” such health information. Having described the prohibited acts using present tense verbs, the provision could not retain the “violates this part” formulation; instead, it uses “in violation of this part” to make clear that only those uses, acquisitions, and disclosures in a manner contrary to the regulations are illegal. The difference in language between section 1320d-5 and section 1320d-6 is thus best understood as nothing more than a grammatical accommodation resulting from the need to describe the acts for which section 1320d-6 prescribes criminal liability. 5 Although we conclude that Part C applies only to covered entities, we do not read the term “person” at the beginning of section 1320d-6 to mean “covered entity.” Such a reading would not only be contrary to the language of that provision but also create tension with other parts of the statute that appear to use the term broadly, see, e.g., id. § 1320d-6(a)(3) (prohibiting “disclos[ures] to another person”), and with the Dictionary Act, codified at 1 U.S.C. § 1 (2000), which sets forth a presumptively broad definition of person wherever the term is 5 At most, the difference in phrasing between section 1320d-5 and section 1320d-6 would render the statute ambiguous. If that were the case, it might be appropriate to apply the rule of lenity and conclude that the statute is best read not to subject to direct prosecution persons other than covered entities and those rendered liable by general principles of corporate criminal liability. See Rewis v. United States, 401 U.S. 808, 812 (1971) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”). But as the language of the statute unambiguously compels the same result, we do not apply the rule of lenity here. See Chapman v. United States, 500 U.S. 453, 463 (1991) (“The rule of lenity . . . is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act . . . .”) (citation and quotation omitted). 83 Opinions of the Office of Legal Counsel in Volume 29 used in the United States Code, 6 a definition presumptively applicable here because the defined terms specific to Part C do not include the term “person.” See 42 U.S.C. § 1320d. We conclude only that the phrase “in violation of this part” restricts the universe of persons who may be prosecuted directly. Section 1320d-6 provides criminal penalties for “person[s]” who perform the listed acts “knowingly” and “in violation of this part.” Id. § 1320d-6. The “in violation of this part” limitation on the scope of liability—like the “knowingly” requirement—is distinct from the definition of “person.” It describes that subset of persons who may be held liable, provided that the other elements of the offense are also satisfied. Under this reading of the statute, section 1320d-6(a)(3) continues to make “covered entities” liable for disclosure to any “person.” We have considered other laws using the phrase “in violation of.” None of these laws supports the view that, as used in 42 U.S.C. § 1320d-6, the phrase should be read more expansively than we conclude. For instance, several of these laws apply to the public generally, and, accordingly, do not shed light on whether section 1320d-6 allows direct prosecutions of persons other than those to whom the substantive requirements of HIPAA’s Part C apply. See, e.g., 18 U.S.C. § 547 (2000) (“Whoever receives or deposits merchandise in any building upon the boundary line between the United States and any foreign country, or carries merchandise through the same, in violation of law . . . .”) (emphasis added); 18 U.S.C. § 1590 (2000) (“Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter . . . .”) (emphasis added). And the phrasing of other laws makes it clear that “in violation of” describes an item involved in the prohibited act, as opposed to the act itself. For instance, 18 U.S.C. § 2113(c) (2000) penalizes “[w]hoever receives . . . property . . . which has been taken . . . in violation of subsection (b) . . . .” Id. In this case, the placement of the phrase “in violation of” following the word “which” makes plain that the phrase describes only the property, a reading confirmed by the provision’s use of the passive “has been taken.” Id.; see also 18 U.S.C. § 1170(b) (2000) (“Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act . . . .”) (emphasis added). In contrast, the phrase “in violation of” in section 1320d-6 does not modify the type of health care information involved in the offense; rather, it relates directly to the acts prohibited by the provision (i.e., “uses or causes to be used,” “obtains,” or “discloses”). Finally, we have reviewed the cases interpreting these and other potentially analogous provisions and have found none that would 6 “In determining the meaning of any Act of Congress, unless the context indicates otherwise— the word[] person[] . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. 84 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 cause us to read section 1320d-6 in any way other than in accordance with its plain meaning. 7 We conclude, therefore, that an assessment of liability under section 1320d-6 must begin with covered entities. The statute and regulations determine which individuals and entities qualify as a “covered entity.” See 42 U.S.C. § 1320d; id. § 1395w-141(h)(1); id. § 1395x; 45 C.F.R. § 160.103. 8 A health care provider is any “person furnishing health care services or supplies,” and will be either an individual or an entity. 42 U.S.C. § 1320d(3); see also id. § 1395x. In contrast, a “health care clearinghouse,” “health plan,” and Medicare “prescription drug card sponsor” will virtually never be an individual. See id. § 1320d(2) & (5); id. § 1395w-141(h)(1)(A). When the covered entity is not an individual, principles of corporate criminal liability will determine the entity’s liability and the potential liability of particular individuals who act for the entity. Although we do not elaborate these principles here, in general, the conduct of an entity’s agents may be imputed to the entity when the agents act within the scope of their employment, and the criminal intent of agents may be imputed to the entity when the agents act on its behalf. See Kathleen F. Brickley, Corporate Criminal Liability §§ 3–4 (2d ed. 1992). In addition, we recognize that, at least in limited circumstances, the criminal liability of the entity has been attributed to individuals in managerial roles, including, at times, to individuals with no direct involvement in the offense. See id. § 5. 9 Consistent with these general principles, it may be that such individuals in particular cases may be prosecuted directly under section 1320d-6. 7 Consistent with our reading of 42 U.S.C. § 1320d-6, the Sixth Circuit has held that the Video Privacy Protection Act’s (“VPPA”) creation of a cause of action for “[a]ny person aggrieved by any act of a person in violation of this section,” 18 U.S.C. § 2710(c)(1) (2000), allows suits against only video tape service providers and not against all persons. See Daniel v. Cantrell, 375 F.3d 377, 382–84 (6th Cir. 2004). In that case, the plaintiff had sued several persons who were not video tape service providers, alleging that they had violated the privacy right in his video rental records given him by the statute. Similar to section 1320d-6, the VPPA cause of action provision refers to acts of “a person in violation of this section.” 18 U.S.C. § 2710(c)(1). The court reasoned that because the operative provision of the VPPA provides that “[a] video tape service provider who knowingly discloses . . . personally identifiable information . . . shall be liable,” id. § 2710(b), only such providers could be “in violation of” the statute. Daniel, 375 F.3d at 383–84. Accordingly, despite the use of the broad term “person” in section 2710(c)(1), only video tape service providers may be sued under that section. 8 The statute and regulations do not limit the actions for which a covered entity may be held liable to those activities that render the person a covered entity. Once a person is a covered entity, he must “comply with [an applicable] standard or specification,” 42 U.S.C. § 1320d-4(b)(1)(A) and “may not use or disclose protected health information, except as permitted or required by” the regulations, 45 C.F.R. § 164.502. Thus, a physician who is a covered entity in part because he transmits certain health care information electronically must not disclose such protected information, either electronically or otherwise, except as authorized by the regulations. And a physician who is a covered entity must comply with the standards with respect to protected information concerning both his own patients and those patients he is not treating. 9 “Many regulatory statutes . . . make corporate officials vulnerable to prosecution for criminal conduct in which they did not personally participate and about which they had no personal knowledge.” Id. § 5.01; see also United States v. Jorgensen, 144 F.3d 550, 559–60 (8th Cir. 1998) (applying the 85 Opinions of the Office of Legal Counsel in Volume 29 Other conduct that may not be prosecuted under section 1320d-6 directly may be prosecuted according to principles either of aiding and abetting liability or of conspiracy liability. 10 The aiding and abetting statute renders “punishable as a principal” anyone who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission” and anyone who “willfully causes an act to be done which if directly performed by him or another would be an offense against the United States.” 18 U.S.C. § 2 (2000). And the conspiracy statute prescribes punishment “if two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy.” 18 U.S.C. § 371 (2000). 11 Further discussion of corporate criminal liability, aiding and abetting liability, and conspiracy liability in the absence of a specific factual context would be unfruitful, particularly because the contours of these legal principles may vary by jurisdiction. Accordingly, we leave the scope of criminal liability under these principles for consideration in the ordinary course of prosecutions. 12 B. We address next whether the “knowingly” element of the offense set forth in 42 U.S.C. § 1320d-6 requires the government to prove only knowledge of the facts that constitute the offense or whether this element also requires proof that the defendant knew that the act violated the law. We conclude that the “knowingly” principle that “a corporate officer who is in a responsible relationship to an activity within a company that violates provisions of . . . federal . . . laws . . . can be held criminally responsible even though that officer did not personally engage in that activity” in the context of a statute that required proof of “intent to defraud” when the defendant possessed the requisite intent) (quotations and citations omitted). 10 Depending on the specific facts and circumstances, such conduct may also be punishable under other federal laws. See, e.g., 18 U.S.C. § 1028 (2000 & Supp. III 2004) (identity theft); id. § 1030 (2000 & Supp. III 2004) (fraudulent access of a computer). 11 For instance, an individual who is not a covered entity who aids or conspires with a covered entity in the use of protected health information in a manner not authorized by the regulations (e.g., to establish a fraudulent billing scheme) could be charged under section 2 or section 371 of title 18. 12 We note that conduct punishable under section 1320d-6 may also be punishable under state law and render a person liable in tort. See generally Peter A. Winn, Confidentiality in Cyberspace: The HIPAA Privacy Rules and the Common Law, 33 Rutgers L.J. 617 (2002). When Congress enacted HIPAA, it was concerned that state statutory and common law provided inadequate and uneven protection for health information. Congress sought to create a nationwide floor for such protection. See Preamble, Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule Preamble”), 65 Fed. Reg. 82,462, 82,463–64 (Dec. 28, 2000). Thus, HIPAA’s privacy rules preempt only those contrary state laws that are less stringent than the applicable federal privacy rules. See 42 U.S.C. § 1320d-7(a)(2)(B); 45 C.F.R. § 160.203(b) (“A standard, requirement, or implementation specification . . . that is contrary to a provision of State law preempts the provision of State law . . . except if . . . [t]he provision of State law relates to the privacy of individually identifiable health information and is more stringent than” the federal standard.). All other criminal and civil liability for breaches of a duty concerning the privacy of health information that existed prior to HIPAA remains after its passage. 86 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 element is best read, consistent with its ordinary meaning, to require only proof of knowledge of the facts that constitute the offense. We begin again with the text of 42 U.S.C. § 1320d-6(a). See Liparota, 471 U.S. at 424. A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. 42 U.S.C. § 1320d-6(a). A plain reading of the text indicates that a person need not know that commission of an act described in subsections (a)(1) to (a)(3) violates the law in order to satisfy the “knowingly” element of the offense. Section 1320d-6 makes the requirements that the act be done “knowingly” and that it be done “in violation of this part” two distinct requirements. These two elements do not modify each other; rather, they independently modify “uses or causes to be used,” “obtains,” and “discloses.” For example, defendants will be guilty of an offense if they both “knowingly” “disclose[] individually identifiable health information” and they “in violation of this part” “disclose[] individually identifiable health information.” The view that the statute requires proof of knowledge of the law effectively reads “knowingly” to refer to the “violation of this part.” But this reading is contrary to the plain language of the statute, which sets forth these terms as two separate elements each independently modifying the third element, i.e., one of the listed acts. Accordingly, to incur criminal liability, a defendant need have knowledge only of those facts that constitute the offense. Our reading of the “knowingly” element of the offense comports with the usual understanding of the term. The Supreme Court has stated that “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Bryan, 524 U.S. at 193 (footnote omitted) (“[T]he term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law.”). As set forth above, the text of section 1320d-6 does not “dictate[] a different result.” Bryan, 524 U.S. at 193. In fact, its text dictates an interpretation consistent with the ordinary understanding of “knowingly” as referring only to “knowledge of the facts that constitute the offense.” Id. The plain meaning of the “knowingly” element of section 1320d-6 must control, “at least where the disposition required by the text is not absurd.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). We 87 Opinions of the Office of Legal Counsel in Volume 29 consider whether our reading of the criminal provision is absurd in light of the possible exception to civil liability for reasonable ignorance of the law. Sections 1320d-5 and 1320d-6 operate in a complementary fashion, covering mutually exclusive conduct. See 42 U.S.C § 1320d-5(b)(1) (excepting from civil penalties an act that “constitutes an offense punishable under section 1320d-6 of this title.”). 13 The civil enforcement section provides, “A penalty may not be imposed . . . if . . . the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision.” Id. § 1320d-5(b)(2). Section 1320d-5 therefore may be read to premise civil liability on knowledge that the act in question violated the applicable standard, not just on knowledge that the particular act occurred. 14 If civil sanctions (of fines up to $100) may be avoided by establishing reasonable ignorance of the law, it might at first blush appear to be an absurd result to conclude that the significantly more serious criminal punishments (of fines up to $250,000 and imprisonment of up to ten years) may not be similarly excused. The absurd results canon of construction is “rarely invoke[d] . . . to override unambiguous legislation.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459 (2002); Public Citizen v. Dep’t of Justice, 491 U.S. 440, 470–71 (1989) (Kennedy, J., concurring) (noting that the canon is limited “to situations where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result, and where the alleged absurdity is so clear as to be obvious to most anyone.”). Applying the usual definition of “knowingly” here does not yield an absurd result, and certainly not one so absurd that it would cause us to read the statute contrary to its plain meaning. The argument that the statute should not be read so as to impose criminal punishment on the basis of a lesser degree of intent than that required for civil sanction would be more compelling if sections 1320d-5 and 1320d-6 covered the same acts. But they do not. See 42 U.S.C. § 1320d-5(b)(1). Civil sanctions may be imposed for violations of a wide variety of regulations. For these violations, the statute provides a maximum $100 fine and sets forth certain exceptions to liability. Id. § 1320d-5 (“General penalty for failure to comply with requirements and standards”). 15 In contrast, of all the possible violations of the regulations, section 13 Thus, the Secretary may not impose civil sanctions for the commission of an act that subjects a person to the possibility of criminal prosecution, regardless of whether the person is in fact punished criminally. 14 This is not the only possible reading of section 1320d-5(b)(2). This paragraph is headed “Noncompliance not discovered,” and the language of the provision—“the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision”—could be read to refer to ignorance of the facts that constitute the violation, rather than ignorance of the law. But to answer the questions you have asked, we need not decide which reading is better. 15 In addition to the exception noted above, section 1320d-5(b) contains another defense to liability where “(i) the failure to comply was due to reasonable cause and not to willful neglect; and (ii) the failure to comply is corrected during the 30-day period beginning on the first date the person liable for 88 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 1320d-6 carves out a limited set and subjects them to criminal punishment. Such punishment is reserved for violations involving “unique health identifiers” and “individually identifiable health information.” Id. § 1320d-6 (“Wrongful disclosure of individually identifiable health information”). Thus, the statute reflects a heightened concern for violations that intrude upon the medical privacy of individuals. In light of this concern, there is nothing obviously absurd about the statute’s allowing a defense of reasonable ignorance of the law for those regulatory violations subject to civil penalty, but withholding this defense with respect to those violations that threaten the privacy of individuals. Accordingly, even reading section 1320d-6 in light of section 1320d-5(b)’s exception to civil liability for reasonable ignorance of the law gives us no reason to doubt that the plain and ordinary meaning of the “knowingly” element of section 1320d-6 is the correct one. Nor is it proper to apply here the exception to the usual meaning of “knowingly” exemplified by Liparota. See id., 471 U.S. at 424–28. Liparota is the case cited by the Supreme Court in Bryan as an example of the exception to the rule—when “the text of the statute dictates a different result”—that “knowingly” refers to the facts that constitute the offense and not to the law. Bryan, 524 U.S. at 193 & n.15. In Liparota, the Supreme Court held that a statute forbidding fraudulent use of food stamps required proof of knowledge that the use was unauthorized. 471 U.S. at 433. The statute in that case read: “whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter” shall be guilty of a criminal offense. Id. at 420–21 n.1 (quoting 7 U.S.C. § 2024(b)(1)). This language is at least ambiguous; “knowingly” may modify, for example, either only the verb “uses” or it may modify the entire verbal phrase “uses . . . in any manner not authorized.” Id.; see id. at 424 (The “interpretations proffered by both parties accord with congressional intent . . . . [T]he words themselves provide little guidance. Either interpretation would accord with ordinary usage.”); id. at 424 n.7 (referring to the statutory language and noting that “[o]ne treatise has aptly summed up the ambiguity in an analogous situation”) (emphasis added). But see Bryan, 524 U.S. at 193 n.15 (citations omitted) (in Liparota, “we concluded that both the term ‘knowing’ . . . and the term ‘knowingly’ . . . literally referred to knowledge of the law as well as knowledge of the relevant facts”). The Supreme Court then considered the presumption that criminal statutes contain a mens rea element, 16 applied the rule of lenity, and rested its interpretation, in large part, on the penalty knew, or by exercising reasonable diligence would have known, that the failure to comply occurred.” Id. § 1320d-5(b)(3). 16 “[C]riminal offenses requiring no mens rea have a ‘generally disfavored status.’” Liparota, 471 U.S. at 426 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978)); Staples v. United States, 511 U.S. 600, 606 (1994) (“[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.”). 89 Opinions of the Office of Legal Counsel in Volume 29 the concern that the contrary reading would “criminalize a broad range of apparently innocent conduct.” Liparota, 471 U.S. at 426–27. Here, the “knowingly” element of section 1320d-6 is not ambiguous; thus, it would be inappropriate to resort to the rule of lenity. See Chapman v. United States, 500 U.S. 453, 463 (1991) (“The rule of lenity . . . is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act . . . .”) (citation and quotation omitted). Moreover, our interpretation of “knowingly” does not dispense with the mens rea requirement of section 1320d-6 and create a strict liability offense; satisfaction of the “knowingly” element will still require proof that the defendant knew the facts that constitute the offense. See Staples v. United States, 511 U.S. 600, 622 n.3 (1994) (Ginsburg, J., concurring) (“The mens rea presumption requires knowledge only of the facts that make the defendant’s conduct illegal, lest it conflict with the related presumption, deeply rooted in the American legal system, that, ordinarily, ignorance of the law or a mistake of law is no defense to criminal prosecution.”) (quotations and citations omitted). Finally, the concern expressed in Liparota about criminalizing a broad swath of seemingly innocent conduct is less present here. The statute in Liparota criminalized the unauthorized use of food stamps by any participant in the program, as well as by any person who might come in possession of these stamps. 471 U.S. at 426–27. In contrast, section 1320d-6, as we conclude above, applies directly to covered entities. These covered entities—health plans, health care clearinghouses, certain health care providers, and Medicare prescription drug card sponsors—are likely well aware that the health care business they conduct is heavily regulated by HIPAA and other laws. To the extent that some concern remains, it is insufficient to override the plain meaning of the statute. Accordingly, Liparota provides no support for giving “knowingly” in section 1320d-6 a meaning different from its usual understanding as referring only to knowledge of the facts that constitute the offense. III. For the foregoing reasons, we conclude that covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6 and that the “knowingly” element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 90

Write a legal research memo on the following topic.

Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 Covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6, and the knowingly element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense. June 1, 2005 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND THE SENIOR COUNSEL TO THE DEPUTY ATTORNEY GENERAL You have asked jointly for our opinion concerning the scope of 42 U.S.C. § 1320d-6 (2000), the criminal enforcement provision of the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (“HIPAA”). Specifically, you have asked, first, whether the only persons who may be directly liable under section 1320d-6 are those persons to whom the substantive requirements of the subtitle, as set forth in the regulations promulgated thereunder, apply—i.e., health plans, health care clearinghouses, certain health care providers, and Medicare prescription drug card sponsors—or whether this provision may also render directly liable other persons, particularly those who obtain protected health information in a manner that causes a person to whom the substantive requirements of the subtitle apply to release the information in violation of that law. We conclude that health plans, health care clearinghouses, those health care providers specified in the statute, and Medicare prescription drug card sponsors may be prosecuted for violations of section 1320d-6. In addition, depending on the facts of a given case, certain directors, officers, and employees of these entities may be liable directly under section 1320d-6, in accordance with general principles of corporate criminal liability, as these principles are developed in the course of particular prosecutions. Other persons may not be liable directly under this provision. The liability of persons for conduct that may not be prosecuted directly under section 1320d-6 will be determined by principles of aiding and abetting liability and of conspiracy liability. Second, you have asked whether the “knowingly” element of section 1320d-6 requires only proof of knowledge of the facts that constitute the offense or whether this element also requires proof of knowledge that the conduct was contrary to the statute or regulations. We conclude that “knowingly” refers only to knowledge of the facts that constitute the offense. 1 1 In reaching the conclusions discussed below, we have considered the views expressed in your submissions concerning the questions you have asked. See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from Paul B. Murphy, Associate Deputy Attorney General, Re: Request for Office of Legal Counsel Opinion on the Scope of the Criminal Medical Records Privacy Statute, 42 U.S.C. § 1320d-6 (Jan. 16, 2004); Letter for Jack L. Goldsmith III, Assistant 76 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 I. Congress enacted the Administrative Simplification provisions of HIPAA to improve “the efficiency and effectiveness of the health care system” by providing for the “establishment of standards and requirements for the electronic transmission of certain health information.” 42 U.S.C. § 1320d note (2000). These provisions added a new “Part C: Administrative Simplification” to title XI of the Social Security Act and have been codified at 42 U.S.C. §§ 1320d–1320d-8 (2000). Part C directs the Secretary of the Department of Health and Human Services (“HHS”) to “adopt standards for transactions, and data elements for such transactions, to enable health information to be exchanged electronically.” Id. § 1320d-2(a)(1); see also id. § 1320d-2(b)(1) (requiring the Secretary to adopt standards concerning unique health identifiers); id. § 1320d-2(c)(1) (same with respect to code sets); id. § 1320d-2(d)(1) (same with respect to security); id. § 1320d-2(e)(1) (same with respect to electronic signatures); id. § 1320d-2(f) (same with respect to transfer of information among health plans). Various provisions of this part further specify the standards to be adopted, the factors the Secretary must consider, the procedures for promulgating the standards, and the timetable for their adoption. Id. §§ 1320d-1–1320d-3. Pursuant to this authority, the Secretary has adopted standards and specifications for implementing them. See 45 C.F.R. pts. 160–164 (2004). Attorney General, Office of Legal Counsel, from Alex M. Azar II, General Counsel, Department of Health and Human Services, Re: Request by the Office of Legal Counsel for HHS Views on 42 U.S.C. § 1320d-6 (Mar. 18, 2004); Memorandum for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from Christopher A. Wray, Assistant Attorney General, Criminal Division, Re: Criminal Division Position on the Scope of the Criminal Medical Records Privacy Statute, 42 U.S.C. § 1320d-6 (May 27, 2004) (attaching Memorandum for File, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: CRM response to HHS-OGC Letter (May 20, 2004)); Letter for Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, from Alex M. Azar II, General Counsel, Department of Health and Human Services (Aug. 6, 2004); E-mail for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: 42 U.S.C. 1320d-6 (Nov. 15, 2004) (with attachment); Letter for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services (Dec. 21, 2004); Letter for John C. Demers, AttorneyAdviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services, Re: Scope of Enforcement Under 42 U.S.C. § 1320d-6; Draft Opinion of December 17, 2004—Request for Comments (Dec. 23, 2004); Memorandum for File, from Ian C. Smith DeWaal, Senior Counsel, Criminal Division, Re: Comments on the Revised OLC Draft Opinion on the HIPAA Criminal Medical Privacy Statute (transmitted Feb. 18, 2005); Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from John McKay, United States Attorney for the Western District of Washington, Re: Scope of Criminal Prosecutions under HIPAA (Mar. 17, 2005); Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Michael Sullivan, United States Attorney for the District of Massachusetts, Re: Scope of Criminal Prosecutions under HIPAA (Mar. 20, 2005); Letter for John C. Demers, Attorney-Adviser, Office of Legal Counsel, from Paula M. Stannard, Deputy General Counsel, Department of Health and Human Services, Re: Scope of 42 U.S.C. § 1320d-6 (May 5, 2005). We appreciate the thoroughness and thoughtfulness of these submissions. 77 Opinions of the Office of Legal Counsel in Volume 29 Section 1320d-1 specifies the persons to whom the standards apply: Any standard adopted under this part shall apply, in whole and in part, to the following persons: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction referred to in section 1320d-2(a)(1) of this title. See also 45 C.F.R. § 160.102(a) (with respect to general administrative requirements, “[e]xcept as otherwise provided, the standards, requirements, and implementation specifications adopted under this subchapter apply to” the entities listed in section 1320d-1); id. § 162.100 (same with respect to additional administrative requirements); id. § 164.104 (same with respect to security and privacy regulations). The regulations refer to each of these three groups of persons as a “covered entity.” Id. § 160.103. To this list of persons to whom the standards apply, Congress later added Medicare prescription drug card sponsors. Medicare Prescription Drug, Improvement and Modernization Act of 2003, Pub. L. No. 108173, § 101(a)(2), 117 Stat. 2071, 2144 (“For purposes of the program under this section, the operations of an endorsed program are covered functions and a prescription drug card sponsor is a covered entity for purposes of applying part C of title XI and all regulatory provisions promulgated thereunder. . . .”) (codified at 42 U.S.C. § 1395w-141(h)(6)(A) (Supp. III 2004)). Various statutes and regulations define these four categories of covered entities. A “prescription drug card sponsor” is “any nongovernmental entity that the Secretary [of HHS] determines to be appropriate to offer an endorsed discount card program” including “a pharmaceutical benefit management company” and “an insurer.” 42 U.S.C. § 1395w-141(h)(1)(A)(i), (iii) (Supp. III 2004). A “health plan” is “an individual or group plan that provides, or pays the cost of, medical care.” Id. § 1320d(5) (2000). A “health care clearinghouse” is an “entity that processes or facilitates the processing of nonstandard data elements of health information into standard data elements.” Id. § 1320d(2). Finally, a “health care provider” is any “person furnishing health care services or supplies,” including a “provider of services” and a “provider of medical or other health services.” Id. § 1320d(3). These latter two terms are further defined in 42 U.S.C. § 1395x (2000). A “provider of services” is a “hospital, critical access hospital, skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, [or] hospice program . . . .” Id. § 1395x(u). And a “provider of medical and other health services” is any person who provides any of a long list of such services, including “physicians’ services,” “services and supplies . . . furnished as 78 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 an incident to a physician’s professional service, of kinds which are commonly furnished in physicians’ offices and are commonly either rendered without charge or included in the physicians’ bills,” “outpatient physical therapy services,” “qualified psychologist services,” “clinical social worker services,” and certain services “performed by a nurse practitioner or clinical nurse specialist.” Id. § 1395x(s). These health care providers only qualify as covered entities if they “transmit[] any health information in electronic form in connection with” certain transactions described in section 1320d-2. Id. § 1320d-1(a)(3). The regulations further define the covered entities. See 45 C.F.R. § 160.103. These covered entities must comply with the regulations promulgated pursuant to Part C. Section 1320d-4 requires compliance with the regulations within a certain time period by “each person to whom the standard or implementation specification [adopted or established under sections 1320d-1 and 1320d-2] applies.” 42 U.S.C. § 1320d-4(b). Failure to comply with the regulations may render the covered entity either civilly or criminally liable. The statute grants to the Secretary of HHS the authority for civil enforcement of the standards. Section 1320d-5(a) states, “Except as provided in subsection (b) of this section, the Secretary shall impose on any person who violates a provision of this part a penalty of not more than $100 for each such violation . . . .” Id. § 1320d-5(a)(1). Subsection (b) provides for three exceptions. First, a civil “penalty may not be imposed . . . with respect to an act if the act constitutes an offense punishable under” the criminal enforcement provision. Id. § 1320d5(b)(1). Second, a civil “penalty may not be imposed . . . with respect to a provision of this part if it is established to the satisfaction of the Secretary that the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision.” Id. § 1320d5(b)(2). Third, a civil “penalty may not be imposed . . . if the failure to comply was due to reasonable cause and not to willful neglect; and the failure to comply is corrected” within a specified period of time. Id. § 1320d-5(b)(3). The statute prescribes criminal sanctions only for those violations of the standards that involve the disclosure of “unique health identifiers,” id. § 1320d-6(a), or of “individually identifiable health information,” id., that is, that subset of health information that, inter alia, “identifies the individual” or “with respect to which there is a reasonable basis to believe that the information can be used to identify the individual,” id. § 1320d(6). More specifically, section 1320d-6(a) provides: A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or 79 Opinions of the Office of Legal Counsel in Volume 29 (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. Subsection (b) sets forth a tiered penalty scheme. A violation of subsection (a) is punishable generally as a misdemeanor by a fine of not more than $50,000 and/or imprisonment for not more than one year. Id. § 1320d-6(b)(1). Certain aggravating circumstances may make the offense a felony. Subsection (b)(2) provides for a maximum penalty of a $100,000 fine and/or five-year imprisonment for violations committed under false pretenses. Id. § 1320d-6(b)(2). And subsection (b)(3) reserves the statute’s highest penalties—a fine of not more than $250,000 and/or imprisonment of not more than ten years—for those offenses committed “with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm.” Id. § 1320d-6(b)(3). II. A. We address first which persons may be prosecuted under the criminal enforcement provision, section 1320d-6. Specifically, we address whether section 1320d-6 renders liable only covered entities or whether the provision applies to any person who does an act described in that provision, including, in particular, a person who obtains protected health information in a manner that causes a covered entity to violate the statute or regulations. We conclude that an analysis of liability under section 1320d-6 must begin with covered entities, the only persons to whom the standards apply. If the covered entity is not an individual, general principles of corporate criminal liability will determine the entity’s liability and that of individuals within the entity, including directors, officers, and employees. Finally, certain conduct of these individuals and that of other persons outside the covered entity, including of recipients of protected information, may be prosecuted in accordance with principles of aiding and abetting liability and of conspiracy liability. We begin with the language of the statute. See Liparota v. United States, 471 U.S. 419, 424 (1985) (“The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely the creatures of statute.”). Section 1320d-6(a) states that: A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; 80 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. Because Congress enacted the Administrative Simplification provisions for the express purpose of facilitating the use of health identifiers and the acquisition and disclosure of health information, an act listed in subsections (a)(1) to (a)(3) must be done “in violation of this part” in order to constitute a criminal offense. The phrase “this part” refers to “Part C—Administrative Simplification,” codified at sections 1320d to 1320d-8. Section 1320d-1(a) makes clear that the standards promulgated under Part C apply only to covered entities: “Applicability. Any standard adopted under this part shall apply, in whole or in part, to the following persons: (1) A health plan. (2) A health care clearinghouse. (3) [Certain] health care provider[s] . . . .” Id. § 1320d-1(a); see also 45 C.F.R. § 160.102(a); id. § 162.100; id. § 164.104; Exec. Order No. 13,181, 65 Fed. Reg. 81,321 (Dec. 20, 2000), reprinted in 42 U.S.C. § 1320d-2 note (“HIPAA applies only to ‘covered entities,’ such as health care plans, providers, and clearinghouses. HIPAA regulations therefore do not apply to other organizations and individuals that gain access to protected health information . . . .”). Congress expanded this list to include Medicare prescription drug card sponsors “for purposes of applying part C[’s]” Administrative Simplification provisions. 42 U.S.C. § 1395w-141(h)(6)(A). And these provisions require only “each person to whom the standard or implementation specification applies”—i.e., the covered entities—to comply with it. Id. § 1320d-4(b). Because Part C makes the standards applicable only to covered entities and because it mandates compliance only by covered entities, only a covered entity may do one of the three listed acts “in violation of this part.” Other persons cannot violate Part C directly because the part simply does not apply to them. When the covered entity is not an individual, principles of corporate criminal liability discussed infra will determine when a covered entity has violated Part C and when these violations can be attributed to individuals in the entity. 2 That the statute criminalizes the “obtain[ing]” of individually identifiable health information in violation of Part C, id. § 1320d-6(a)(2), in addition to its disclosure, does not convince us that our reading of section 1320d-6 according to its plain terms is incorrect. It could be argued that, by including a distinct prohibition on obtaining health information, the law was intended to reach the acquisition of health information by a person who is not a covered entity but who “obtains” it 2 We express no opinion in this memorandum as to whether any particular person or entity may qualify as a covered entity for purposes of liability under sections 1320d-5 or 1320d-6. 81 Opinions of the Office of Legal Counsel in Volume 29 from such an entity in a manner that causes the entity to violate Part C. Id. Further examining the statute and the regulations, however, reveals that the inclusion of section 1320d-6(a)(2) merely reflects the fact that the statute and the regulations limit the acquisition, as well as the disclosure and use, of information by covered entities. Those sections of the statute authorizing the Secretary of HHS to promulgate regulations speak broadly of adopting standards, inter alia, “for transactions,” “providing for a standard unique health identifier,” and concerning “security.” Id. § 1320d-2(a)(1)(A), (b)(1), (d). They do not speak only of regulations governing the “use” and “disclosure” of information; the language used in these provisions easily encompasses the acquisition of information. 3 Pursuant to this authority, the Secretary has promulgated regulations governing the acquisition of certain information by a covered entity. See, e.g., 45 C.F.R. § 164.500(b)(1) (“When a health care clearinghouse creates or receives protected health information . . . .”) (emphasis added); id. § 164.502(b)(1) (“When using or disclosing protected health information or when requesting protected health information from another covered entity . . . .”) (emphasis added); id. § 164.514(d)(4)(i) (“A covered entity must limit any request for protected health information to that which is reasonably necessary . . . .”) (emphasis added). Failure to comply with these regulations may render a covered entity liable for “obtain[ing] individually identifiable health information” “in violation of this part.” 42 U.S.C. § 1320d-6(a)(2). 4 The difference between the language used in the civil enforcement provision and that used in the criminal enforcement provision does not support a broader reading of section 1320d-6. The civil enforcement provision makes liable “any 3 The only statutory section cast in terms of “use” and “disclosure” is the requirement that the Secretary submit to Congress “recommendations on standards with respect to the privacy of individually identifiable health information . . . address[ing] at least . . . the uses and disclosures of such information.” Id. § 1320d-2 note. But as discussed above, this quoted language is not found in the main provisions of HIPAA that grant the Secretary authority to promulgate regulations; those provisions use broader terminology that easily includes the authority to regulate the acquisition of information. See id. § 1320d-2. Instead, this section solicited recommendations for further legislation concerning health privacy, facilitated congressional oversight of the privacy rules the Secretary developed, and required the Secretary to issue such rules if Congress did not act on the recommendations within a certain time period; it is not a restriction of the authority given elsewhere in the statute. See infra note 12. And on its face this provision does not purport to describe the extent of the Secretary’s authority, as it requires the privacy recommendations to address “at least” the “uses” and “disclosures” of covered information. Id. § 1320d-2 note (emphasis added); see also id. (same with respect to the privacy regulations). Finally, a rule “address[ing]” the “disclosure” of information may well regulate the acquisition of information by a covered entity because obtaining information generally involves the “disclosure” of it by another person. The provision’s use of the noun “disclosure,” therefore, does not help to answer the question before us. 4 Nor does the inclusion of “causes to be used” as well as “use” in section 1320d-6(a)(1) compel us to conclude—contrary to the plain language of the statute—that the provision renders liable entities that are not covered by the regulations but that “cause” a covered entity to “use” unique health identifiers in violation of the part. This language is better read to cover those instances in which a covered entity causes, in violation of the part, another person to use a unique health identifier, but where the covered entity itself did not use the identifier in an unauthorized manner. 82 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 person who violates a provision of this part.” Id. § 1320d-5(a)(1). The criminal enforcement provision makes it a crime to do certain acts “knowingly and in violation of this part.” Id. § 1320d-6(a). To be sure, the statute must be read as a whole and variations in the language of closely related provisions should be given effect if possible. See Bryan v. United States, 524 U.S. 184, 191–93 (1998) (interpreting the requirement that an act be done “willfully” in one subsection of the statute by reference to the “knowingly” requirement contained in other subsections of the same statute). Here, however, the difference in phrasing used in the two provisions does not constitute a basis for concluding that section 1320d-6 reaches persons who are not, or are not part of, a covered entity. Section 1320d-6’s use of “in violation of,” as opposed to “who violates,” reflects only the difference in the scope of the conduct proscribed by the two sections. Section 1320d-5 is phrased as it is—“any person who violates a provision of this part”—because a violation of any of the standards subjects the violator to civil penalties. 42 U.S.C. § 1320d-5(a)(1). In contrast, criminal punishment is restricted to those violations of the standards—specified in subsections (a)(1) to (a)(3) of section 1320d-6(a)— that involve the improper use, acquisition, or disclosure of individually identifiable health information or unique health identifiers. Section 1320d-6(a) makes liable a person who “uses or causes to be used,” “obtains,” or “discloses” such health information. Having described the prohibited acts using present tense verbs, the provision could not retain the “violates this part” formulation; instead, it uses “in violation of this part” to make clear that only those uses, acquisitions, and disclosures in a manner contrary to the regulations are illegal. The difference in language between section 1320d-5 and section 1320d-6 is thus best understood as nothing more than a grammatical accommodation resulting from the need to describe the acts for which section 1320d-6 prescribes criminal liability. 5 Although we conclude that Part C applies only to covered entities, we do not read the term “person” at the beginning of section 1320d-6 to mean “covered entity.” Such a reading would not only be contrary to the language of that provision but also create tension with other parts of the statute that appear to use the term broadly, see, e.g., id. § 1320d-6(a)(3) (prohibiting “disclos[ures] to another person”), and with the Dictionary Act, codified at 1 U.S.C. § 1 (2000), which sets forth a presumptively broad definition of person wherever the term is 5 At most, the difference in phrasing between section 1320d-5 and section 1320d-6 would render the statute ambiguous. If that were the case, it might be appropriate to apply the rule of lenity and conclude that the statute is best read not to subject to direct prosecution persons other than covered entities and those rendered liable by general principles of corporate criminal liability. See Rewis v. United States, 401 U.S. 808, 812 (1971) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”). But as the language of the statute unambiguously compels the same result, we do not apply the rule of lenity here. See Chapman v. United States, 500 U.S. 453, 463 (1991) (“The rule of lenity . . . is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act . . . .”) (citation and quotation omitted). 83 Opinions of the Office of Legal Counsel in Volume 29 used in the United States Code, 6 a definition presumptively applicable here because the defined terms specific to Part C do not include the term “person.” See 42 U.S.C. § 1320d. We conclude only that the phrase “in violation of this part” restricts the universe of persons who may be prosecuted directly. Section 1320d-6 provides criminal penalties for “person[s]” who perform the listed acts “knowingly” and “in violation of this part.” Id. § 1320d-6. The “in violation of this part” limitation on the scope of liability—like the “knowingly” requirement—is distinct from the definition of “person.” It describes that subset of persons who may be held liable, provided that the other elements of the offense are also satisfied. Under this reading of the statute, section 1320d-6(a)(3) continues to make “covered entities” liable for disclosure to any “person.” We have considered other laws using the phrase “in violation of.” None of these laws supports the view that, as used in 42 U.S.C. § 1320d-6, the phrase should be read more expansively than we conclude. For instance, several of these laws apply to the public generally, and, accordingly, do not shed light on whether section 1320d-6 allows direct prosecutions of persons other than those to whom the substantive requirements of HIPAA’s Part C apply. See, e.g., 18 U.S.C. § 547 (2000) (“Whoever receives or deposits merchandise in any building upon the boundary line between the United States and any foreign country, or carries merchandise through the same, in violation of law . . . .”) (emphasis added); 18 U.S.C. § 1590 (2000) (“Whoever knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter . . . .”) (emphasis added). And the phrasing of other laws makes it clear that “in violation of” describes an item involved in the prohibited act, as opposed to the act itself. For instance, 18 U.S.C. § 2113(c) (2000) penalizes “[w]hoever receives . . . property . . . which has been taken . . . in violation of subsection (b) . . . .” Id. In this case, the placement of the phrase “in violation of” following the word “which” makes plain that the phrase describes only the property, a reading confirmed by the provision’s use of the passive “has been taken.” Id.; see also 18 U.S.C. § 1170(b) (2000) (“Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act . . . .”) (emphasis added). In contrast, the phrase “in violation of” in section 1320d-6 does not modify the type of health care information involved in the offense; rather, it relates directly to the acts prohibited by the provision (i.e., “uses or causes to be used,” “obtains,” or “discloses”). Finally, we have reviewed the cases interpreting these and other potentially analogous provisions and have found none that would 6 “In determining the meaning of any Act of Congress, unless the context indicates otherwise— the word[] person[] . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. 84 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 cause us to read section 1320d-6 in any way other than in accordance with its plain meaning. 7 We conclude, therefore, that an assessment of liability under section 1320d-6 must begin with covered entities. The statute and regulations determine which individuals and entities qualify as a “covered entity.” See 42 U.S.C. § 1320d; id. § 1395w-141(h)(1); id. § 1395x; 45 C.F.R. § 160.103. 8 A health care provider is any “person furnishing health care services or supplies,” and will be either an individual or an entity. 42 U.S.C. § 1320d(3); see also id. § 1395x. In contrast, a “health care clearinghouse,” “health plan,” and Medicare “prescription drug card sponsor” will virtually never be an individual. See id. § 1320d(2) & (5); id. § 1395w-141(h)(1)(A). When the covered entity is not an individual, principles of corporate criminal liability will determine the entity’s liability and the potential liability of particular individuals who act for the entity. Although we do not elaborate these principles here, in general, the conduct of an entity’s agents may be imputed to the entity when the agents act within the scope of their employment, and the criminal intent of agents may be imputed to the entity when the agents act on its behalf. See Kathleen F. Brickley, Corporate Criminal Liability §§ 3–4 (2d ed. 1992). In addition, we recognize that, at least in limited circumstances, the criminal liability of the entity has been attributed to individuals in managerial roles, including, at times, to individuals with no direct involvement in the offense. See id. § 5. 9 Consistent with these general principles, it may be that such individuals in particular cases may be prosecuted directly under section 1320d-6. 7 Consistent with our reading of 42 U.S.C. § 1320d-6, the Sixth Circuit has held that the Video Privacy Protection Act’s (“VPPA”) creation of a cause of action for “[a]ny person aggrieved by any act of a person in violation of this section,” 18 U.S.C. § 2710(c)(1) (2000), allows suits against only video tape service providers and not against all persons. See Daniel v. Cantrell, 375 F.3d 377, 382–84 (6th Cir. 2004). In that case, the plaintiff had sued several persons who were not video tape service providers, alleging that they had violated the privacy right in his video rental records given him by the statute. Similar to section 1320d-6, the VPPA cause of action provision refers to acts of “a person in violation of this section.” 18 U.S.C. § 2710(c)(1). The court reasoned that because the operative provision of the VPPA provides that “[a] video tape service provider who knowingly discloses . . . personally identifiable information . . . shall be liable,” id. § 2710(b), only such providers could be “in violation of” the statute. Daniel, 375 F.3d at 383–84. Accordingly, despite the use of the broad term “person” in section 2710(c)(1), only video tape service providers may be sued under that section. 8 The statute and regulations do not limit the actions for which a covered entity may be held liable to those activities that render the person a covered entity. Once a person is a covered entity, he must “comply with [an applicable] standard or specification,” 42 U.S.C. § 1320d-4(b)(1)(A) and “may not use or disclose protected health information, except as permitted or required by” the regulations, 45 C.F.R. § 164.502. Thus, a physician who is a covered entity in part because he transmits certain health care information electronically must not disclose such protected information, either electronically or otherwise, except as authorized by the regulations. And a physician who is a covered entity must comply with the standards with respect to protected information concerning both his own patients and those patients he is not treating. 9 “Many regulatory statutes . . . make corporate officials vulnerable to prosecution for criminal conduct in which they did not personally participate and about which they had no personal knowledge.” Id. § 5.01; see also United States v. Jorgensen, 144 F.3d 550, 559–60 (8th Cir. 1998) (applying the 85 Opinions of the Office of Legal Counsel in Volume 29 Other conduct that may not be prosecuted under section 1320d-6 directly may be prosecuted according to principles either of aiding and abetting liability or of conspiracy liability. 10 The aiding and abetting statute renders “punishable as a principal” anyone who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission” and anyone who “willfully causes an act to be done which if directly performed by him or another would be an offense against the United States.” 18 U.S.C. § 2 (2000). And the conspiracy statute prescribes punishment “if two or more persons conspire . . . to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy.” 18 U.S.C. § 371 (2000). 11 Further discussion of corporate criminal liability, aiding and abetting liability, and conspiracy liability in the absence of a specific factual context would be unfruitful, particularly because the contours of these legal principles may vary by jurisdiction. Accordingly, we leave the scope of criminal liability under these principles for consideration in the ordinary course of prosecutions. 12 B. We address next whether the “knowingly” element of the offense set forth in 42 U.S.C. § 1320d-6 requires the government to prove only knowledge of the facts that constitute the offense or whether this element also requires proof that the defendant knew that the act violated the law. We conclude that the “knowingly” principle that “a corporate officer who is in a responsible relationship to an activity within a company that violates provisions of . . . federal . . . laws . . . can be held criminally responsible even though that officer did not personally engage in that activity” in the context of a statute that required proof of “intent to defraud” when the defendant possessed the requisite intent) (quotations and citations omitted). 10 Depending on the specific facts and circumstances, such conduct may also be punishable under other federal laws. See, e.g., 18 U.S.C. § 1028 (2000 & Supp. III 2004) (identity theft); id. § 1030 (2000 & Supp. III 2004) (fraudulent access of a computer). 11 For instance, an individual who is not a covered entity who aids or conspires with a covered entity in the use of protected health information in a manner not authorized by the regulations (e.g., to establish a fraudulent billing scheme) could be charged under section 2 or section 371 of title 18. 12 We note that conduct punishable under section 1320d-6 may also be punishable under state law and render a person liable in tort. See generally Peter A. Winn, Confidentiality in Cyberspace: The HIPAA Privacy Rules and the Common Law, 33 Rutgers L.J. 617 (2002). When Congress enacted HIPAA, it was concerned that state statutory and common law provided inadequate and uneven protection for health information. Congress sought to create a nationwide floor for such protection. See Preamble, Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule Preamble”), 65 Fed. Reg. 82,462, 82,463–64 (Dec. 28, 2000). Thus, HIPAA’s privacy rules preempt only those contrary state laws that are less stringent than the applicable federal privacy rules. See 42 U.S.C. § 1320d-7(a)(2)(B); 45 C.F.R. § 160.203(b) (“A standard, requirement, or implementation specification . . . that is contrary to a provision of State law preempts the provision of State law . . . except if . . . [t]he provision of State law relates to the privacy of individually identifiable health information and is more stringent than” the federal standard.). All other criminal and civil liability for breaches of a duty concerning the privacy of health information that existed prior to HIPAA remains after its passage. 86 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 element is best read, consistent with its ordinary meaning, to require only proof of knowledge of the facts that constitute the offense. We begin again with the text of 42 U.S.C. § 1320d-6(a). See Liparota, 471 U.S. at 424. A person who knowingly and in violation of this part— (1) uses or causes to be used a unique health identifier; (2) obtains individually identifiable health information relating to an individual; or (3) discloses individually identifiable health information to another person, shall be punished as provided in subsection (b) of this section. 42 U.S.C. § 1320d-6(a). A plain reading of the text indicates that a person need not know that commission of an act described in subsections (a)(1) to (a)(3) violates the law in order to satisfy the “knowingly” element of the offense. Section 1320d-6 makes the requirements that the act be done “knowingly” and that it be done “in violation of this part” two distinct requirements. These two elements do not modify each other; rather, they independently modify “uses or causes to be used,” “obtains,” and “discloses.” For example, defendants will be guilty of an offense if they both “knowingly” “disclose[] individually identifiable health information” and they “in violation of this part” “disclose[] individually identifiable health information.” The view that the statute requires proof of knowledge of the law effectively reads “knowingly” to refer to the “violation of this part.” But this reading is contrary to the plain language of the statute, which sets forth these terms as two separate elements each independently modifying the third element, i.e., one of the listed acts. Accordingly, to incur criminal liability, a defendant need have knowledge only of those facts that constitute the offense. Our reading of the “knowingly” element of the offense comports with the usual understanding of the term. The Supreme Court has stated that “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Bryan, 524 U.S. at 193 (footnote omitted) (“[T]he term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law.”). As set forth above, the text of section 1320d-6 does not “dictate[] a different result.” Bryan, 524 U.S. at 193. In fact, its text dictates an interpretation consistent with the ordinary understanding of “knowingly” as referring only to “knowledge of the facts that constitute the offense.” Id. The plain meaning of the “knowingly” element of section 1320d-6 must control, “at least where the disposition required by the text is not absurd.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). We 87 Opinions of the Office of Legal Counsel in Volume 29 consider whether our reading of the criminal provision is absurd in light of the possible exception to civil liability for reasonable ignorance of the law. Sections 1320d-5 and 1320d-6 operate in a complementary fashion, covering mutually exclusive conduct. See 42 U.S.C § 1320d-5(b)(1) (excepting from civil penalties an act that “constitutes an offense punishable under section 1320d-6 of this title.”). 13 The civil enforcement section provides, “A penalty may not be imposed . . . if . . . the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision.” Id. § 1320d-5(b)(2). Section 1320d-5 therefore may be read to premise civil liability on knowledge that the act in question violated the applicable standard, not just on knowledge that the particular act occurred. 14 If civil sanctions (of fines up to $100) may be avoided by establishing reasonable ignorance of the law, it might at first blush appear to be an absurd result to conclude that the significantly more serious criminal punishments (of fines up to $250,000 and imprisonment of up to ten years) may not be similarly excused. The absurd results canon of construction is “rarely invoke[d] . . . to override unambiguous legislation.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459 (2002); Public Citizen v. Dep’t of Justice, 491 U.S. 440, 470–71 (1989) (Kennedy, J., concurring) (noting that the canon is limited “to situations where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result, and where the alleged absurdity is so clear as to be obvious to most anyone.”). Applying the usual definition of “knowingly” here does not yield an absurd result, and certainly not one so absurd that it would cause us to read the statute contrary to its plain meaning. The argument that the statute should not be read so as to impose criminal punishment on the basis of a lesser degree of intent than that required for civil sanction would be more compelling if sections 1320d-5 and 1320d-6 covered the same acts. But they do not. See 42 U.S.C. § 1320d-5(b)(1). Civil sanctions may be imposed for violations of a wide variety of regulations. For these violations, the statute provides a maximum $100 fine and sets forth certain exceptions to liability. Id. § 1320d-5 (“General penalty for failure to comply with requirements and standards”). 15 In contrast, of all the possible violations of the regulations, section 13 Thus, the Secretary may not impose civil sanctions for the commission of an act that subjects a person to the possibility of criminal prosecution, regardless of whether the person is in fact punished criminally. 14 This is not the only possible reading of section 1320d-5(b)(2). This paragraph is headed “Noncompliance not discovered,” and the language of the provision—“the person liable for the penalty did not know, and by exercising reasonable diligence would not have known, that such person violated the provision”—could be read to refer to ignorance of the facts that constitute the violation, rather than ignorance of the law. But to answer the questions you have asked, we need not decide which reading is better. 15 In addition to the exception noted above, section 1320d-5(b) contains another defense to liability where “(i) the failure to comply was due to reasonable cause and not to willful neglect; and (ii) the failure to comply is corrected during the 30-day period beginning on the first date the person liable for 88 Scope of Criminal Enforcement Under 42 U.S.C. § 1320d-6 1320d-6 carves out a limited set and subjects them to criminal punishment. Such punishment is reserved for violations involving “unique health identifiers” and “individually identifiable health information.” Id. § 1320d-6 (“Wrongful disclosure of individually identifiable health information”). Thus, the statute reflects a heightened concern for violations that intrude upon the medical privacy of individuals. In light of this concern, there is nothing obviously absurd about the statute’s allowing a defense of reasonable ignorance of the law for those regulatory violations subject to civil penalty, but withholding this defense with respect to those violations that threaten the privacy of individuals. Accordingly, even reading section 1320d-6 in light of section 1320d-5(b)’s exception to civil liability for reasonable ignorance of the law gives us no reason to doubt that the plain and ordinary meaning of the “knowingly” element of section 1320d-6 is the correct one. Nor is it proper to apply here the exception to the usual meaning of “knowingly” exemplified by Liparota. See id., 471 U.S. at 424–28. Liparota is the case cited by the Supreme Court in Bryan as an example of the exception to the rule—when “the text of the statute dictates a different result”—that “knowingly” refers to the facts that constitute the offense and not to the law. Bryan, 524 U.S. at 193 & n.15. In Liparota, the Supreme Court held that a statute forbidding fraudulent use of food stamps required proof of knowledge that the use was unauthorized. 471 U.S. at 433. The statute in that case read: “whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter” shall be guilty of a criminal offense. Id. at 420–21 n.1 (quoting 7 U.S.C. § 2024(b)(1)). This language is at least ambiguous; “knowingly” may modify, for example, either only the verb “uses” or it may modify the entire verbal phrase “uses . . . in any manner not authorized.” Id.; see id. at 424 (The “interpretations proffered by both parties accord with congressional intent . . . . [T]he words themselves provide little guidance. Either interpretation would accord with ordinary usage.”); id. at 424 n.7 (referring to the statutory language and noting that “[o]ne treatise has aptly summed up the ambiguity in an analogous situation”) (emphasis added). But see Bryan, 524 U.S. at 193 n.15 (citations omitted) (in Liparota, “we concluded that both the term ‘knowing’ . . . and the term ‘knowingly’ . . . literally referred to knowledge of the law as well as knowledge of the relevant facts”). The Supreme Court then considered the presumption that criminal statutes contain a mens rea element, 16 applied the rule of lenity, and rested its interpretation, in large part, on the penalty knew, or by exercising reasonable diligence would have known, that the failure to comply occurred.” Id. § 1320d-5(b)(3). 16 “[C]riminal offenses requiring no mens rea have a ‘generally disfavored status.’” Liparota, 471 U.S. at 426 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978)); Staples v. United States, 511 U.S. 600, 606 (1994) (“[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.”). 89 Opinions of the Office of Legal Counsel in Volume 29 the concern that the contrary reading would “criminalize a broad range of apparently innocent conduct.” Liparota, 471 U.S. at 426–27. Here, the “knowingly” element of section 1320d-6 is not ambiguous; thus, it would be inappropriate to resort to the rule of lenity. See Chapman v. United States, 500 U.S. 453, 463 (1991) (“The rule of lenity . . . is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act . . . .”) (citation and quotation omitted). Moreover, our interpretation of “knowingly” does not dispense with the mens rea requirement of section 1320d-6 and create a strict liability offense; satisfaction of the “knowingly” element will still require proof that the defendant knew the facts that constitute the offense. See Staples v. United States, 511 U.S. 600, 622 n.3 (1994) (Ginsburg, J., concurring) (“The mens rea presumption requires knowledge only of the facts that make the defendant’s conduct illegal, lest it conflict with the related presumption, deeply rooted in the American legal system, that, ordinarily, ignorance of the law or a mistake of law is no defense to criminal prosecution.”) (quotations and citations omitted). Finally, the concern expressed in Liparota about criminalizing a broad swath of seemingly innocent conduct is less present here. The statute in Liparota criminalized the unauthorized use of food stamps by any participant in the program, as well as by any person who might come in possession of these stamps. 471 U.S. at 426–27. In contrast, section 1320d-6, as we conclude above, applies directly to covered entities. These covered entities—health plans, health care clearinghouses, certain health care providers, and Medicare prescription drug card sponsors—are likely well aware that the health care business they conduct is heavily regulated by HIPAA and other laws. To the extent that some concern remains, it is insufficient to override the plain meaning of the statute. Accordingly, Liparota provides no support for giving “knowingly” in section 1320d-6 a meaning different from its usual understanding as referring only to knowledge of the facts that constitute the offense. III. For the foregoing reasons, we conclude that covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6 and that the “knowingly” element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense. STEVEN G. BRADBURY Principal Deputy Assistant Attorney General Office of Legal Counsel 90

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Waiver of the Application of Conflict of Interest Laws for Members of the President’s Commission on Strategic Forces M em bers o f the P resident’s commission on Strategic Forces are special government employees for purposes o f the conflict of interest laws, based on a Departm ent of Defense determination. U nder 18 U.S.C. § 208(a), such em ployees may not participate without a waiver in any particular m atter in w hich they or th eir employers have a financial interest. W aivers o f the application o f § 208(a) for members o f the Commission may be granted by the C ounsel to the President. This authority is based in part on 3 C.F.R. § 100.735-32, by which the President delegated to the Counsel his authority to grant waivers under 18 U.S.C. § 208(b)(1) for “Presidential appointees to comm ittees, boards, commissions, or sim ilar groups established by the President.” The statutory standard for the grant o f w aivers clearly anticipates the exercise of discretion by the appointing official. Factors suggested by § 208(b)(1) include the nature and magnitude of the em ployee’s financial interest, the nature of the anticipated services to the government, and the likelihood that integrity of those services may be compromised. Other non-statutory factors m ight be considered with caution, such as the ability to reduce conflict by public disclosure o f the em ployee’s interest, the governm ent’s need for the employee’s services, and the agency’s general policy or practice in granting waivers. January 19, 1983 M em orandum O p in io n for the Depa rtm en t of G eneral C ounsel, D efen se You have asked us to advise you concerning possible waivers of the applica­ tion of a conflict of interest statute, 18 U.S.C. § 208, for particular members of the President’s Commission on Strategic Forces. We have agreed to assist you (1) by identifying the appropriate official(s) to consider and, if appropriate, approve such waivers; and (2) by describing some of the factors that may be considered by that official in applying the waiver standard. We understand that your inquiry was prompted by the case of a potential member of the Commis­ sion who has an ongoing consulting arrangement with one of the primary contractors for the MX missile project. We understand from our discussions and the materials you have provided that the Department of Defense has determined that members of this advisory committee are special government employees for purposes of the conflict of interest laws. See generally 18 U.S.C. § 202; Federal Personnel Manual, Ap­ pendix C. As you know, as special government employees, the members of this advisory committee may not participate in any particular matters in which they, 10 or their employers, have a financial interest. 18 U.S.C. § 208(a). This restric­ tion on an individual employee’s activities may be waived if “the official responsible for the appointment to [the employee’s] position” determines in writing that the interest of the employee “is not so substantial as to be deemed likely to affect the integrity of the services which the government may expect” from the employee. 18 U.S.C. § 208(b)(1). Because it is anticipated that the Commission will be advising the President concerning the MX missile and its possible basing modes, the application of § 208 to this situation has been raised. I. Appropriate Official to Grant Waiver Under 18 U.S.C. § 208(b) As mentioned above, § 208(b) authorizes the “Government official respon­ sible for the appointment [of an employee] to his position” to waive the application of § 208(a) to the employee in certain circumstances. In determin­ ing which officials can exercise such power, we consider two questions: (1) which official is “responsible for the appointment” of the members of the Commission; and (2) has the official “responsible for the appointment” del­ egated his authority under this provision to any other person(s). With respect to the first question, we believe the President is the official “responsible for the appointment” of the members of the Commission. Pursu­ ant to Executive Order No. 12400, members of the Commission are “appointed or designated by the President” to membership on the Commission. There is no provision that any other official should be responsible for the appointment of any of the members to the Commission. In the process of drafting Executive Order No. 12400, members of the White House Counsel’s Office and the General Counsel’s Office of the Office of Management and consistently ex­ pressed an intent and understanding that the Commission was to be a Presiden­ tial Advisory Committee, with control over the appointment and dismissal of members of the Commission to be vested solely in the President. Accordingly, in our view, the President is the “Government official responsible for the appointment [of the members] to [their] position[s]” within the meaning of 18 U.S.C. § 208. Even though the President is the appointing “Government official” within the meaning of 18 U.S.C. § 208, he may, pursuant to 3 U.S.C. § 301, delegate his authority with respect to “any function vested in the President by law” to “the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate.” Such delegation must be in writing and published in the Federal Register. Id. In addition, the President has certain inherent authority, which is recognized but not specifically enumerated in 3 U.S.C. § 302, to delegate authority to officials who do not meet the requirements set forth in § 301. In Executive Order No. 11222, Part V, as amended, the President delegated his authority to grant waivers under 18 U.S.C. § 208(b) with respect to many Presidentially appointed officers and employees, while specifically exempting 11 from this delegation, among other persons, “Presidential appointees to commit­ tees, boards, commissions, or similar groups established by the President.” In 3 C.F.R. § 100.735-32, however, the President delegated to the Counsel to the President the authority reserved in the above provision. Although the Counsel to the President is not appointed by the President with the advice and consent of the Senate, this delegation has existed at least since 1968 and has never, to our knowledge, been challenged by Congress. While we do not need to pass on that issue for the purpose of this memorandum, the delegation of power to the Counsel to the President would appear to fall within the President’s inherent power to delegate, and thus, the President and the Counsel to the President currently appear to have authority to grant a waiver under 18 U.S.C. § 208(b) to members of the Commission with respect to their service on the Commission. An argument could be made that § 4 of Executive Order No. 12400, which created the Commission, also delegates to the Secretary of Defense the President’s authority to grant waivers under 18 U.S.C. § 208. We conclude, however, that if the President wishes the Secretary of Defense to exercise the President’s authority under § 208(b), the proper course would be to execute a new, more specific memorandum under 3 U.S.C. § 301, specifically delegating such authority to the Secretary of Defense. Section 4 of Executive Order No. 12400 delegates the “performance” of the President’s “functions” under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. app. § 1, to the Secretary of Defense. The FACA, 5 U.S.C. app. § 8, provides, inter alia, that each agency head, in this case the Secretary of Defense, “shall establish uniform administrative guidelines and management controls for advisory com­ mittees” and appoint an Advisory Committee Management Officer to “exercise control and supervision” over the committee. The FACA, however, does not specifically address conflict-of-interest problems related to members of advi­ sory committees. Thus, granting a waiver of conflicts of interest under 18 U.S.C. § 208 may not be a “function” “performed” under the Federal Advisory Committee Act. In light of the fact that the President expressly reserved to himself in Executive Order No. 11222, as amended, the authority to grant waivers under 18 U.S.C. § 208(b), it is doubtful that the delegation of authority in Executive Order No. 12400 is sufficiently specific to constitute a delegation of the Presidential waiver authority. For these reasons, if the President wishes the Secretary of Defense, rather than the Counsel to the President, to assume the authority to grant waivers for members of the Commission, we conclude that a new memorandum of delegation should be executed. In addition, if the President wishes some other official to exercise this authority, he may execute a memorandum delegating this to any official appointed by the President with the advice and consent of the Senate. See 3 U.S.C § 301. II. The Wanver Standard Section 208(b)(1) provides that waivers of the restriction of § 208(a) may be granted upon a written determination that the disqualifying interest of the 12 employee is “not so substantial as to be deemed likely to affect the integrity o f the services which the government may expect” from the employee. (Emphasis added.) This standard clearly anticipates the exercise of discretion and personal judgment by the appointing official. We have not reviewed the facts of this matter in sufficient detail to make our own judgment concerning a waiver in this case, nor would it be appropriate for us to do so inasmuch as the responsi­ bility of the Commission will relate to matters that are beyond our knowledge and expertise. The discussion that follows is intended simply to direct attention to some of the factors which are generally used to inform such judgments. The standard set forth in the statute suggests two lines of inquiry, focusing on (1) the financial interest and (2) the services of the employee. In our view, it is appropriate to consider any factors that develop either of these lines of inquiry suggested by the statute. There are numerous factors that may help to clarify the nature and magnitude of the employee’s financial interest. Certainly it is helpful to quantify the dollar amount of the interest, or its outer limits. In this case, the consulting contract presumably is worth $50,000, and possibly more if the contract is extended or additional contracts are expected. These factors might be compared with the potential member’s overall income, and with his net worth, to obtain some sense of the relative value of the consulting contract(s) to him.1The type of the financial interest may also be important. In this case, the financial interest arises from an employment relationship. While employment relationships fre­ quently create stronger and more personal ties than ordinary investment rela­ tionships, the tenure and details of this particular relationship could be signifi­ cant factors in making a waiver determination. For example, one might find it more difficult to justify a § 208(b) waiver if the potential member’s contract activities involve defense issues that will be before the Commission than if they involve giving technical advice on completely unrelated subjects. Simi­ larly, a long or frequent association with the contractor might also counsel against a waiver in this case. The employee’s anticipated services to the government should also be exam­ ined. We think that, in this regard, it is appropriate to consider both the likelihood that the integrity of the employee’s services may be compromised, and the nature and significance of the services themselves. In this case, the employee’s services will presumably involve giving advice on a subject of direct concern to a present client of his consulting firm. There appears to be little doubt that the contractor will be affected by the government’s final decision regarding the MX, but the impact of the potential member’s advice through the advisory committee may be somewhat more remote. On the other hand, one might predict that the advice would be particularly influential in light of the potential member’s background and stature. The potential value to the contractor of the potential member’s service on this advisory committee should 1 Although the value o f the consulting contract in relation the potential m em ber's annual income and overall net worth may indeed be considered, it should not overshadow the significance o f the absolute value o f the contract, which is, in our view, a far more im portant criterion in making a waiver decision. 13 also be considered. In this regard, one may want to consider the value of the MX contract to the contractor in absolute dollars and as a proportion of the company’s anticipated receipts for upcoming years. There are undoubtedly numerous other factors that might be considered. Some of these derive more justification from common sense and other disquali­ fication standards than they do from the actual text of § 208(b). See, e.g., Decisional Officials’ Participation in Rulemaking Proceedings, Administrative Conference of the United States, 1980 Report, at 51-55. See also Code of Professional Responsibility, American Bar Association (in particular Canons 4, 5 and 9). For example, public disclosure of the employee’s interest and the government’s need for the services of the particular employee are factors that could be compelling in some circumstances.2 We would also advise that some deference be given to the agency’s general policy or practice in granting waivers under § 208(b)(1). Accordingly, we are not prepared to reject all consideration of factors that do not reflect directly the statutory standard. We must urge, however, that non-statutory factors be used with caution and that the weight given to them be analyzed in light of the fact that they are not directly articulated in the statutory standard. Numerous other nonstatutory factors have been suggested for use in this case. We think that many of these factors, especially when taken in their combination, could confuse rather than clarify the inquiry. For example, the importance of the advisory committee to the government’s national security interests is a factor that can be used convincingly either to justify or deny a waiver.3 The same can be said of the temporary, short-term nature of the Commission’s work. It also can be counterproductive, in our view, to focus on the reputation for personal integrity of the employee. The integrity factor is extremely subjective. As we see it, § 208 was enacted, in large part, to elimi­ nate such subjective judgments from the disqualification process. Furthermore, we fear that a heavy or frequent reliance upon an official judgment of the employee’s personal integrity will detract from the public acceptance of the waiver process, as well as make it more difficult to deny waivers because of the possible negative implication o f a denial with respect to the integrity of the employee. Accordingly, we must counsel against a reliance upon a subjective, personal evaluation of an individual’s reputation for integrity in considering the propriety of § 208(b)(1) waivers. In the end, waiver decisions are committed to the judgment of the appointing official. Although the statutory standard should guide the exercise of that discretion, Congress has clearly left that ultimate decision in the hands of the appointing official. It is the responsibility of that official to exercise his considerable discretion soundly and in good faith, after a careful and thorough 2 In this case, public disclosure o f the p otential m em ber’s contractual interest would help to elim inate many o f the potential adverse effects o f the interest. 3 In ad dition, it should be noted that a “n ational interest" factor was suggested to Congress as a basis for gran tin g w aivers w hen § 208 was enacted, but such a test was never adopted. See C onflict o f Interest H earings on H.R. 8140 B efore th e Senate J u d ic ia ry Comm., 87th Cong., 2d Sess. 46 (1962) (testim ony of R osw ell Perkins). 14 consideration of all of the pertinent facts. We are not in a position to advise you about the pertinent facts or about the relative weight that should be assigned to the various factors discussed above. We hope this opinion will assist the decision-maker in his task, but we do not intend for it to imply any judgment on our part concerning the proper direction of that decision. The Office of Government Ethics has reviewed this opinion and has advised us that it agrees with the conclusions set forth above. Ra lph W . T arr Assistant Attorney General Office o f Legal Counsel 15

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Presidential Authority to Settle the Iranian Crisis The President has the constitutional and statutory authority to enter an executive agree­ ment with Iran which settles Am erican citizens' claims against Iran; claimants who receive less than - the stated value of their claims should not be able to recover additional compensation from the United States governm ent on the theory that the settlement constituted a taking under the Fifth Amendment. The President may, through orders issued under the International Em ergency Economic Powers A ct (IEE PA ), free currently blocked Iranian assets and effect their return to Iran, notwithstanding the existence of court orders o f attachm ent for bidding the removal o f Iranian funds from the banks holding them, by revoking the existing general license for the attachm ents under the Iranian Assets Control Regulations and licensing Iranian withdrawals from the blocked accounts. Since private banks may refuse to honor withdrawal licenses after the attachm ents are revoked for fear o f liability under state law to the attachm ent claimants, funds held by federal banking entities should be relied on as the source o f any amounts promised to be returned forthw ith to Iran. Foreign branches of Am erican banks are subject to orders issued under authority of the IE E PA and, once withdrawal licenses are issued, there should be no legal impediment to Iranian w ithdrawals from previously blocked accounts as long as previously licensed setoffs are observed. If creditors o f Iran seek to attach these accounts through actions in foreign courts, it is likely that those courts would allow their own domestic claimants a special priority. T he President may, under existing law, take several kinds o f actions to assist Iran in effecting the return of the form er Shah’s assets in the United States. These actions include blocking the assets under the IE E PA to facilitate a census and prevent their removal, undertaking to aid Iran in its litigation to recover the assets, informing the court o f our position on foreign sovereign immunity and act of state doctrines, or taking an assignment o f its claims from Iran. H ow ever, vesting the Shah’s assets in the governm ent would require new legislative authority and even then would give rise to a takings claim for just compensation by the Shah’s estate. September 16, 1980 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This responds to your request for our views concerning the Presi­ dent’s power to settle the current crisis with Iran without the enact­ ment of additional legislation. We believe that the President has the constitutional and statutory power necessary to enter an agreement with Iran settling the principal issues now outstanding, and to imple­ ment that agreement in an effective fashion. In particular, we conclude as follows. First, the President has the constitutional and statutory power to enter an executive agreement with Iran that settles American citizens’ claims and returns some blocked funds to Iran. Second, to implement such an agreement, the President may, under the Interna248 tional Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. (Supp. I 1977), license Iran to withdraw blocked funds, although the President would first have to revoke existing licenses for attach­ ments against those funds. Federal entities and private banks in the United States could then safely permit withdrawals by Iran, although the private banks may perceive sufficient risk of liability to disappointed lien claimants to refuse to recognize the validity of licenses for with­ drawals. Third, once withdrawals are licensed there will be no impedi­ ment to Iranian withdrawals from foreign branches of American banks, at least if previously licensed setoffs by those banks are left undisturbed. Fourth, a settlement agreement may provide for the United States to aid Iran in recovering the Shah’s assets in the current litigation in New York state court, although an immediate return of those assets would not be possible. Finally, all these arrangements can be structured in a way that makes successful takings claims unlikely. I. Settlement of American Claims Against Iran by Executive Agreement A. Presidential Power The authority of the President to enter executive agreements with other nations in order to settle claims has been explicitly upheld by the Supreme Court. United States v. Belmont, 301 U.S. 324, 330-31 (1937); United States v. Pink, 315 U.S. 203 (1942) (“That the President’s control of foreign relations includes the settlement of claims is indisputable.” Frankfurter, J., concurring, 315 U.S. at 240); see also Restatement (Second) of Foreign Relations Law § 213 (1965). Belmont and Pink upheld the Litvinov Assignment, by which outstanding Soviet claims were assigned to the United States by a simple exchange of letters between the President and the Soviet Foreign Minister. Both cases emphasized the Executive’s exclusive constitutional power to recognize foreign governments and to normalize diplomatic relations with them, and viewed claims settlements as necessary incidents of the Executive’s foreign relations power. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Although the President’s constitutional powers almost certainly suf­ fice to authorize an executive agreement with Iran that would take an assignment of some blocked assets and return others, support may be drawn as well from the President’s statutory power under IEEPA. That statute, which authorizes the current blocking of Iranian assets, was drafted in explicit recognition that the blocking of assets could have as a primary purpose their preservation for later claims settlement. H.R. Rep. No. 459, 95th Cong., 1st Sess. 17 (1977); S. Rep. No. 466, 95th Cong., 1st Sess. 6 (1977). Thus, IEEPA’s § 1706(a)(1) authorizes the continuation of controls after the underlying emergency has ended, where “necessary on account of claims involving such country or its 249 nationals.” The need to provide a means for orderly termination of a blocking of assets once the emergency has passed implies presidential power to resolve the plethora of claims that will invariably arise. Historical practice reflects the existence of presidential power to settle claims. While claims settlements have often been concluded by treaty or convention, historical examples abound of settlements through executive agreement. Numerous lump-sum agreements have settled claims of American nationals against foreign nations. See, e.g., Claims Settlement Agreement, July 16, 1960, United States-Poland, 11 U.S.T. 1953, T.I.A.S. No. 4545; Claims Settlement Agreement, July 19, 1948, United States-Yugoslavia, 62 Stat. 2658, T.I.A.S. No. 1803. History also provides numerous examples of claims settlements through executive agreements that establish international arbitrations rather than provide a lump sum. See generally W. McClure, International Executive Agree­ ments 52-56 (1941). In 1935, a congressional study identified 40 arbitra­ tion agreements entered into by the Executive between 1842 and 1931 which were not submitted to the Senate for advice and consent. 79 Cong. Rec. 969-971 (1935).1 B. Constitutional Takings Claims A question that has not been clearly settled is whether any right of action exists for claimants who allege that a settlement provides them with less than what they consider to be the real value of their claims. Agreements have traditionally provided significantly less than the amounts claimed. The principle of international law that a sovereign may settle debts of nationals has a corollary—a national has no legal claim to any particu­ lar funds received in a claims settlement that extinguishes his claim. See Boynton v. Blaine, 139 U.S. 306 (1891); Williams v. Heard, 140 U.S. 529, 537 (1891). The Supreme Court has held that even payments received “on behalf o f” an American claimant do not legally belong to him, and that the Executive Branch could refuse to remit payments received from a foreign government (allegedly because it suspected the claimants of fraud). La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). This supports the generally held view that an American has no recourse against his government’s settlement, except to petition Con­ gress for relief. See Christensen, The United States-Rumanian Claims Settlement Agreement of March 30, 1960, 55 Am. J. Int’l L. 617, 625 (1951). No case has been found adjudicating the right to such compen­ sation. 'W e perceive no reason to believe that passage o f the Foreign Sovereign Immunities A ct o f 1976, 28 U.S.C. § 1602 et seq., w as in any way intended to limit the established constitutional pow er of the President to settle claims, or in any way to alter the substantive law of liability. 1975 State Dept. Digest of U.S. Practice in Int’l Law 353. 250 Dissatisfied claimants have, nevertheless, raised the issue in connec­ tion with previous settlements, see International Claims Settlement Act, Hearings on H.R. 9063 Before the Subcommittee on Europe o f the House Committee on Foreign Affairs, 90th Cong., 1st Sess. 50-55 (1967); Inter­ national Claims Settlement Act, Hearings on S. 1935 and S. 2064 Before the Subcommittee on Europe of the House Committee on Foreign Affairs, 89th Cong., 2d. Sess. 42, 48-49, 74-77 (1966). Scholars in the field have recognized the argument without necessarily endorsing it. Henkin, For­ eign Affairs and the Constitution, 262-66 (1972); Oliver, Executive. Agreements and Emanations from the Fifth Amendment, 49 Am. J. Int’l L. 362, 364 (1955); cf. Restatement, supra, Reporters’ Note to §213; Leigh & Atkeson, Due Process in the Emerging Foreign Relations Law of the United States, 21 Bus. Law. 853, 870-77 (1966). Two historic Court of Claims cases discuss the taking question. Gray v. United States, 21 Ct. Cl. 340 (1886), Meade v. United States, 2 Ct. Cl. 224 (1866), affd, 76 U.S. (9 Wall.) 691. See generally W. Cowles, Treaties and Constitutional Law: Property Interferences and Due Proc­ ess of Law, 200-21 (1941). Gray concerned settlement of the French Spoliation claims of the early 1800’s, relating to damage done to Ameri­ can vessels from 1793 until 1801 by the French navy. Negotiations between France and the United States led to an agreement: the United States agreed to release the French from all claims by American nation­ als and France agreed not to insist upon enforcement of the alliance between the two countries. The court opined that where the Govern­ ment extinguished the American claims in order to further its foreign policy, it had taken private property for a public use and the claimants were thereby entitled to compensation. We would note that in the negotiation of 1800, “individual” claims were used against “national” claims, and the setoff was of French national claims against American individual claims. Responding to this, the court said: It seems to us that this “bargain” . . . falls within the intent and meaning of the Constitution, which prohibits the taking of private property for public use without just compensation. We do not say that for all purposes these claims were “property” in the ordinarily accepted and in the legal sense of the word; but they were rights which had value, a value inchoate, to be sure, and entirely de­ pendent upon adoption and enforcement by the Govern­ ment; but an actual money value capable of ascertainment the moment the Government had adopted them and promised to enforce them, as it did in August, 1793, and constantly thereafter. That the use to which the claims were put was a public use cannot admit of a doubt, for it solved the problem of strained relations with France and forever put out of existence the treaties of 1778, which 251 formed an insuperable obstacle to our advance in paths of peace to the achievement of commercial greatness. Id. at 393. The court’s opinion was advisory; Congress had asked the court to hear the claims and report to it. Thus, the court noted that it was examining the “ethical,” not “legal” rights of a citizen against his government, id. at 406-07, although this would not change the constitu­ tional analysis. The Meade case involved an effort by a citizen to obtain payment from the United States government after settlement of claims with Spain in 1819. After the signing of a treaty between the United States and Spain but prior to Spain’s ratification, Meade submitted a contract claim to Spain and Spain agreed to pay a certain amount. The treaty established a claims commission; Meade presented his claim to it with evidence of the Spanish settlement. He was unable, however, to produce documents requested by the Commission because they had been sent to Spain; he received no payment. Congress subsequently referred the claim to the Court of Claims. Three members of the court wrote opinions. The majority held that the release and cancellation of Meade’s claim against Spain was an appropriation of private property to public use and came within the Just Compensation Clause of the Constitution. 2 Ct. Cl. at 275. Nevertheless, it said Meade was entitled to no compensation because the Commission’s decision not to award compensation could not be reexamined by the Court of Claims. Id. at 275-76. A concurring opinion found no compensable taking since the right of eminent domain had not been exercised. The dissent found a compensable taking, but distinguished Meade from the general class of claimants because he was a creditor armed with a settlement entered into by the government of Spain rather than a claim which had not been acknowledged by a foreign power. Thus, a majority of the court held that a compensable taking had occurred, yet a different majority held that Meade’s heirs were entitled to no compensation from the government. The Supreme Court affirmed, 76 U.S. (9 Wall.) 691, but did not reach the constitutional question. The question now arises as to what reaction the courts would have to these opinions written many years ago. While the courts in recent years have become increasingly sensitive to the procedural require­ ments imposed by the Due Process Clause, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970), they have also recognized that extensive use of regula­ tory powers by the government is not necessarily a taking. Destruction of a monetary claim might have serious consequences for claim holders but may be no more serious than the economic consequences flowing from other regulation not considered a taking. The complexity of the modern world and the increased, almost pervasive regulation that is found in international trade have led to the realization that losses can arise from export controls, import controls, embargoes, and similar 252 government acts. Individual contracts and profits are often sacrificed for what is perceived as greater foreign policy benefits. There is no set formula for deciding when the Due Process Clause requires that economic injuries caused by public action be compensated by the government rather than remain disproportionately concentrated on a few persons. Penn Central Transp. Co. v. City o f New York, 438 U.S. 104, 124 (1978). Essentially ad hoc factual inquiries have been considered necessary. Id. When there is a physical invasion by the government a taking may more easily be found than when there is a public program adjusting benefits and burdens of economic life to promote the common good. Id. The mere fact that property, in this case claims, may be reduced in value does not mean that a taking has necessarily occurred. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962); cf. Miller v. Schoene, 276 U.S. 272 (1928) (upheld destruction without compensation of cedar trees to protect apple orchards from rust). The courts are also more likely to uphold government action against “taking” claims during war and emergency situations which make de­ mands that “otherwise would be insufferable.” United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); Bowles v. Willingham, 321 U.S. 503, 517 (1944); United States v. Caltex, 344 U.S. 149 (1952). Applying the kind of balancing suggested by recent cases leads to persuasive arguments against the contention that a settlement for less than value is a taking. In dealing with an international emergency, the President must be able to act quickly and without fear that the courts will intervene for any but the most compelling reasons. Cf. Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979). Because of the delicate nature of the negotiations with Iran, it is impossible for a court to review political issues and put a value on the extent to which foreign policy considerations may have prevailed over monetary ones. In addition, because of deep government involvement in the crisis, (i.e., the freeze, trade controls, the World Court action) it would be difficult for individuals to demonstrate what they would have recovered absent government intervention.2 In sum we believe that claimants who receive less than the stated value of their claims should not be able to recover additional compensation from the government on the theory that the settlement constituted a taking. II. Presidential Authority to Return Blocked Assets to Iran We now consider whether the President may, through orders issued under IEEPA, free the currently blocked Iranian assets and effect their return to Iran. Although the President has broad powers under IEEPA, 2W e would note that these argum ents can also be viewed as separate grounds for defending a settlement apart from the taking issue. 253 to issue orders blocking or releasing these assets,3 difficulties arise because the banks holding the Iranian accounts are presently subject to a variety of court orders, principally attachments and preliminary in­ junctions, that forbid removal of the funds.4 The President’s action would presumably be to revoke the existing general license for the attachments and to license Iranian withdrawals from the blocked accounts. (Simply to lift the freeze would probably allow the attachments to vest, preventing removal of the funds indefi­ nitely.) Our conclusion is that the President has ample authority under IEEPA to revoke licenses for attachments and to license withdrawals of blocked funds. On November 14, 1979, Executive Order No. 12,170 blocked Iranian government assets and the Treasury Department issued the first of its Iranian Assets Control Regulations (IACR), which provided in part: Unless licensed or authorized pursuant to this part any attachment, judgment, decree, lien, execution, garnish­ ment, or other judicial process is null-and void with respect to any property in which on or since the effective date there existed an interest of Iran. 31 C.F.R. § 535.203(c). And on November 19, 1979, § 535.805 was added, providing that any licenses “may be amended, modified or revoked at any time.” A limited modification to the general ban on unlicensed judicial proceedings was made subsequently on1November 23, 1979, with the adoption of § 535.504, which authorized judicial proceedings, but continued the ban on judgments and payments from blocked accounts. And finally, on December 18, 1979, an interpretive rule was added to clarify the permissible scope of judicial action: The general authorization for judicial proceedings con­ tained in § 535.504(a) includes pre-judgment attachment. However, § 535.504(a) does not authorize payment or de­ livery of any blocked property to any court, marshal, sheriff, or similar entity, and any such transfer of blocked property is prohibited without a specific license. It would 3T he IE E P A ’s principal operative provision, § 1702(a)(1), provides that the President may: (A) investigate, regulate or prohibit — (i) any transactions in foreign exchange, (ii) transfers o f credit or paym ents between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, (iii) the im porting or exporting of currency or securities: and (B) investigate, regulate, direct and com pel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer, w ithdraw al, transportation, im portation or exportation of, or dealing in, or exercising any right, pow er, or privilege with respect to, or transactions involving, any property in w hich any foreign country o r a national thereof has any interest. 4F or convenience, w e will refer to these orders generically as attachm ents, since that is the nature o f most of them. 254 not be consistent with licensing policy to issue such a license. 31 C.F.R. § 535.418. Thus, the current situation is that the great major­ ity of attachments and similar court orders exist pursuant to Treasury’s general license; there are, however, scattered instances of process that was perfected before last November 14th. We understand that these pre-blocking attachments affect only a small portion of the Iranian assets. Because these attachments have priority to the licensing pro­ gram, it may not be possible to revoke them simply by amending the IACR. See Propper v. Clark, 337 U.S. 472 (1949). These attachments may, however, be destroyed by an exercise of the President’s constitu­ tional power to settle claims.5 Against this background, we turn to the effect of the major Supreme Court cases in the field. In Zittman v. McGrath, 341 U.S. 446 (1951) (Zittman 1), claimants attached New York bank accounts of German banks, which had previously been frozen by executive order. After the war, the Alien Property Custodian issued orders vesting the accounts in himself, but the banks refused to release them because of the stillpending attachments. The Custodian sought a declaratory judgment that the claimants had no interest in the assets, and lost. The Supreme Court noted that after the attachments had taken effect, the government issued a ruling which it argued should be applied retroactively, desig­ nating attachments as prohibited transfers. Without deciding whether such a rule could have retroactive effect in other circumstances, the Court refused to apply it to these attachments because to do so would be inconsistent with the government’s earlier position regarding attach­ ments. Treasury had represented in similar litigation that it did not wish to interfere with court proceedings, including attachments, because it was desirable to obtain adjudications of disputed rights to assets subject to the need for a license for any transfer of them. Treasury had thus encouraged litigation to go forward to conclusion, with the reservation that the value of interests so adjudicated might range from worthless to full value, depending on whether a transfer application met the govern­ ment’s purposes in administering the freeze program. The Court accordingly concluded that the Custodian had put himself in the shoes of the German banks. As against the German debtors, the attachments and the judgments they secure are valid under New York law, and cannot be cancelled or annulled under a Vesting Order by which the Custodian takes over only the right, title, and interest of those debtors in the accounts. 5O ur preceding analysis, concluding that the President may enter agreem ents resulting in final settlements o f the claims o f A m erican citizens, makes it clear that an incident of such a settlement would be the voiding o f attachm ents and other inchoate interests relating to those claims. United States v. The Schooner Peggy. 5 U.S. (1 C ranch) 103 (1801). 255 341 U.S. at 463-64. At the same time, the Court recognized that the Custodian could take possession of the assets for administration under the Act. This disposition left the ultimate status of the state law liens for later determination. In a companion case, Zittman v. McGrath, 341 U.S. 471 (1951) (Zittman IT), the Court granted the Custodian possession of attached accounts, for administration under the Act. The Court distinguished Zittman I as involving the Custodian’s attempt to assert that the freez­ ing program “precluded attaching creditors from obtaining any interest in the blocked property good as against the debtors,” whereas here only possession was sought, without prejudice to the attaching credi­ tors’ rights. Subsequently, in Orvis v. Brownell, 345 U.S. 183 (1953), the Court considered a closely similar set of facts, but with one crucial legal difference. Again, claimants obtained attachments and judgments, valid in New York law, against previously blocked assets. This time, how­ ever, the Court interpreted a similar prohibition of "transfers” to fore­ stall attachment from creating any rights against the Custodian. The consequence was to deny the claimants a special priority in particular property, leaving them with general debt claims, to which the state court determinations would presumably be relevant. The present program licenses attachments and litigation, but stops short of permitting judgments. The evident purpose is to allow initial sorting out of claims and preservation of evidence in contemplation of later use in some federal distribution system, much as was the function of litigation in the Zittman cases and in Orvis. The government has so characterized it in court: 535.504 specifically grants a license for initiating judicial proceedings, while withholding a license for a “judgment or of any decree or order of similar or analogous effect.” This distinction serves several important purposes and is vitally related to the President’s (and his delegee’s) pur­ pose to protect those with lawful claims against Iran while preserving the President’s flexibility to adopt an approach to satisfy claims in an orderly and equitable fashion. Permitting claims to go forward permits claim­ ants to avoid problems of statute of limitations, and may provide a vehicle for preserving critical evidence neces­ sary to establish claims, whether they are finally resolved through subsequent licensing of judgments, resolution through an administrative claims process, or otherwise. Similarly, permitting the filing of suits puts Iran on notice of claims for which it may be held liable and thus serves to promote efforts to secure satisfactory protection of claimants’ interest. At the same time withholding license 256 for judgments helps assure that the President maintains the flexibility to determine an orderly method of resolving legitimate claims that assures equity among claimants and provides maximum protection for creditors consistent with the President’s on-going efforts to secure the hos­ tages’ release. The approach works no unfairness on the litigants. The United States’ consent to permit the litigation to go for­ ward, expressed in the general license granted by 535.504, has always been expressly conditioned on the withholding of a license for judgments. To interpret the regulation to permit creation or extinguishing of interests in property through, e.g., summary judgment on liability or on mo­ tions to dismiss with prejudice “would ignore the express conditions on which the consent was extended.” Orvis v. Brownell, 345 U.S. 183, 187 (1953). See also Propper v. Clark, 337 U.S. 472, 485 (1949), where the Court recog­ nized that the United States might permit litigation to go forward under the TWEA, while limiting the rights ob­ tainable through litigation. Memorandum in Support of United States Request that the Court Defer Ruling on the Pending Motions, Charles T. Main International, Inc., v. Khuzestan Water and Power Authority, No. 79-2034C, D. Mass. Identical motions are being filed in other cases. Thus, in the Iranian Assets Control Regulations, the government has reserved full rights to revoke the licensed attachments.6 Although fed­ eral entities holding blocked funds can be expected to honor with­ drawal licenses after the attachments are revoked, private banks may refuse to do so, fearing liability to the attachment claimants. The claimants could sue the banks for wrongfully releasing the funds, argu­ ing that under Zittman I, the government is not in a position to abnegate all their state law rights against their debtors, and that under New York law, a wrongful release of attached property makes the banks liable for an accounting. See Fitchburg Yarn Co. v. Wall & Co., 46 A.D. 2d 763, 361 N.Y.S. 2d 170 (1974). Against such an argument the exculpatory provision of IEEPA, § 1702(a)(3), appears to provide a complete defense. It provides: Compliance with any regulation, instruction, or direc­ tion issued under this chapter shall to the extent thereof be a full acquittance, and discharge for all purposes of the obligation of the person making the same. No person shall be held liable in any court for or with respect to anything 6 Because of the reservation of the right to revoke these attachm ents, it is clear that they can be revoked under IEE PA w ithout giving rise to a successful takings claim. See, e.g.. Bridge Co. v. United States. 105 U.S. 470 (1881); United States v. Fuller. 409 U.S. 488 (1973). 257 done or omitted in good faith in connection with the administration of or pursuant to and in reliance on, this chapter, or any regulation, instruction, or direction issued under this chapter. This provision appears to be a complete barrier to state law liability for release of blocked funds pursuant to presidential directive. Neverthe­ less, the presence of its predecessor does not seem to have assuaged the banks’ concerns in the cases described above. Because this provision does not appear to have been litigated, firm conclusions about its scope are difficult. Moreover, there appears to be no conclusive legislative history indicating that it is meant to bar state law liabilities of all kinds. Therefore, because a presidential directive is arguably ineffectual to destroy the attachments for all purposes, the banks may not be willing to rely on it.7 Their exposure is great; faced with a choice of disobeying a government order (which could subject them to a civil penalty of $10,000 and criminal penalties that may be unlikely in a case of unclear legalities), or releasing billions of dollars for which they may later be asked to account, the banks may insist on legislation granting them more specific protection than does the present statute before they will release the blocked funds. Therefore, funds held by federal entities should be relied on as the source of any amounts promised to be returned forthwith to Iran, because the disposition of the Iranian funds held by private banks, at least in the United States, will surely be the subject of litigation. III. Funds Blocked in Foreign Branches of American Banks The possibility that licenses will be issued for Iranian withdrawals from foreign branches of American banks raises the question of the permissible extraterritorial effect of domestic regulation. First, the United States has authority to exercise jurisdiction over its nationals abroad. Blackmer v. United States, 284 U.S. 421 (1932) (upholding contempt against U.S. citizen residing in France for failure to respond to D.C. Supreme Court subpoena); Cook v. Tait, 265 U.S. 47 (1924) (upholding tax levied against non-resident U.S. citizen for income from property located outside the United States). Although international law 7 N or do the Iranian Assets C ontrol Regulations conclusively determ ine the effects o f a possible revocation o f the existing licenses for judicial proceedings on the rights of private parties inter se. A lthough § 535.805 provides that licenses “may be amended, modified, or revoked at any tim e,'’ other ambiguous provisions suggest that private rights, if not public ones, may have accrued in the meantime. See § 535.203(c), w hich states that “ unless otherw ise provided," licenses render transactions enforceable “ to the same extent” as they would be absent IEE PA . See also § 535.502(c), providing that unless otherw ise specified, licenses do not create interests in property w hich “w ould not otherwise exist under ordinary principles o f law ,” and § 535.402, stating that revocation of licenses, “ unless otherw ise specifically provided,” do not affect the validity o f prior actions. T he reservation in these regulations of pow er to specify special conditions, how ever, may provide a sufficient warning to attachm ent lienors that their interests may be negated entirely. Revocation orders should attem pt to destroy the attachm ents for all purposes, relying on the special conditions power. 258 principles are unsettled for determining the nationality of corporations, the generally accepted U.S. rule is that corporations have the national­ ity of the states that create them. See Craig, Application of the Trading with the Enemy Act to Foreign Corporations Owned by Americans: Reflec­ tions on Fruehauf v. Massardy, 83 Harv. L. Rev. 579, 589-92 (1970). American-owned and incorporated foreign branches of U.S. banks thus appear to be “subject to the jurisdiction of the United States,” within the meaning of IEEPA. And the government has steadfastly maintained to date that the initial blocking orders applied to Iranian funds in these banks. As the Supreme Court has stated in a related context, such a branch bank: is not a separate entity in the sense that it is insulated from [its head office’s] managerial prerogatives. [The New York head office] has actual, practical control over its branches; it is organized under a federal statute, 12 U.S.C. § 24, which authorizes it “To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons”—as one entity, not branch by branch. The branch bank’s affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the head office. United States v. First National City Bank [Citibank], 379 U.S. 378, 384 (1965). In the Citibank case, the Supreme Court upheld the district court’s authority, in a suit by the United States to enforce a tax lien against a Uruguayan corporation, to issue a preliminary injunction against the head office of Citibank ordering it not to transfer to the corporation any corporate assets on deposit with the Montevideo branch of Citibank. The same result would follow under judicial deci­ sions enforcing subpoenas against U.S. banks for the production of records in the hands of foreign branches. United States v. First National City Bank, 396 F.2d 897 (2d Cir. 1968); First National City Bank of New York v. Internal Revenue Service, 271 F.2d 616 (2d Cir. 1959). Thus under domestic law IEEPA orders are effective with respect to foreign branches of American banks. These banks have already been licensed to set off amounts owed them by Iran against these accounts. Once withdrawal licenses are issued, there should be no legal impedi­ ment to Iranian withdrawal of the remaining balances of the accounts.8 8It is possible that after w ithdraw al licenses are issued, creditors o f Iran will attem pt to attach some of these accounts through actions in foreign courts. Such an eventuality could raise jurisdictional conflicts. In an analogous context, the United States Supreme C ourt has assented to an executive policy of denying foreign claimants resort to form erly blocked assets, at least unless their claims related to transactions in this country. United States v. Pink, supra. International law principles of com ity suggest that foreign courts w ould therefore allow their ow n dom estic claimants a special priority in adjudicating rights to Iranian funds found there. 259 IV. Returning the Shah’s Assets to Iran We now consider what action the President may take to assist or effect the return of the Shah’s assets in the United States to Iran. Such an action might take one of a number of forms: vesting the assets in the government for administration in accordance with an international set­ tlement; blocking the assets under IEEPA to facilitate a census and to prevent their removal; or undertaking to aid Iran in its present litigation to recover the assets, either by informing the court of our position on sovereign immunity and act of state doctrines, or by taking an assign­ ment of the claim from Iran. We conclude that the first of these alternatives, vesting the assets, would require legislation and even then would , give rise to a takings claim for just compensation. The others can be performed under present law, are likely to achieve the govern­ ment’s purposes, and would, we believe, be likely to survive constitu­ tional challenge by the Shah’s estate. The question of vesting authority presents special problems. When the IEEPA was enacted in 1977, the President’s authority to vest assets was confined to wartime. 50 U.S.C. App. § 5(b) (Supp. I 1977). New legislation could attempt to authorize the President to vest the Shah’s assets and to administer them in accordance with settlement of the hostage crisis. However, vesting the private property of a non-enemy alien national without compensation would appear to violate the Fifth Amendment.9 In Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), the Supreme Court unanimously construed a statute to permit suits by non-enemy aliens for the value of ship construction contracts that the United States requisitioned under the statute (which provided for just compensation suits in cases of expropriation, but did not specify who would be entitled to sue). The petitioner, a Russian corporation, was the assignee of two construction contracts that were requisitioned, along with the ships built under them. The Government argued that Congress did not intend to protect corporations organized under the laws of a government that the United States did not recognize. The Court declined to adopt that statutory construction on the ground that such a construction would “raise a grave question as to the constitu­ tional validity of the Act,” (282 U.S. at 492), and instead held that: The petitioner was an alien friend, and as such was enti­ tled to the protection of the Fifth Amendment of the Federal Constitution. Exerting by its authorized agent the power of eminent domain in taking the petitioner’s prop­ erty, the United States became bound to pay just compen­ sation. And this obligation was to pay to the petitioner 9A foreign nation, how ever, unlike a foreign national, does not have rights under the Fifth Amendm ent. 260 the equivalent of the full value of the property contempo­ raneously with the taking. 282 U.S. at 489 (citations omitted). The Supreme Court has, in subsequent cases, repeatedly indicated its continuing approval of the Russian Volunteer Fleet holding. See, e.g., Guessefeldt v. McGrath, 342 U.S. 308, 318 (1952). In Clark v. Uebersee Finanz-Korporation, 332 U.S. 480 (1947), the Court held that Congress’ amendment of the Trading with the Enemy Act (TWEA) in 1941 to permit the seizure of any foreign asset was not intended to preclude non-enemy aliens from claiming their interests in such assets: It is not easy for us to assume that Congress treated all non-enemy nations, including our recent allies, in such a harsh manner, leaving them only with such remedy as they might have under the Fifth Amendment. 332 U.S. at 487-8. See also Becker Steel Co. v. Cummings, 296 U.S. 74, 79 (1935).10 The President’s authority to block the Shah’s assets under present law, in contrast to vesting them, does not seem open to serious ques­ tion. The IEEPA authorizes the President to block transfers of “any property in which any foreign country or a national thereof has any interest,” 50 U.S.C. § 1702(a)(1). The application of this language in the predecessor TWEA to the assets of foreign nationals was firmly estab­ lished by the time of the IEEPA’s enactment and has repeatedly sur­ vived constitutional challenge. E.g., Sordino, supra, upholding the blocking of assets of Cuban nationals. Still, an executive order blocking property of the Shah’s estate in the United States would be unique in singling out the assets of one individual. Nevertheless, there seems ample justification for such an order in the prominent place in the current emergency of Iran’s claim that assets in the Shah’s estate are actually converted Iranian government assets. Indeed, there is an argument that the Shah’s assets in this country are presently blocked by Executive Order No. 12,170. That order blocks “all property and interests in property” of the government of Iran, and implementing regulations define “interests” and “property” in the broadest possible terms, including indirect and contingent interests. 31 C.F.R. §§ 535.311-12. Therefore, perhaps the assets claimed in Iran’s suit against the Shah in New York state court are subject to the blocking order. (Certainly any assets for which Iran obtained a judg­ ment thereupon would be blocked.) However, an interpretation of the ,0T he only authority to the contrary is Judge Friendly's dictum in Sordino v. Federal Reserve Bank o f New York, 361 F.2d 106, 113 (2d Cir. 1966), cert, denied. 385 U.S. 898. to the effect that the right of a state to protect its nationals abroad might com prehend expropriation o f property o f nationals o f an offending nation for com pensatory purposes. Sordino involved blocked assets, not vested ones; this dictum has broad and quite harsh implications. We believe it to be inconsistent w ith the Suprem e C ourt cases discussed in text. 261 blocking order that applied it to assets claimed by Iran in litigation would grant that nation a power to block assets in this country by asserting claims to them. In view of the implications of such an in­ terpretation, we believe that it was not intended by the order or the regulations, and that a separate executive order blocking assets owned by the Shah’s estate would be necessary. The Treasury Department could then proceed to perform a census of the assets in the normal manner. An order blocking the Shah’s assets would presumably be prepara­ tory to an effort to have the Government participate in Iran’s suit against the Shah in either of two ways. First, we could simply urge the court to reach the merits of the conversion claims, by filing a Sugges­ tion of Interest that presents the Executive’s position that the doctrines of sovereign immunity and act of state should not bar the court’s determination of the merits. Second, the Government could urge the court to treat the merits as foreclosed in Iran’s favor, so that the only remaining issue would be to identify particular assets as belonging to the Shah’s estate. We would do this by presenting a Suggestion of Interest urging that under the act of state doctrine, Iranian government determinations that the Shah did convert government assets must be respected by our courts. Indeed, we could take an assignment of the Iranian claims and pursue them before the court. We will analyze these possibilities in the order presented. In the absence of a Suggestion of Interest of the United States that alters the court’s approach to sovereign immunity and act of state doctrines, it may fail to reach the merits of Iran’s case. The complaint alleges that the Shah was the de facto ruler and head of state of Iran from 1941 until January 1979. The acts complained of are alleged to have taken place in Iran during the period that the Shah was the ruling monarch, and therefore would ordinarily constitute acts of state. An argument can also be made that the Shah’s estate enjoys sover­ eign immunity from suit.11 The 1976 Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., does not expressly address the privileges and immunities of heads of state, but talks only in terms of “foreign states.” Nevertheless, Restatement (Second) of the Foreign Relations Law of the United States, §66 (1965), states that the immunity of a foreign state recognized in § 65 extends to “its head of state and any person designated by him as a member of his official party.” Thus, it is arguable that a former head of state enjoys the immunities of a “foreign state” as codified in the A ct.12 Alternatively, if the Act were construed 11 In Hatch v. Baez, 14 N.Y. (7 Hun) 596 (1876), the court held that the acts while in office of a form er head of stale w ere immune from judicial scrutiny in a suit brought by a private claim ant, not his form er governm ent. The court's decision is phrased in terms suggestive of both act of state and sovereign immunity doctrines. ,2Section 1605(a)(5) preserves the immunity o f foreign states from suit with respect to— Coniinued 262 not to apply to heads of state, the Shah might be entitled to immunity under generally recognized doctrines of customary international law. See 1 Oppenheim’s International Law 676 ff. (Lauterpacht ed., 1953). Since either act of state or sovereign immunity doctrines may defeat Iran’s claims against the Shah if applied in this case, it is important to consider whether the present Iranian government may waive the appli­ cation of these doctrines to the acts of its predecessor. We have found no authority on point. As an a priori matter, it seems that Iran might be able to waive the doctrines.13 Both doctrines exist for the benefit of the state in question, not for the individuals who lead it. Therefore it seems incongruous to apply the doctrines to defeat a claim by a state for its own assets converted by a former monarch. Since the question of the waivability of these defenses by a present government against a former head of state is an open one, a Suggestion of Interest indicating that the Executive favors reaching the merits might be especially persuasive in court, although it is unlikely to prove conclusive.14 A more conclusive impact on the merits might follow an Iranian decree nationalizing the Shah’s assets, and either a Suggestion of Inter­ est by the United States, urging that it be honored, or a full-scale assignment of the Iranian claims to the United States pursuant to an executive agreement. Such an assignment should allow our government to recover the assets, under United States v. Belmont, 301 U.S. 324 (1937), which held that a foreign country’s expropriation decree di­ rected at that country’s corporations must be deemed by a U.S. court to have validly vested title to the expropriated assets in the foreign government. The United States sued in Belmont to recover funds that a Russian corporation, prior to nationalization, had deposited with a New York banker. The United States claimed these funds under the Litvinov Assignment. The Court held that our recognition of the U.S.S.R. impliedly recognized as valid that nation’s expropriation decrees, and that the U.S. claim for the expropriated assets did not constitute a taking of private property under the Fifth Amendment: The public policy of the United States relied upon as a bar to the action is that declared by the Constitution, namely, that private property shall not be taken without (A) any claim based upon (he exercise or perform ance or the failure to exercise or perform a discretionary function regardless of w hether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, m isrepresentation, deceit, or interference w ith contract rights. T he tortious and wrongful acts alleged in the com plaint w ould probably fall within the above provisions of the Act. 13 Analogy may be taken to the pattern of diplomatic immunities and their waiver. Under the Vienna C onvention on D iplomatic Relations, the sending state may waive a diplom at’s immunity (art. 32). Absent waiver, how ever, immunity for the exercise o f official functions subsists after the diplo­ mat's appointm ent has term inated (art. 39.2). 14The effect in New York courts o f Suggestions of Interest by the United States regarding these issues is discussed at length in our m emorandum of January 2, 1980, to the A cting Associate A ttorney G eneral [p: 160 supra]. 263 just compensation. But the answer is that our Constitu­ tion, laws and policies have no extraterritorial operation, unless in respect of our own citizens. What another country has done in the way of taking over property of its nationals, and especially of its corporations, is not a matter for judicial consideration here. Such nationals must look to their own government for any redress to which they may be entitled. 301 U.S. at 332 (citation omitted). No suggestion appears in Belmont that the constitutionality of the United States government’s “taking” depended at all on the payment of compensation to Russian nationals by this government or by that of the U.S.S.R. See also United States v. Pink, 315 U.S. 203 (1942). Thus it appears that an assignment can avoid the constitutional perils of vesting—the Russian Volunteer Fleet case was cited with approval in Belmont. John M . H arm on Assistant Attorney General Office o f Legal Counsel 264

Write a legal research memo on the following topic.

Proposal That the President Accept Honorary Irish Citizenship Acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of the Emoluments Clause of the Constitution. The procedure which has developed under the constitutional provision and its implementing statute would permit the President to participate in the formal ceremonies, accept the written evidence of the award and have it deposited with the Department of State, subject to the subsequent consent of Congress. Even if Congress does not enact consenting legislation, the President could probably have the document conferring honorary Irish citizenship delivered to him by the Department of State after he leaves the White House. May 10, 1963 MEMORANDUM OPINION FOR THE SPECIAL ASSISTANT TO THE PRESIDENT* The Attorney General has asked me to respond to your memorandum of April 17, 1963, with respect to the legal aspects of the proposal that the President accept “honorary Irish citizenship.” For the reasons set forth hereafter, I believe that acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of Article I, Section 9, Clause 8, of the Constitution which requires that an individual who holds an office of profit or trust under the United States must obtain the consent of Congress in order to accept “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” Nevertheless, the procedure which has developed under the constitutional provision and under section 3 of the Act of January 3, 1881 (ch. 32, 21 Stat. 603, 604 (codified at 5 U.S.C. § 115)), a statute which implements the provision, would permit the President to participate in the formal ceremonies, accept the written evidence of the award and have it deposited with the Department of State, subject to the subsequent consent of Congress. Moreover, even if Congress should thereafter fail to enact consenting legislation, the President could probably have the document conferring honorary Irish citizenship delivered to him by the Department of State after he leaves the White House. At the outset, it should be emphasized that what would be conferred upon the President would not be Irish citizenship but merely honorary Irish citizenship. Your memorandum of April 17, 1963 indicated that it was originally the intention that the grant be conferred pursuant to section 12 of the Irish Nationality and Citizenship Act, 1956. That act provides that “Irish citizenship” may be granted to individuals or the children or grandchildren of individuals who have “done signal * Editor’s Note: The Special Assistant to whom this memorandum was addressed was McGeorge Bundy, National Security Adviser to the President. 278 Proposal That the President Accept Honorary Irish Citizenship honour or rendered distinguished service to” Ireland, but it makes it clear that once the grant is made the individual “shall . . . be an Irish citizen.” Id. § 12. Accordingly, action pursuant to this statute would impose upon the President whatever duties and obligations are ordinarily attached to Irish citizenship and would raise the serious problems attendant upon an undertaking by a President of fealty to another nation. As a result of discussion of this problem with the Irish Ambassador, the Government of Ireland has drafted a special act, a copy of which is attached. The act would provide that “[t]he President [of Ireland] may by warrant confer on John Fitzgerald Kennedy, President of the United States of America, the title of honour of Honorary Citizen of Ireland.” In an Aide-Mémoire of April 30, 1963, which is also attached, the Irish ambassador states: The Attorney General of Ireland has given opinion that the Bill as drafted would not confer citizenship with its attendant duties and obligations but only a title of honor. I agree. In fact, the Department of Justice took a similar position when honorary United States citizenship was conferred upon Sir Winston Churchill. H.R. Rep. No. 88-57 (1963). Consequently, the problems which might have arisen as a result of dual citizenship are no longer presented. However, the question still remains whether acceptance comes within the letter or spirit of Article I, Section 9, Clause 8, which provides: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. This clause was adopted unanimously at the constitutional convention as a means of preserving the independence of foreign ministers and other officers of the United States from external influences. 3 Papers of James Madison 1408 (1841). It is virtually copied from a similar provision in Article VI of the Article of Confederation. The constitutional provision has been interpreted as being “particularly directed against every kind of influence by foreign governments upon officers of the United States, based on our historic policies as a nation.” Gifts from Foreign Prince, 24 Op. Att’y Gen. 116, 117 (1902) (emphasis in original); see also 2 Joseph Story, Commentaries on the Constitution of the United States § 1352 (Thomas M. Cooley ed., 4th ed. 1873). It will be noted that the proposed Irish statute describes what would be conferred upon the President as a “title of honour.” As such, it could be argued that what would be conferred falls within the literal language of the constitutional provision. Ambassador Kiernan has advised us that the bill could be redrafted to 279 Supplemental Opinions of the Office of Legal Counsel in Volume 1 omit the reference to a “title of honour.” However, I do not believe that the legal problem would be significantly modified if this should be done. The spirit of the provision clearly extends to any type of obligation to foreign countries, and the designation of what is conferred appears to be of little relevance. Moreover, in analyzing Public Law 88-6 and Proclamation 3525 of April 9, 1963, which operated to confer honorary citizenship of the United States upon Sir Winston Churchill, this Department took the view that what would be conferred upon him would be “similar in effect to . . . a medal or decoration.” H.R. Rep. No. 88-57, at 4 (letter of Deputy Attorney General Katzenbach). The House Committee on the Judiciary stated that it “subscribes to the interpretation of the import of this legislation as outlined in the report rendered by the Department of Justice.” Id. at 5. And medals and decorations have always been regarded as coming within the constitutional provision,1 although it has never been precisely articulated whether one of these constitutes a “present, Emolument, Office, or Title.” Thus, section 3 of the Act of January 31, 1881 provides: [A]ny present, decoration, or other thing, which shall be conferred or presented by any foreign government to any officer of the United States, civil, naval, or military, shall be tendered through the Department of State, and not to the individual in person, but such present, decoration, or other thing shall not be delivered by the Department of State unless so authorized by act of Congress. 5 U.S.C. § 115. The constitutional provision requires the consent of Congress to the acceptance of the enumerated honors and presents “of any kind whatever.” Since the statute is intended to implement this provision, the phrase “other thing” should probably be construed in a similarly inclusive manner. Accordingly, it could be reasonably contended that a warrant or other documentary evidence of honorary Irish citizenship that may be presented to the President is an “other thing” within the meaning of the statute. Literally read, the statute precludes direct tender of a present or mark of honor to an officer of the United States; the tender is to be through the Department of State. However, on the ground that it avoids offense to other countries, a custom has developed under which officers of the United States may accept foreign honors tendered to them and subsequently have them deposited in the Department 1 See, e.g., Message of President Andrew Jackson to the Senate and House of Representatives, dated January 19, 1830, in 3 Compilation of the Messages and Papers of the Presidents 1029, 1030 (James D. Richardson ed., 1897), stating that the Constitution prevented him from accepting a medal tendered to him by the Republic of Colombia, and that he was placing it at the disposal of Congress. Congress did not grant its consent to acceptance. The House Committee on Foreign Affairs merely recommended that the medal be deposited with the Department of State. H.R. Rep. No. 21-170 (Feb. 9, 1830). See also 5 U.S.C. § 114 (prohibiting an officer of the United States from wearing a decoration without the consent of Congress). 280 Proposal That the President Accept Honorary Irish Citizenship of State. This procedure has been treated as substantial compliance with the statute. If Congress subsequently enacts legislation consenting to acceptance (see, e.g., Act of Aug. 3, 1956, Priv. L. No. 84-850, 70 Stat. A171), delivery is made to the recipient.2 Therefore, if the President should accept the tender of honorary Irish citizenship, it would be appropriate for him to include in his acceptance remarks a statement that he is thereupon placing the warrant in the hands of the United States Ambassador to Ireland in accordance with United States law. If the President handled the matter in this way, it would be difficult for anyone to contend that his action was inconsistent with the constitutional provision or the statute.3 In order to minimize possible congressional criticism in that regard, it might also be appropriate to advise the Chairmen of the House and Senate Foreign Relations Committees in advance that this procedure will be followed. Two final points might be made. First, some Presidents have treated presents which they have received as gifts to the United States, rather than as personal gifts. They have therefore taken the view that acceptance is not subject to the constitutional provision. This view was apparently followed by President Lincoln, who received a “Diploma” from the Republic of San Marino declaring that “the President pro tempore of the United States of America” was a citizen of that Republic. Although Lincoln wrote the Regent Captains of San Marino thanking its Council for the honor that it had “conferred upon me” (4 The Collected Works of Abraham Lincoln 360 (Roy P. Basler ed., 1953)), he had the document deposited with the Department of State and it is now in the National Archives. The “Diploma” was conferred on the President of the United States “pro tempore,” and it indicates that the action to authorize its issuance was taken while Buchanan was still President. The circumstances thus appear to have differed markedly from those here involved. It seems clear that Ireland proposes to confer honorary citizenship on President Kennedy personally, not on him as the President of the United States for the time being. Second, we are informed that it is the practice of the Protocol Office of the State Department, the custodian of gifts and other marks of honor deposited 2 Under 5 U.S.C. § 115a, the Secretary of State is directed to submit to each alternate Congress a list of retired personnel for whom the Department of State is holding decorations, medals or other marks of honor pursuant to 5 U.S.C. § 115. In a memorandum to department and agency heads, dated April 13, 1954, President Eisenhower directed that lists submitted to Congress pursuant to 5 U.S.C. § 115a be limited to retired personnel. Of course this direction has not prevented Congress from granting the required consent to incumbent officers. 70 Stat. A171. 3 As a legal matter, the consent of Congress can be obtained either in advance or following receipt of anything covered by Article I, Section 9, Clause 8. We have, however, been able to locate only one statute in which it was clear that the consent had been granted in advance, Pub. Res. 34-3, 11 Stat. 152 (Aug. 30, 1856), and this did not involve a President. On the other hand, in the only instance in which we have been able to discover a grant of consent to a President, it followed receipt. Pub. Res. 54-39, 29 Stat. 759 (Apr. 2, 1896) (authorizing delivery to Benjamin Harrison of medals presented to him by Brazil and Spain during his term as President). The Harrison precedent would strengthen the view that the procedure suggested above is consistent with constitutional practice. 281 Supplemental Opinions of the Office of Legal Counsel in Volume 1 pursuant to the 1881 Act, to deliver to a former officer who has severed any official relationship with the United States, upon his request and without referral to Congress, a gift or other mark of honor tendered to him during his incumbency and deposited under the Act. Accordingly, even if Congress should not act in this matter, the President could probably obtain the warrant when he no longer holds office.4 I assume that the President will independently appraise the policy considerations involved in acceptance of the foreign honor here involved. In this regard, he may wish to know that President Wilson refused all foreign decorations while in office.5 On the other hand, it is clear that this attitude does not represent an established policy of the presidency, as evidenced by the incidents, referred to above, involving Presidents Jackson, Lincoln and Benjamin Harrison. NORBERT A. SCHLEI Assistant Attorney General Office of Legal Counsel 4 While a former President is entitled to a monetary allowance of $25,000 per year (Pub. L. No. 85745, 72 Stat. 838 (codified at 3 U.S.C. § 102 note (1958)), he could hardly be considered to hold an “Office” within the meaning of the constitutional prohibition. 5 Edith Bolling Wilson, My Memoir 343 (1st ed. 1938). 282 Proposal That the President Accept Honorary Irish Citizenship ATTACHMENT 1 President Kennedy Bill, 1963 Arrangement of Sections Section 1. Conferring of title of honour on President Kennedy. 2. Short title. Draft of Bill An Act to enable the title of honour of Honorary Citizen of Ireland to be conferred on John Fitzgerald Kennedy, President of the United States of America. BE IT ENACTED by the Oireachtas as follows: Conferring of title of honour on President Kennedy. 1. The President may by warrant confer on John Fitzgerald Kennedy, President of the United States of America, the title of honour of Honorary Citizen of Ireland. Short title. 2. This Act may be cited as the President Kennedy Act, 1963. 283 Supplemental Opinions of the Office of Legal Counsel in Volume 1 ATTACHMENT 2 Aide-Mémoire The Government of Ireland is prepared to promote special legislation to enable the title of Honorary Citizen of Ireland to be conferred on President Kennedy, instead of pursuing the idea of offering citizenship as a token of honor under Section 12 of the Irish Nationality and Citizenship Act, 1956. A draft bill has been prepared with this objective in mind. The text of the bill is conveyed herewith. The Attorney General of Ireland has given opinion that the Bill as drafted would not confer citizenship with its attendant duties and obligations but only a title of honor. An informal intimation is requested as to whether the title of honor of Honorary Citizen of Ireland, as contemplated in the draft bill, would be acceptable to President Kennedy. April 10, 1963 284

Write a legal research memo on the following topic.

Legislative Proposal to Nullify Criminal Convictions Obtained Under the Ethics in Government Act A proposed bill would have the effect of nullifying all crim inal convictions obtained under the Ethics in Governm ent Act since that Act was passed in 1978. Under the Pardon Clause o f the Constitution, U.S. Const, art. II, § 2, cl. 1, the President has broad power to take action to relieve individuals who have violated federal laws. By contrast, the Constitution gives C on­ gress no authority to legislate a pardon for any particular individual or class o f individuals. Therefore, the proposed bill exceeds Congress’ power to legislate and would be an unconsti­ tutional infringem ent on the President’s pardon power. June 3, 1986 M em orandum O f f ic e of O p in io n t o t h e L e g is l a t iv e and A s s is t a n t A t t o r n e y G e n e r a l , In t e r g o v e r n m e n t a l A f f a ir s We have reviewed the provisions of S. 2214, “A bill to clarify that a civil penalty is the exclusive penalty for violations of the ethics in government act.” We defer to other components of the Department on the desirability as a policy matter of making civil penalties the exclusive remedy for enforcing the provi­ sions of the Ethics Act. However, we have serious objections to the provision of the bill that purports to make it effective “on the date of enactment of the Ethics in Government Act.” We understand that this provision is intended by the sponsors of S. 2214 to have the effect, inter alia, of nullifying all criminal convictions under the Act since its passage in 1978.1We believe that Congress has no authority to enact such a measure, and in addition, that it would be an unconstitutional intrusion on the President’s constitutional power to pardon. Under Article II of the Constitution, the President has the power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” U.S. Const, art. II, § 2, cl. 1. The President’s constitutional pardon power is derived from, and has been interpreted in light of, the English Crown authority to alter and reduce punishments as it existed in 1787. See generally Schick v. Reed, 419 U.S. 256 (1974). The Presidential pardon power is multifaceted, and embraces a wide variety of acts that may relieve individu­ 1 We assum e that the b ill’s “effective date" provision is also intended to effect the dism issal o f all pending crim inal investigations and prosecutions, as well as to estop any future ones. O ur analysis here focuses only on the attem pted legislative exoneration o f persons convicted by judicial process o f a crim e under the Act. O f course, if S. 2214 is intended to apply only where no governm ent prosecution has been com m enced, and not where an investigation o r prosecution has been initiated or a conviction obtained, as a policy m atter it would raise a serious question o f disparate treatment. 93 als who have violated the law. A pardon may take the form of release from prison, remission of fines and forfeitures, commutation or alteration of a sentence, restoration of civil rights, dismissal of a prosecution, or a grant of immunity from prosecution. It may be absolute or conditional, and extended to a specific individual or to an entire class or community. It includes but is not limited to the power to grant amnesty or immunity from prosecution.2 By contrast, the Constitution gives Congress no authority to legislate a pardon for any particular individual or class of individuals. In the first case to be decided involving the President’s pardon power, Chief Justice Marshall explained that a pardon is “an act of grace, proceeding with the power entrusted with the execution o f the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (emphasis supplied). Because the President’s pardon power flows directly from the Constitution, it is not dependent on a legislative enactment, and cannot be infringed by Congress. See Schick v. Reed, 419 U.S. at 267; United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1872).3 Although there is some support in the case law and historical precedent for congressional power in certain limited circumstances to effect the same result that would flow from an exercise of the President’s pardon power, these circumstances are limited to those involving prospective grants of am­ nesty or immunity, or restoration of civil rights, to persons who have not yet been subjected to prosecution by the executive.4 In no case we have found has Congress been held to have the power through self-executing legislation to grant relief in the form of remission of a prison sentence or monetary fine to individuals who have been convicted of violating a criminal statute.5 We know of only one previous occasion on which Congress has even attempted to legislate the release of convicted individuals. In S. 1145, a bill introduced in the 94th Congress to provide amnesty to persons who failed to register for the draft, included a provision directing the release from prison of 2 T here has been considerable discussion o f and confusion over the difference betw een pardon and amnesty. See , e.g.. Freem an, A Historical Justification and Legal Basis fo r Amnesty Today, 1971 Ariz. St. U. L.J. 515, 5 2 4 -5 2 7 (1971). As a general matter, am nesty is understood as referring only to preprosecution relief extended to w hole classes o r communities. The relief available through the President’s pardon pow er may o f course include this anticipatory immunity o r forgiveness, but is not so limited. See United States v. Klein , 80 U .S. (13 W all.) 128 (1872) (President's p o w er to offer am nesty to form er rebels); 20 Op. Att*y Gen. 330 (1892) (P re sid e n t's pow er to extend gen eral am nesty to persons residing in Utah who had been guilty of polygam y). 3 C ongress has been held to have the p o w er to enact law s em pow ering executive officers other than the P resident (though responsible to him) to rem it fines o r penalties incurred for violations o f the law. See The Laura, 114 U .S. 411 (1885). 4 F o r exam ple, in the post-C ivil War p e rio d Congress enacted several pieces o f legislation restoring civil rights to fo rm er rebels. Indeed, its pow er to take such action is specifically recognized in the Fourteenth A m endm ent. See U .S. C onst, amend. X IV , § 3. In Brown v. Walker, 161 U.S. 593 (1896), the Suprem e Court upheld a statute requiring witnesses subpoenaed in connection with Interstate Com m erce Commission proceedings to testify in return for a g ra n t o f absolute im m unity from any subsequent prosecution. See Burdick v. United States , 236 U.S. 79, 9 4 (1915), describing the “substantial’* differences betw een “ legislative im m unity” and a Presidential pardon. s A num ber o f state courts have held th at acts o f general am nesty passed by the legislature are invalid as an invasion o f th e e x ecu tiv e’s pardoning p o w er. See 20 O p. A tt’y Gen. 330 (1892) (collecting cases). 94 persons convicted and serving a sentence for so failing to register. The Depart­ ment testified in opposition to this legislation, taking the position that Congress has no power to effect release from prison, through legislation or otherwise, and that it may not encroach upon the President’s power in this regard. See Memorandum from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel to the Assistant Attorney General, Criminal Division (May 13, 1975).6 In sum, insofar as S. 2214 would have the effect of voiding or modifying in any respect criminal penalties imposed as a result of violations of the Ethics in Government Act, we believe it exceeds Congress’ power to legislate, and would be an unconstitutional intrusion on the President’s pardon power.7 D o u g l a s W. K m i e c Deputy Assistant Attorney General Office o f Legal Counsel 6 This O ffice also objected on the same grounds to provisions o f the bill granting im m unity to those who failed to register and to deserters, requiring the dism issal o f all pending legal proceedings against such persons, and allow ing persons serving a term o f reconciliation service pursuant to President F o rd 's C lem ency Proclam ation 8313 to be released from such service. We did not object to provisions o f the bill that granted an honorable discharge to all such persons who had served in the arm ed forces, and restoring the citizenship o f form er citizens who had renounced their citizenship because o f disapproval o f United States involvem ent in Indochina. W ith respect to the latter act, w e rem arked that <4[t]o restore the original citizenship o f such persons may be an act o f amnesty, but it is certainly not the constitutional equivalent o f an A rticle II ‘pardon.’” M emorandum from M ary C. Lawton, D eputy A ssistant A ttorney G eneral, Office o f Legal Counsel to the Assistant Attorney G eneral, Criminal Division (M ay 13, 1975). As authority for such a legislative enactm ent, we cited C ongress' plenary pow er over citizenship and naturalization under A rticle I, § 8, cl. 4 o f the C onstitution. 7 It could also be argued that such legislation would infringe the courts' pow er to interpret and apply the law, and intrude upon the integrity o f the ju d icial process. Compare United States v. Klein , 80 U.S. at 146—47 (legislation attem pting to w ithdraw c o u rt's jurisdiction to consider the effect o f a Presidential pardon infringes judicial pow er and violates principle o f separation o f pow ers) with Ex Parte Grossman, 267 U.S. 87 (1925) (upholding a Presidential pardon o f a contem pt o f court against an argum ent that it violated separation of powers). 95

Write a legal research memo on the following topic.

Legislative Proposal to Nullify Criminal Convictions Obtained Under the Ethics in Government Act A proposed bill would have the effect of nullifying all crim inal convictions obtained under the Ethics in Governm ent Act since that Act was passed in 1978. Under the Pardon Clause o f the Constitution, U.S. Const, art. II, § 2, cl. 1, the President has broad power to take action to relieve individuals who have violated federal laws. By contrast, the Constitution gives C on­ gress no authority to legislate a pardon for any particular individual or class o f individuals. Therefore, the proposed bill exceeds Congress’ power to legislate and would be an unconsti­ tutional infringem ent on the President’s pardon power. June 3, 1986 M em orandum O f f ic e of O p in io n t o t h e L e g is l a t iv e and A s s is t a n t A t t o r n e y G e n e r a l , In t e r g o v e r n m e n t a l A f f a ir s We have reviewed the provisions of S. 2214, “A bill to clarify that a civil penalty is the exclusive penalty for violations of the ethics in government act.” We defer to other components of the Department on the desirability as a policy matter of making civil penalties the exclusive remedy for enforcing the provi­ sions of the Ethics Act. However, we have serious objections to the provision of the bill that purports to make it effective “on the date of enactment of the Ethics in Government Act.” We understand that this provision is intended by the sponsors of S. 2214 to have the effect, inter alia, of nullifying all criminal convictions under the Act since its passage in 1978.1We believe that Congress has no authority to enact such a measure, and in addition, that it would be an unconstitutional intrusion on the President’s constitutional power to pardon. Under Article II of the Constitution, the President has the power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” U.S. Const, art. II, § 2, cl. 1. The President’s constitutional pardon power is derived from, and has been interpreted in light of, the English Crown authority to alter and reduce punishments as it existed in 1787. See generally Schick v. Reed, 419 U.S. 256 (1974). The Presidential pardon power is multifaceted, and embraces a wide variety of acts that may relieve individu­ 1 We assum e that the b ill’s “effective date" provision is also intended to effect the dism issal o f all pending crim inal investigations and prosecutions, as well as to estop any future ones. O ur analysis here focuses only on the attem pted legislative exoneration o f persons convicted by judicial process o f a crim e under the Act. O f course, if S. 2214 is intended to apply only where no governm ent prosecution has been com m enced, and not where an investigation o r prosecution has been initiated or a conviction obtained, as a policy m atter it would raise a serious question o f disparate treatment. 93 als who have violated the law. A pardon may take the form of release from prison, remission of fines and forfeitures, commutation or alteration of a sentence, restoration of civil rights, dismissal of a prosecution, or a grant of immunity from prosecution. It may be absolute or conditional, and extended to a specific individual or to an entire class or community. It includes but is not limited to the power to grant amnesty or immunity from prosecution.2 By contrast, the Constitution gives Congress no authority to legislate a pardon for any particular individual or class of individuals. In the first case to be decided involving the President’s pardon power, Chief Justice Marshall explained that a pardon is “an act of grace, proceeding with the power entrusted with the execution o f the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (emphasis supplied). Because the President’s pardon power flows directly from the Constitution, it is not dependent on a legislative enactment, and cannot be infringed by Congress. See Schick v. Reed, 419 U.S. at 267; United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1872).3 Although there is some support in the case law and historical precedent for congressional power in certain limited circumstances to effect the same result that would flow from an exercise of the President’s pardon power, these circumstances are limited to those involving prospective grants of am­ nesty or immunity, or restoration of civil rights, to persons who have not yet been subjected to prosecution by the executive.4 In no case we have found has Congress been held to have the power through self-executing legislation to grant relief in the form of remission of a prison sentence or monetary fine to individuals who have been convicted of violating a criminal statute.5 We know of only one previous occasion on which Congress has even attempted to legislate the release of convicted individuals. In S. 1145, a bill introduced in the 94th Congress to provide amnesty to persons who failed to register for the draft, included a provision directing the release from prison of 2 T here has been considerable discussion o f and confusion over the difference betw een pardon and amnesty. See , e.g.. Freem an, A Historical Justification and Legal Basis fo r Amnesty Today, 1971 Ariz. St. U. L.J. 515, 5 2 4 -5 2 7 (1971). As a general matter, am nesty is understood as referring only to preprosecution relief extended to w hole classes o r communities. The relief available through the President’s pardon pow er may o f course include this anticipatory immunity o r forgiveness, but is not so limited. See United States v. Klein , 80 U .S. (13 W all.) 128 (1872) (President's p o w er to offer am nesty to form er rebels); 20 Op. Att*y Gen. 330 (1892) (P re sid e n t's pow er to extend gen eral am nesty to persons residing in Utah who had been guilty of polygam y). 3 C ongress has been held to have the p o w er to enact law s em pow ering executive officers other than the P resident (though responsible to him) to rem it fines o r penalties incurred for violations o f the law. See The Laura, 114 U .S. 411 (1885). 4 F o r exam ple, in the post-C ivil War p e rio d Congress enacted several pieces o f legislation restoring civil rights to fo rm er rebels. Indeed, its pow er to take such action is specifically recognized in the Fourteenth A m endm ent. See U .S. C onst, amend. X IV , § 3. In Brown v. Walker, 161 U.S. 593 (1896), the Suprem e Court upheld a statute requiring witnesses subpoenaed in connection with Interstate Com m erce Commission proceedings to testify in return for a g ra n t o f absolute im m unity from any subsequent prosecution. See Burdick v. United States , 236 U.S. 79, 9 4 (1915), describing the “substantial’* differences betw een “ legislative im m unity” and a Presidential pardon. s A num ber o f state courts have held th at acts o f general am nesty passed by the legislature are invalid as an invasion o f th e e x ecu tiv e’s pardoning p o w er. See 20 O p. A tt’y Gen. 330 (1892) (collecting cases). 94 persons convicted and serving a sentence for so failing to register. The Depart­ ment testified in opposition to this legislation, taking the position that Congress has no power to effect release from prison, through legislation or otherwise, and that it may not encroach upon the President’s power in this regard. See Memorandum from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel to the Assistant Attorney General, Criminal Division (May 13, 1975).6 In sum, insofar as S. 2214 would have the effect of voiding or modifying in any respect criminal penalties imposed as a result of violations of the Ethics in Government Act, we believe it exceeds Congress’ power to legislate, and would be an unconstitutional intrusion on the President’s pardon power.7 D o u g l a s W. K m i e c Deputy Assistant Attorney General Office o f Legal Counsel 6 This O ffice also objected on the same grounds to provisions o f the bill granting im m unity to those who failed to register and to deserters, requiring the dism issal o f all pending legal proceedings against such persons, and allow ing persons serving a term o f reconciliation service pursuant to President F o rd 's C lem ency Proclam ation 8313 to be released from such service. We did not object to provisions o f the bill that granted an honorable discharge to all such persons who had served in the arm ed forces, and restoring the citizenship o f form er citizens who had renounced their citizenship because o f disapproval o f United States involvem ent in Indochina. W ith respect to the latter act, w e rem arked that <4[t]o restore the original citizenship o f such persons may be an act o f amnesty, but it is certainly not the constitutional equivalent o f an A rticle II ‘pardon.’” M emorandum from M ary C. Lawton, D eputy A ssistant A ttorney G eneral, Office o f Legal Counsel to the Assistant Attorney G eneral, Criminal Division (M ay 13, 1975). As authority for such a legislative enactm ent, we cited C ongress' plenary pow er over citizenship and naturalization under A rticle I, § 8, cl. 4 o f the C onstitution. 7 It could also be argued that such legislation would infringe the courts' pow er to interpret and apply the law, and intrude upon the integrity o f the ju d icial process. Compare United States v. Klein , 80 U.S. at 146—47 (legislation attem pting to w ithdraw c o u rt's jurisdiction to consider the effect o f a Presidential pardon infringes judicial pow er and violates principle o f separation o f pow ers) with Ex Parte Grossman, 267 U.S. 87 (1925) (upholding a Presidential pardon o f a contem pt o f court against an argum ent that it violated separation of powers). 95

Write a legal research memo on the following topic.

Office of Government Ethics Jurisdiction Over the Smithsonian Institution The authority of the Office of Government Ethics to administer the Executive Branch ethics program under the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian Institution or its personnel. February 29, 2008 MEMORANDUM OPINION FOR THE DIRECTOR OFFICE OF GOVERNMENT ETHICS The Ethics in Government Act of 1978 (“EIGA”), Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 5 U.S.C. app., EIGA §§ 101–111, 401–408, 501– 505 (2000 & Supp. V 2005)), established the Office of Government Ethics (“OGE”) and charged it with developing and implementing ethics policies for the Executive Branch. You have asked whether the Smithsonian Institution and its personnel (the “Smithsonian” or “Institution”) are subject to OGE’s authority to administer the Executive Branch ethics program. 1 We conclude that they are not. I. With limited exceptions not applicable here, OGE’s jurisdiction does not extend to an entity outside the Executive Branch. The text and structure of EIGA unmistakably support this conclusion. EIGA clearly indicates that the Executive Branch is the focus of OGE’s jurisdiction. EIGA establishes a tripartite structure for the federal government’s ethics program that tracks the Constitution’s three-branch structure. Title I of EIGA, which governs financial disclosure requirements for federal officials and employees, creates a separate “supervising ethics office” for each of the three branches. It specifies that OGE is the “supervising ethics office . . . for all executive branch officers and employees,” 5 U.S.C. app., EIGA § 109(18), and authorizes its Director (along with certain agency officials) to administer financial disclosure requirements for Executive Branch officials and employees, id. § 111(1). EIGA provides that the ethics committees in the Senate and House of Representatives perform those functions for members of Congress, “officers and employees” of the two houses, and “employees of the legislative branch,” id. § 109(18)(A), (B); id. § 111(2); and the Judicial Conference does so “for judicial officers and judicial 1 See Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Robert I. Cusick, Director, Office of Government Ethics (Apr. 26, 2007) (“OGE Letter”). We also have received the views of the Smithsonian Institution. See Letter for John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, from John E. Huerta, General Counsel, Smithsonian Institution (May 11, 2007) (“Smithsonian Letter”). 56 Office of Government Ethics Jurisdiction Over the Smithsonian Institution employees,” id. § 109(18)(C); id. § 111(3). Title V of EIGA, which imposes restrictions on outside sources of income or employment by high-level federal employees, distributes administrative and regulatory authority in the same manner; OGE is directed to issue rules and regulations to implement its provisions “with respect to officers and employees of the executive branch.” Id. § 503(2). EIGA directs OGE to develop and implement ethics policies for the Executive Branch. Title IV of EIGA, which constitutes OGE’s “organic law,” OGE Letter at 2, authorizes OGE’s Director to “provide . . . overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency.” Id. § 402(a). The Director’s duties include, among other things, developing rules and regulations to address conflicts of interest and ethics in the Executive Branch, id. § 402(b)(1)–(2), monitoring Executive Branch compliance with financial disclosure and reporting requirements, id. § 402(b)(3)–(5), and ensuring that executive agencies develop and implement appropriate ethics rules, id. § 402(c)–(f). Other authorities also direct OGE to oversee Executive Branch ethics programs. Sections 7351 and 7353 of title 5 of the United States Code authorize OGE to implement statutory restrictions on gifts to federal employees and gifts from federal employees to their superiors by issuing regulations “for all executive branch officers and employees.” 5 U.S.C. §§ 7351(c), 7353(b), (d) (2000 & Supp. V 2005). And the President has delegated OGE authority under 5 U.S.C. § 7301 (2000) to “prescribe regulations for the conduct of employees in the executive branch.” Exec. Order No. 12731, § 403, 3 C.F.R. 306, 310 (1990 Comp.). Thus, the authorities that created OGE and articulate its jurisdiction and responsibilities make clear that, with limited exceptions not implicated here, OGE supervises only entities and employees in the “executive branch.” 2 The term “executive branch” is defined for purposes of title I of EIGA as follows: For the purposes of this title, the term . . . “executive branch” includes each Executive agency (as defined in section 105 of title 5, United States Code), other than the Government Accountability Office, and any other entity or administrative unit in the executive branch . . . . 2 Under 18 U.S.C. § 208(b)(2) and (d)(2) (2000), OGE is authorized to issue regulations exempting employees from a criminal conflict of interest statute that applies to “an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or employee of the District of Columbia, including a special Government employee.” Id. § 208(a). You have not asked us to consider any issues regarding the application of section 208 to the Smithsonian or the extent of OGE’s authority under that provision. See OGE Letter at 2 n.1. 57 Opinions of the Office of Legal Counsel in Volume 32 5 U.S.C. app., EIGA § 109. OGE has adopted a similar definition in its regulations implementing title IV: Executive branch includes each executive agency as defined in 5 U.S.C. 105 and any other entity or administrative unit in the executive branch. However, it does not include any agency, entity, office or commission that is defined by or referred to in 5 U.S.C. app. 109(8)–(11) of the Act as within the judicial or legislative branch. 5 C.F.R. § 2638.104 (2006); see also 5 U.S.C. app., EIGA § 109(8)–(11) (defining the terms “judicial employee,” “Judicial Conference,” “judicial officer,” and “legislative branch”). We see no reason to believe that Congress intended that the term would have another meaning under the other authorities providing OGE with jurisdiction over “executive branch” officers and employees. See Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1251 (10th Cir. 2000) (“It is a well recognized rule of statutory construction used to determine legislative intent that ordinarily identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning in the absence of anything in the context to indicate that a different meaning was intended.”) (quotation marks omitted). The definition of “executive branch” set forth in title I provides that the term “includes each Executive agency as defined in 5 U.S.C. 105.” Section 105’s definition is also referenced in title IV of the Act. See 5 U.S.C. app., EIGA § 402(a) (stating that the Director shall provide “overall direction of executive branch policies” related to preventing conflicts of interest on the part of “officers and employees of any executive agency, as defined in section 105 of title 5, United States Code”); cf. Exec. Order No. 12731, § 503(c), 3 C.F.R. at 310 (“‘Agency’ means any executive agency as defined in 5 U.S.C. 105 . . . .”). 3 The clear focus of section 105 is on Executive Branch entities: “an Executive department, a Government corporation, and an independent establishment.” 5 U.S.C. § 105 (2000). All “Executive department[s]” are within the Executive Branch. See 5 U.S.C. § 101 (2006); see also Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995) (referencing the “exclusive list of Executive departments” in 5 U.S.C. § 101). Similarly, the term “independent establishment” is defined as “(1) an establishment in the executive branch,” and “(2) the Government Accountability Office.” 5 U.S.C. § 104 (2006). The definitions in both title I of EIGA and the regulations implementing title IV, however, explicitly exclude from their reach the Government Accountability Office, which is a Legislative Branch agency, see Bowsher v. Synar, 478 U.S. 714, 730–32 (1986). While the definition of “Government 3 The term “Executive agency” itself plainly suggests agencies within the Executive Branch. Although the term does encompass at least one agency in the Legislative Branch—the Government Accountability Office—it does so only by virtue of an explicit statutory provision, 5 U.S.C. § 104(2) (Supp. V 2005), that tends to underscore that GAO would not otherwise come within the scope of the term. 58 Office of Government Ethics Jurisdiction Over the Smithsonian Institution corporation” in 5 U.S.C. § 103 (2000) is not necessarily limited to Executive Branch entities, this Office has opined that the Smithsonian is not a “Government corporation” for purposes of a similar definition of “agency” under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f)(1) (2000). Memorandum for Peter Powers, General Counsel, Smithsonian Institution, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Coverage of the Smithsonian Institution by Certain Federal Statutes at 10 (Feb. 19, 1976) (“Ulman Memorandum”); see also Status of National Veterans Business Development Corporation, 28 Op. O.L.C. 70, 73 n.4 (2004) (explaining that “the understanding of [“Government corporation” and “Government controlled corporation”] reflected in the FOIA cases is . . . relevant” to the definition of those terms in 5 U.S.C. § 103); Rivera v. Heyman, 982 F. Supp. 932, 938 (S.D.N.Y. 1997) (holding that the Smithsonian is not a government corporation for purposes of 5 U.S.C. § 103), rev’d in part on other grounds, 157 F.3d 101 (2d Cir. 1998); cf. Dong v. Smithsonian Inst., 125 F.3d 877, 879 (D.C. Cir. 1997) (stating that there is “much force” to the Smithsonian’s claim that it is not a “Government controlled corporation” but finding it unnecessary to resolve the issue). Moreover, the phrase “executive agency as defined in 5 U.S.C. 105” in section 109 is followed by the catch-all phrase “any other entity or administrative unit in the executive branch,” confirming that Congress understood the term “Executive agency” to be within that category. The D.C. Circuit applied this principle, which it termed “reverse ejusdem generis,” in a similar context. Construing the definition of “agency” within the Privacy Act, 5 U.S.C. § 552a (2000 & Supp. V 2005)— “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government,” id. § 552(f)(1) (2000)—the court held that the phrase applied only to establishments in the Executive Branch. Dong, 125 F.3d at 879–80. The court reasoned, “Congress evidently viewed the four specified classes as examples of ‘establishments in the executive branch,’ so that an entity clearly outside the executive branch would not qualify even if it could otherwise be shoehorned into the concept of a ‘Government controlled corporation.’” Id. at 879. This Office found that argument compelling in construing the same definition in the Ulman Memorandum, where we stated that the argument “lend[s] considerable credence to the contention that an authority must be within the Executive branch in order to be covered by” the Privacy Act. Id. at 4–5. We therefore conclude that, with limited exceptions not applicable here, OGE’s jurisdiction does not extend to an entity outside the Executive Branch, regardless of whether that entity otherwise meets the definition of “executive agency” found in 5 U.S.C. § 105. 59 Opinions of the Office of Legal Counsel in Volume 32 II. The question thus becomes whether the Smithsonian is within the Executive Branch of the government for purposes of EIGA. We conclude that it is not. This Office previously has described the Smithsonian Institution as a “very unusual entity,” a “historical and legal anomaly,” Memorandum for the Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: S. 653, a [sic] Act to Establish a Foundation for the Advancement of Military Medicine at 1 (May 23, 1983); that occupies an “anomalous position in the Government,” Memorandum for Drew S. Days, III, Assistant Attorney General, Civil Rights Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Mar. 20, 1978) (“Status of GPO and Smithsonian”); “sui generis,” Garnishment of Remuneration Paid to Federal Employees, 3 Op. O.L.C. 274, 277 (1979); and “unique unto its own terms,” Ulman Memorandum at 9; accord Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: President’s Removal Power over Certain Appointees at 8 (Aug. 8, 1983) (“President’s Removal Power”). On occasion, we have suggested that the Smithsonian is a “congressional agenc[y]” that operates “in aid of the legislative process.” See The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 172 (1996) (stating that the Smithsonian “fit[s] under a broad construction of that concept”); cf. Ulman Memorandum at 5 (“[I]t could be argued that the Smithsonian is . . . an arm of the Congress itself . . . .”). Others have classified it as a creature of the government of the District of Columbia. See, e.g., David P. Currie, The Smithsonian, 70 U. Chi. L. Rev. 65, 67–68 & n.14 (2003). Others have described the Smithsonian as “a private institution under the guardianship of the [federal] Government.” The Status of the Smithsonian Institution under the Federal Property and Administrative Services Act, 12 Op. O.L.C. 122, 123 (1988) (quoting Chief Justice Taft as Chancellor of the Smithsonian’s Board of Regents); see also Ulman Memorandum at 5 (“it could be argued that the Smithsonian is . . . a body entirely separate from the government of the United States utilized to fulfill trust obligations”); Dong, 125 F.3d at 879 (suggesting that the Smithsonian might accurately be classified as “a testamentary trust res”). We have advised that “[t]he unique nature of the Smithsonian counsels reluctance toward a sweeping declaration of the Smithsonian’s status within the federal government. The wiser course, which we and others have followed, is to focus upon the position of the Smithsonian within a precise statutory scheme.” Status of the Smithsonian Institution, 12 Op. O.L.C. at 123–24. We follow that course today. The history of the Smithsonian suggests that Congress created the entity outside the Executive Branch. In 1836, Congress enacted legislation to accept the bequest of James Smithson, a wealthy English scholar and scientist, who bequeathed all his property to the United States to found “an Establishment for the increase and 60 Office of Government Ethics Jurisdiction Over the Smithsonian Institution diffusion of knowledge among men.” Smithsonian Letter at 3 (quoting Smithson will). See generally Act of July 1, 1836, ch. 252, 5 Stat. 64; The Smithsonian Legacy to the United States, 3 Op. Att’y Gen. 383 (1838). In 1846, Congress created the Institution as an “establishment” to “have perpetual succession,” see Act of Aug. 10, 1846, ch. 178, § 1, 9 Stat. 102, 102, created a Board of Regents to conduct the business of the Institution consistent with the terms of the Smithson will, id. § 3, 9 Stat. at 103, and provided that the funds would be held in the Treasury to support the Institution, id. § 2, 9 Stat. at 102. It appears that Congress accepted the bequest and established the Institution under its constitutional power to legislate for the District of Columbia, see U.S. Const. art. I, § 8, cl. 17. 1 The Smithsonian Institution: Documents Relative to Its Origin and History, 1835–1899, at 396 (William J. Rhees ed., 1901) (“There was but one power in the Constitution under which this charity could be administered, and that was as a local legislature for the District of Columbia.”) (statement of Rep. Alexander D. Sims, Apr. 28, 1846); id. at 560 (“[T]he action of Congress in accepting the bequest, and agreeing to carry it into execution, was justified at the time on the ground of its peculiar and complete jurisdiction over the District of Columbia.”) (quoting House Committee Report, Mar. 3, 1855). It seems unlikely that Congress would have relied on this particular power—to act as a local legislature for the federal seat of government—if it had intended to establish the Smithsonian within the Executive Branch of the national government. At the time of the Smithsonian’s founding, many doubted that the Executive Branch had the constitutional authority to administer such a charitable trust. Id. at 130 (suggesting that the Executive lacked authority to “assum[e] and fulfill[] . . . the high and honorable duties involved in the performance of the trust committed with it”) (quoting report of House select committee, Jan. 19, 1836); see also id. at 471 (“The Smithsonian Institution is not a department of the Government . . . .”) (statement of Sen. Jefferson Davis) (Jan. 30, 1851); Status of the Smithsonian Institution, 12 Op. O.L.C. at 123 (quoting Chief Justice Taft’s statement, made as Chancellor of the Smithsonian’s Board of Regents, that “the Smithsonian Institution is not, and never had been considered a government bureau”). Congress’s intent to establish the Smithsonian outside the Executive Branch is clear from its governing structure. The President appoints none of the Institution’s seventeen board members. Fifteen of its members are either members of Congress or congressional appointees; its remaining members are the Chief Justice and the Vice President. 20 U.S.C. §§ 42–43 (2000). As the D.C. Circuit has observed, “if the Smithsonian were to wield executive power, the method by which its Regents are appointed would appear to violate the Constitution’s separation of powers principles.” Dong, 125 F.3d at 879; Ulman Memorandum at 5 (“[I]f the Smithsonian were an ‘executive agency’ this mode of appointment might raise serious constitutional questions, in the sense that the Congress cannot appoint executive officers . . . .”). In addition, if the Board of Regents exercises a portion of the sovereign power of the United States, this manner of selection would violate the 61 Opinions of the Office of Legal Counsel in Volume 32 Appointments Clause, which vests in the President alone the power to appoint “all . . . Officers of the United States” and does not permit Congress to appoint even “inferior Officers.” U.S. Const. art. II, § 2, cl. 2. It would also run afoul of the Incompatibility Clause, which forbids members of Congress from holding “any Office under the United States.” Id. art. I, § 6, cl. 2. Moreover, the President exercises no control over the Smithsonian and has no power to remove its board members. See Dong, 125 F.3d at 879 (“[T]here is no evidence that the Secretary of the Smithsonian answers to the President . . . .”); Ulman Memorandum at 5 (Smithsonian is “under no executive power of control or appointment whatever”). Instead, Congress presumably retains the ability to remove those members it appoints. See generally President’s Removal Power at 3 (“[T]he fundamental principle applicable in removal cases is that, absent contrary indications, the power to appoint implies the power to remove.”). Indeed, Congress did remove and replace a board member at least once in the Smithsonian’s history. See Act of Feb. 21, 1863, Pub. Res. No. 37-21, 12 Stat. 825 (removing and replacing a Board member for “giving aid and comfort to” the Confederacy). If the Smithsonian were in the Executive Branch, the President’s inability to supervise its operation through removal of its Board members, and Congress’s authority over the Institution, would implicate fundamental separation of powers principles. Dong, 125 F.3d at 879; see generally Bowsher, 478 U.S. at 726, 730. Finally, structural and functional aspects of EIGA indicate that the Smithsonian is not part of the Executive Branch for purposes of the Act. As noted above, OGE is the supervising ethics office for the Executive Branch, while the Legislative and Judicial Branches have their own supervising ethics offices. Members of Congress and the Chief Justice fill seven of the positions on the Institution’s Board of Regents. If the Smithsonian fell within OGE’s jurisdiction, OGE would exercise authority over members of Congress and the Chief Justice in their capacity as Regents. Moreover, OGE’s ability to conduct its ethics programs under title IV of EIGA ultimately relies on the President’s authority to supervise the Executive Branch. OGE’s Director is required to monitor compliance with EIGA’s requirements and may order an agency or its employees under OGE’s jurisdiction to take corrective action when necessary. 5 U.S.C. app., EIGA § 402(b)(9). If the OGE Director concludes that an agency has not adequately investigated or dealt with an ethics violation, or if an agency head is himself the subject of an investigation, the Director is to report directly to the President. Id. § 402(f)(1)(B), (f)(2)(A)(ii)–(iv), (f)(3)(B). Those notification provisions would make little sense if applied to entities and persons, such as the Smithsonian and its board members, over which the President has no removal or disciplinary authority. See S. Rep. No. 100-392, at 16 (1988) (report on reauthorization of OGE) (“[I]n the final analysis, the OGE Director’s enforcement authority lies with his or her powers of persuasion and ability to appeal to the President and the public.”) (emphasis added). 62 Office of Government Ethics Jurisdiction Over the Smithsonian Institution While the Smithsonian’s place in the taxonomy of government may not be entirely clear, it is certainly not within the Executive Branch for purposes of EIGA. 4 See Status of GPO and Smithsonian at 2 (“The Smithsonian Institution is not within the Executive branch of the Government.”); Ulman Memorandum at 5 (“It is readily apparent that the Smithsonian, . . . under no executive power of control or appointment whatever, is not within the Executive branch.”). Therefore, we conclude that OGE’s authority to administer the Executive Branch ethics program does not extend to the Smithsonian. III. Our conclusion that OGE does not supervise the Smithsonian under EIGA is consistent with longstanding practice. Before EIGA’s passage, standards of ethical conduct for Executive Branch employees were governed by Executive Order 11222, 3 C.F.R. 130 (1965 Supp.). That order outlined rules relating to conflicts of interest, outside employment, receipt of gifts, and financial disclosure, to be administered by agency heads and the Civil Service Commission. The Institution first adopted standards of conduct in October 1961. Smithsonian Letter at 2. Shortly after issuance of the Executive Order, the Smithsonian issued revised standards “[p]ursuant to and in conformity with sections 201 through 209 of the United States Code, Executive Order 11222,” and the regulations implementing the order, “set[ting] forth minimum standards of conduct” for Smithsonian employees. Smithsonian Institution Standards of Conduct, 31 Fed. Reg. 4512 (Mar. 17, 1966). Those regulations were published annually in the Code of Federal Regulations. See 36 C.F.R. pt. 500 (1966–1983). Shortly after Congress enacted EIGA, the Smithsonian sought OGE’s opinion about whether its board members and employees were subject to the financial disclosure requirements of EIGA. OGE concluded that, because the Smithsonian was not in the Executive Branch, EIGA’s disclosure requirements for Executive Branch employees did not apply. Memorandum for Peter G. Powers, General Counsel, Smithsonian Institution, from Bernhardt K. Wruble, Director, Office of 4 We do not address whether the Smithsonian might be deemed part of the federal government or an executive agency for other statutory purposes. In a 1988 opinion, for example, this Office concluded that the Smithsonian was an “executive agency” for purposes of the Federal Property and Administrative Services Act (“Property Act”). The Status of the Smithsonian Institution under the Federal Property and Administrative Services Act, 12 Op. O.L.C. 122 (1988). That determination rested on the Property Act’s particular legislative history. Section 201(c) of the Property Act, which granted authority to “any executive agency,” replaced an earlier statute that had explicitly covered the Smithsonian. Because the legislative history of section 201(c) indicated that it was meant to “preserve all . . . existing authority,” we concluded that the Smithsonian was included within its reach. Id. at 126 (quotation marks omitted). By contrast, there is no indication that the Executive Branch ethics program that existed before EIGA was meant to encompass the Smithsonian. See Exec. Order No. 11222, 3 C.F.R. 130 (1965 Supp.); see generally S. Rep. No. 95-170, at 28–31 (1977) (describing the ethics program that existed before EIGA). 63 Opinions of the Office of Legal Counsel in Volume 32 Government Ethics, Re: Ethics in Government Act of 1978 (Apr. 13, 1979). OGE informally reaffirmed that conclusion in 1990, see OGE Letter at 6, and continues to abide by it today. Thus, during the thirty years since enactment of EIGA, OGE has not asserted jurisdiction over the Smithsonian or its personnel. OGE has not sought—nor has the Smithsonian submitted—an annual ethics program report, as required of executive agencies under 5 U.S.C. app., EIGA § 402(e). Nor has the Smithsonian sought OGE’s guidance in resolving ethics questions. See OGE Letter at 6–7; Smithsonian Letter at 1. Following the passage of EIGA, the Smithsonian continued to publish its own ethics regulations, which did not refer to OGE or EIGA. The Institution ceased to publish the regulations in 1984. The Smithsonian’s General Counsel explained: The Smithsonian Institution is not a government agency as that term is traditionally used, but for a number of years the Standards of Conduct for Smithsonian employees . . . have been published in the format of government agency regulations as Part 500 . . . of Title 36 of the Code of Federal Regulations. Part 500 . . . [is] obsolete and [is] being removed from Title 36 of the Code of Federal Regulations. Henceforth, in keeping with the Institution’s status, current Standards of Conduct for Smithsonian employees . . . will be promulgated internally . . . . 49 Fed. Reg. 9171 (Mar. 12, 1984); see also Smithsonian Institution, Smithsonian Directive 103, Smithsonian Institution Standards of Conduct (Feb. 13, 2006) (current ethics standards). Since then, Congress has amended EIGA and reauthorized OGE without modifying the definitions of “executive branch” or “executive agency,” and without taking other action to bring the Smithsonian within OGE’s jurisdiction. See, e.g., An Act to Reauthorize the Office of Government Ethics, Pub. L. No. 100-598, 102 Stat. 3031 (1988); Office of Government Ethics Authorization Act of 1996, Pub. L. No. 104-179, 110 Stat. 1566; see also An Act to Amend the Ethics in Government Act of 1978, Pub. L. No. 98-150, 97 Stat. 959 (1983). Congress’s repeated decisions not to amend the scope of OGE’s jurisdiction provide further evidence that Congress did not intend for the Institution to be under the supervision of OGE. See Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change . . . .”). JOHN P. ELWOOD Deputy Assistant Attorney General Office of Legal Counsel 64

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission T he N ational G am bling Im pact Study C om m ission is not an “ independent” agency for purposes o f a crim inal conflict o f interest statute, 18 U.S.C. § 208. January 26, 1999 M em orandum G O p in io n f o r t h e eneral S e r v ic e s A A c t in g G eneral C ou nsel d m in is t r a t io n You have asked whether a criminal conflict of interest statute, 18 U.S.C. §208 (1994), applies to the National Gambling Impact Study Commission (“ Commis­ sion” ).1 The Commission was established by the National Gambling Impact Study Commission Act (“ Act” ), Pub. L. No. 104—169, §3(a), 110 Stat. 1482 (1996) (codified as amended at 18 U.S.C. § 1955 note (Supp. IV 1998)), in order to “ con­ duct a comprehensive legal and factual study of the social and economic impacts of gambling in the United States.” Id. § 4(a)(1). The Commission consists o f nine members, of whom six are appointed by Congress (three by the Speaker of the House and three by the Majority Leader of the Senate), and three are appointed by the President. Id. § 3(b)(l)(A)-(C). The appointing authorities are to consult among themselves to ensure that the Commission’s membership reflects, “ to the maximum extent possible, fair and equitable representation of various points of view” with respect to the Commission’s inquiry. Id. § 3(b)(3). The congressional leadership also has the predominant role in selecting the Chair of the Commission. Id. § 3(b)(5)(A). The Commission’s responsibilities are investigatory and advisory: not later than two years after its first meeting, it must submit to the President, Congress, State governors and Native American tribal governments “ a com­ prehensive report of [its] findings and conclusions, together with any recommenda­ tions” it may decide to make. Id. §4(b). The Commission has powers to hold hearings, issue subpoenas, secure information directly from Federal agencies, employ personnel and contract with the Advisory Commission on Intergovern­ mental Relations and the National Research Council. Id. §§5, 6, 7. Sixty days after submitting its final report, the Commission is to terminate. Id. § 10. Section 208 was enacted in 1962 as part of a general revision of the conflict of interest laws. Pub. L. No. 87-849, § l(a), 76 Stat. 1119, 1124 (1962). In gen­ eral, 18 U.S.C. § 208(a) provides that, subject to certain exceptions, “ whoever, being an officer or employee of the executive branch of the United States Govern­ ment, or of any independent agency of the United States . . . participates person­ ally and substantially as a Government officer or employee, . . . [in a] particular matter in which, to his knowledge, he . . . has a financial interest,” shall be 1 S ee L e tte r for D aw n Johnsen, A cting A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, fro m Em ily C . H ew itt, G eneral C ounsel, G eneral S ervices A dm inistration (N ov. 7, 1997) ( “ G SA L etter” ) 29 Opinions o f the Office o f Legal Counsel in Volume 23 subject to the criminal and civil penalties provided in §216 of title 18. We have previously concluded that the Commission is not within the executive branch.2 Thus, the sole substantive question to be considered here is whether the Commis­ sion is an “ independent” agency for purposes of § 208.3 We conclude that it is not. Although the reach of §208’s reference to “ inde­ pendent” agencies is not clear, and the legislative history is unhelpful (see Part I.A below), the Commission falls outside any likely construction of that section. As we discuss in Part I.B below, the Commission does not resemble the agencies whose “ independence” from Presidential control was upheld by the Supreme Court in two major cases that preceded the enactment of §208 — Humphrey’s Executor v. United Statesk, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958). Nor, as we discuss in Part I.C below, do the Commissioners enjoy any form of protection from removal under the Act — and tenure protection is, for many purposes, a recognized test of “ independence.” Finally, as we discuss in Part II below, there is no other affirmative evidence, whether in the text of the Act or otherwise, that Congress intended the Commission to be regarded as “ independent” for purposes of § 208. I. Section 208 applies to “ an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States.” 18 U.S.C. § 208(a). There are at least two possible explanations for Congress’s decision to distinguish between the executive branch and “ independent” agencies in this context. First, Congress may have intended § 208 to reach all agencies of the Govern­ ment other than those within the legislative or judicial branch. “ [Independent” agencies on this account would be those agencies that, under the Supreme Court’s older jurisprudence, might have been considered to be “ hybrid” agencies, outside the executive branch and performing “ quasi-legislative” or “ quasi-judicial” func­ tions.4 Under present Supreme Court doctrine, such “ independent” agencies are 2 S ee L e tte r for M s. K ay C o le Jam es, C hairperson, N ational G am blin g Im pact Study C om m ission, from R ichard L. S h iffrin , D e p u ty A ssistant A ttorney G eneral, O ffice o f Legal C ou n sel (A ug. 13, 1997). In su p p o rt o f th at co n c lu ­ sio n , w e o b serv ed that th e m ajority of the C o m m issio n ers w ere congressio n ally appointed; that the congressional le ad ersh ip co n tro lle d the ch o ice o f the C om m ission’s C hair; and th a t the C om m ission carried o u t only inform ationg ath erin g an d ad visory functions, w hich need n o t be perform ed b y the ex ecu tiv e branch. Id at 1 W e fu rther po in ted o ut th a t “ [u ]n d er th e D ep artm en t’s precedents, w e regard such com m issio n s as o u tsid e the ex ecu tiv e branch. . . . In d eed , even w h ere th e con g ressio n al leadership appoints less than a m ajority o f m em bers, a com m ission su ch as [this] m ay b e o u tsid e th e e x e cu tiv e branch.” Id. (citing precedents). W e rem ain persuaded that the C om m ission is o u tsid e th e e x e cu tiv e branch. 3 T h e C o m m issio n is un d o u b te d ly an “ ag e n cy ” w ithin the “ exp an siv e d efin itio n ” o f 18 U S.C . § 6 , w hich d efines “ a g e n c y ” fo r p u rp o ses o f title 18 to include “ any . . c o m m issio n .” M em orandum O pinion f o r the C o m p tro ller G en era l o f th e U n ite d S ta te s' C onflict o f Interest — 18 U .S C. § 2 0 7 — A pp lica b ility to the G en era l A cco u n tin g O ffice, 3 O p . O L .C 433, 4 3 4 (19 7 9 ) ( “ G A O O pinion” ) 4 T h is h as o ften b een ch a ra cte rized as the v iew that there is “ a headless ‘fourth b ran ch ’ o f g o vernm ent co n sistin g o f in d e p e n d e n t agencies having significant d u tie s in both th e legislative and executive b ran ch es b ut residing not en tire ly w ith in e ith e r.” A m eron, In c v U S A r m y C orps o f E ngineers, 787 F 2 d 875, 886 (3d C ir. 1986). S e e also 30 Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission considered to be parts of the executive branch, although the President’s powerto remove agency heads may be restricted in certain ways. See Morrison v. Olson, 487 U.S. 654, 689-91 (1988) (interpreting cases on tenure protection for officials of independent agencies as hinging on whether protection impaired President’s duty to execute the laws). Congress could have understood the term “ independent agency” in 1962, however, to refer to agencies that we would now consider to be part of the executive branch. On that understanding, § 208 would apply to the executive branch, including agencies within the executive whose heads enjoy some degree of protection from presidential removal, and that may have been viewed in 1962 as outside the executive branch;5 but it would not apply to the legislative or judicial branches. Alternatively, in referring to “ independent” agencies, Congress may have been recognizing the possibility that some agencies could be regarded as “ inde­ pendent” even while being firmly located within a particular branch. On this reading, §208 would reach not only “ independent” agencies within the executive branch but also any such agencies within the legislative or judicial branches.6 The pre-1962 case law had at least occasionally noted that in order to be “ inde­ pendent,” an agency might need to be protected from congressional, as well as executive, control.7 Moreover, the cases had also suggested that an agency might be, for at least some purposes, “ independent,” while yet belonging to a particular branch.8 Consequently, in applying §208 to “ independent” agencies, Congress id at 892 (B ecker, J , concurring in part); Federal T rade C o m m ‘n v R ubero id C o , 343 U S 470, 487 (1952) (Jack ­ son, J , dissenting). 5 Thus, w e have no doubt that agencies such as the Federal T ra d e C om m ission ( “ F T C ” ), w hich H u m p h rey 's E xecu to r stated “ cannot in any proper sense be characterized as an aim o r an eye o f the ex e cu tiv e ,” 295 U S. at 628, should now be regarded as part o f th e executive branch 6 W e note that the C ourt seem s usually to have understood “ independen t” agencies — for purp o ses o f separation o f pow ers an a ly sis— n o t to encom pass agencies w ithin the legislative or jud icial branches T h u s, the C ourt has said that “ independent” agencies are those w hose statutes “ typically specify eith er that . . . ag en cy m em bers are rem ovable by the P resident for specified causes [such as the FTC] . . or else d o not specify a rem oval pro ced u re [such as the Federal E lection C o m m ission].” B ow sher v. S yn a r, 478 U .S. 714, 725 n.4 (1986) By contrast, a statu te “ that provides for d irect congressional involvem ent o v e r th e decision to rem o v e” the agency head creates an en tity that is not generally an “ independent ag e n cy ” in the constitutional sense. S ee id. T h u s, at least in B ow sher, the C ourt seem ed reluctant to view the C om ptroller G eneral as an “ independent ag e n cy ” for constitutional purposes Such a view w ould not negate the possibility o f considering the C om ptroller G en eral to be “ in d ep en d en t” w ithin the m eaning o f § 2 0 8 — a possibility that w e exam ine in Part I.C below . An agency m ight count as “ in d ep en d en t” un d er a particular statutory schem e w ithout necessarily being “ independent” in the constitutional sen se 7 F or exam ple, W illiam s v. U nited States, 289 U S . 553 (1933), addressed the q u estion w hether a ju d g e o f the C o u rt o f C laim s (a “ le g islativ e” o r “ A rticle I” court) enjoyed the tenure protection afforded to constitutional courts by A rticle 111, Section 1 o f the C onstitution A lthough denying that C ourt o f C laim s ju d g e s enjoyed such constitutional tenure, the S uprem e C o u rt observed that “ [t]he preservation o f [the C ou rt o f C la im s’] independence is a m atter o f public concern T he sole function o f th e court being to decide betw een the g overnm ent and private su ito rs, a condition, on the part o f the ju d g e s, o f en tire dependence upon the le gislative p lea su re fo r the ten u re o f th eir o ffices . . . to say th e least, is not d esira b le.” Id. at 562 (em phasis added). 8 S ee Lathrop v. D onohue, 367 U S 820, 853 (1961) (H arlan, J , concurring in ju d g m en t) (B ureau o f the B udget is “ in dependent” although w ithin the executive branch). S ee also D obson v C om m issioner, 3 2 0 U S 489, 497 (1943) (B oard o f T ax A ppeals w as statutorily designated as “ an independent ag en cy in the ex ecu tiv e branch o f the G o v ernm ent” ); R a ilro a d R etirem ent Bd. v A lton R. C o , 295 U.S 330, 344 (1935) (R ailroad R etirem ent B oard w as “ denom inated an independent agency in the executive branch o f the G o v ern m en t” ), G oldsm ith v. U nited S ta tes C o n tinued 31 Opinions o f the Office o f Legal Counsel in Volume 23 could have had in view those agencies, whether belonging to the executive, legis­ lative or judicial branch, that enjoyed at least some freedom from the control of higher authorities within that branch by virtue of protections against the removal of the agencies’ heads. As discussed below, this account of Congress’s intent has found support in this Office’s prior opinions. We do not believe it is necessary in this memorandum to decide between these alternative readings, because the Commission does not count as “ independent” under either of the alternatives we describe. Furthermore, as we discuss below, there is no evidence that Congress intended it to be considered “ independent.” A. We begin by reviewing the legislative history of § 208. We have found little relevant history on the precise point at issue, and what little history there is sheds almost no light on it. “ Section 208 was modeled on the former section 434 of title 18, which ‘disqualified] an employee of the Government who has an interest in the profits or contracts of a business entity from the transaction of business with such entity.’ ” Applicability o f 18 U.S.C. §208 to the Federal Communications Commission’s Representative on the Board o f Directors o f the Telecommuni­ cations Development Fund, 21 Op. O.L.C. 96, 98 (1997) (citation omitted). Sec­ tion 434 had made no express reference to independent agencies. That reference originated in the general reform o f the major federal conflict of interest statutes made by the Bribery, Graft and Conflicts of Interest Act of 1962, Pub. L. No. 87-849, 76 Stat. 1119. The legislation represented Congress’s response to the perception of several serious inadequacies in those statutes (including §434), among them the fact that they were ‘‘drafted in unnecessarily broad and imprecise ways,” thus creating “ uncertainties as to proper conduct and, to a degree, incon­ sistent practices among the departments and agencies of the Government.” Con­ flict o f Interest Statutes: Intermittent Consultants or Advisers, 42 Op. Att’y Gen. I l l , 112 (1962) (Kennedy, A.G.). While the reference in §208 to “ independent” agencies as well as to the “ executive branch” may have been designed to make the statutory coverage more precise, we have found no explanation of what Congress specifically intended. The House Report on the 1962 law describes § 207(a) (and §§208 and 209) as applying to officers and employees of the ‘executive branch’ or an ‘independent agency,’ without further elaboration. See, e.g., H.R. Rep. No. 748, 87th Cong., 1st Sess. 11, 12, 13, 23, 24 (1961). The Senate Report describes §§207, 208 and 209 as applying to present and former government employees only in very general terms. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in Bd. o f T ax A p p e a ls, 2 7 0 U .S w as w ithin e x e cu tiv e branch). 117, 121 (1 9 2 6 ) (Board o f T ax A ppeals perform ed “ q u asi ju d ic ia l” functions and 32 Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission 1962 U.S.C.C.A.N. 3852. Applicability o f Post-Employment Restrictions on Dealing with Government to Former Employees o f the Government Printing Office, 9 Op. O.L.C. 55, 56 n.3 (1985) (“ GPO Opinion” ). A legal commentator of the time (and participant in the framing of the legislation) observed that §§ 207209 were to apply to officers and employees of independent agencies as well as of the executive branch, but offered no explanation for this innovation. See Roswell B. Perkins, The New Federal Conflict-Of-Interest Law, 76 Harv. L. Rev. 1113, 1123 (1963).9 B. Given that the legislative history of § 208 is unilluminating, we have considered an interpretative approach that draws on the Supreme Court’s pre-1962 jurispru­ dence. This approach is based on the rule of construction that “ [w]hen Congress codifies a judicially defined concept, it is presumed . . . that Congress intended to adopt the interpretation placed on that concept by the courts.” Davis v. Michigan D ep’t o f Treasury, 489 U.S. 803, 813 (1989). At the time of §208’s enactment in 1962, two major Supreme Court cases on “ independent” agencies, Humphrey’s Executor and Wiener, had addressed the constitutionality of statutory limitations on the power of the President to remove agency heads or commissioners. Those cases could serve to explain how §208’s reference to “ independent agencies” should be construed. In Humphrey's Executor, the Court upheld a statute restricting the President’s power to remove a Commissioner of the FTC on grounds of “ inefficiency, neglect of duty, or malfeasance in office.” 295 U.S. at 619. The Court held that the constitutionality of such removal restrictions turned on “ the character of the office.” Id. at 631. The Court viewed the FTC as “ an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” Id. at 628. Such an agency was not “ an arm or an eye of the executive” ; rather, its Commissioners were expected to discharge their functions “ without executive leave and . . . free from executive control.” Id. The powers of the FTC were not “ purely” executive, 9 W e note also that, in 1989, C ongress enacted 18 U S C § 202(e)(1) (1994), w hich provided a defin itio n o f “ executive b ran ch ” ap p licab le to § 2 0 8 Ethics R eform A ct o f 1989, Pub. L N o 101-194, § 4 0 1 , 103 S tat. 1716, 1748. T he definition reaches any “ entity o r adm inistrative unit in th e executive b ran ch ,” but d o es not sp ecifically m ention “ independent ag e n cy ,” w hich is not otherw ise defined. A rguably, som e en tities p reviously covered b y § 208 as “ independent a g e n c [ie s]” w ere, after the am endm ent, covered (in addition o r instead) by the reference to the “ executive branch ” W e do not believe that the am endm ent requires giving the term “ independent ag e n c y ” in § 2 0 8 a broader m eaning than in our analysis, on the ground that otherw ise all “ independent ag en c[ies]” w ould com e w ithin the refere n ce to the “ executive b ran ch ” and the term “ independent agency” w ould be red u n d an t First, there is no evidence indicating that, by defining “ executive b ra n c h ,” C o n g ress intended to enlarge th e ex ten t to w hich § 2 0 8 reaches entities outside the executive branch. Second, if the referen ce is redundant, that m ay m erely reflect C o n g ress’s appreciation o f the changes in the S uprem e C o u rt’s ju risp ru d en ce m arked b y its 1987 d ecision in M orrison T hird, as w e discuss in Part I.C below , som e entities o utsid e the ex ecu tiv e branch could be covered as “ independent agencfies] ” 33 Opinions o f the Office o f Legal Counsel in Volume 23 but were “ quasi-legislative or quasi-judicial.” Id. Insofar as the FTC conducted investigations and reported its findings to Congress, it was acting in a quasi-legislative capacity; insofar as the statute required it to function as a master in chan­ cery, it was acting quasi-judicially. Id. 10 Wiener followed H umphrey’s Executor’s “ sharp line of cleavage between offi­ cials who were part of the executive establishment” and “ those who are members of a body ‘to exercise its judgment without the leave or hindrance of any other official or any department of the government,’ 295 U.S., at 625-626, as to whom a power of removal exists only if Congress may fairly be said to have conferred it.” 357 U.S. at 353. The Court applied that distinction to the President’s removal of a member of the W ar Claims Commission.11 Although the statute creating that body said nothing about removal, the Court inferred that “ Congress provided for a tenure defined by the relatively short period of time during which the War Claims Commission was to operate.” Id. at 352. Looking to “ the nature of the function that Congress vested in the War Claims Commission” to decide whether such an implied removal restriction was valid, id. at 353, the Court found that that agency had been created as “ an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination ‘not subject to review by any other official of the United States or by any court by mandamus or otherwise.’ ” Id. at 354-55 (citation omitted). Because the intent of Congress was to vest the W ar Claims Commissioners “ with adjudicatory powers that were to be exercised free from executive control,” Morrison, 487 U.S. at 688, the implied statutory removal restrictions were constitutional. The Supreme Court’s recent case law casts doubt on the viability of the doctrinal categories used in Humphrey's Executor and Wiener. In particular, the Court now recognizes the “ difficulty of defining such categories of ‘executive’ or ‘quasi­ legislative’ officials,” Morrison, 487 U.S. at 689 n.28.12 Moreover, this Office has found the rationale of Wiener “ questionable.” 13 Nonetheless, the question here is what Congress intended in 1962 when enacting §208, not whether the 10S e e a lso M o rriso n , 487 U .S . at 687 (ex p lain in g H u m p h rey 's E xecutor) ; P ow er o f the P resident to Rem ove M e m b ers o f th e T ennessee V alley Authority F rom O ffice, 39 O p A tt’y G en. 145, 146 (1938) (Jackson, A cting A .G.) (H u m p h r e y ’s E x e c u to r rested on facts that th e F T C “ exercises quasi-leg islativ e and quasi-judicial fun ctio n s and is n o t a p art o f th e ex e cu tiv e b ra n c h ” , Court a ls o stressed leg islativ e history “ m dicaung a p u rp o se o f th e C ongress to se c u re th e m a x im u m ind e p en d en ce of the C o m m issio n from E x ecu tiv e interference and co n tro l” ). 11 T h e W a r C laim s C o m m issio n w as established by the W ar C laim s A ct o f 1948, Pub. L. N o 8 0 -8 9 6 , 62 Stat 1240 Its re sp o n sib ility w as to h ea r and adjudicate certain claim s arising o ut o f enem y co n d u ct d u n n g the Second W o rld W ar. ]2S ee a lso R u b e ro id C o , 343 U .S at 487-88 (Jackson, J , dissenting) l3 77ie C o n s titu tio n a l Sep a ra tio n o f Powers betw een the P resid en t a n d C ongress, 20 O p O .L .C 124, 168 n 115 (1 9 9 6 ) ( “ D ellin g er M em o ra n d u m ” ). Specifically, w e said that “ [t]he rationale o f W iener, w hich is essen tially that C o n g ress m u st h av e im plied a for-cause rem oval restriction w hen th e Court believes that th e functions o f the agency d em an d such te n u re p rotection, 357 U.S at 3 5 3 -5 6 , seem s questionable. T h ere w ould be nothing illogical in a le g islativ e d ec isio n , fo r exam ple, to protect a g a in st review o r revision o f th e decisions o f th e agency, see id. 3 5 4 55, w h ile placin g th e ag e n c y ’s decisionm akers w ithin the control o f the P resident. . . T o the extent that W iener assu m es th a t co n tro l is and o u g h t to be a b in a ry m a tte r— eith er plenary o r non-existent — its reasoning is difficult to reco n c ile w ith m o re recen t separauon o f p o w ers decisions th a t reject su ch an either/or approach to presidential co n tro l. Id. W e n o ted , how ever, that Wiener “ co n tin u es to be fo llo w e d ” in th e lo w er courts Id. 34 Applicability o f 18 U.S C. § 208 to National Gambling Impact Study Commission Constitution admits the possibility of “ hybrid” agencies not belonging to any of the three branches. We think it plausible to suppose that in 1962, Congress would have understood a statutory reference to “ independent agencies” to mean agencies such as the FTC or the War Claims Commission, i.e., agencies that were not then considered to be part of the executive branch, or indeed of any of the three branches. Assuming that such was Congress’s intent, we find that the Commission would not be an “ independent” agency under the standards of Humphrey’s Executor or Wiener. First, unlike the FTC or the War Claims Commission, the Commission exercises no functions that under Humphrey’s Executor and Wiener were consid­ ered to be adjudicatory in nature. Second, the Commission exists solely to conduct a-study and to report its findings and recommendations to Congress, the President, and State and tribal governments.14 Its responsibilities are “ essentially of an inves­ tigative and informative nature, falling in the same general category as those powers which Congress might delegate to one o f its own committees." Buckley v. Valeo, 424 U.S. 1, 137 (1976) (emphasis added). We think that the Commission functions much as a congressional committee does when conducting an investiga­ tion or drafting a legislative proposal based on the information it has gathered; indeed, it seems to us that, given its overall statutory structure, the Commission is a part of the legislative branch.15 It is therefore unlike the “ headless fourth branch” regulatory agency that Humphrey’s Executor took the FTC to be. In summary: because Humphrey’s Executor and Wiener were assuredly “ within the lively knowledge of Congress” when §208 was enacted. Wiener, 357 U.S. at '353, we think that they provide a plausible test of what Congress intended when referring in that section to “ independent agenc[ies].” If that test is applied, then the Commission cannot be counted as “ independent.” C. The paucity of relevant legislative history relating to § 208 leaves open a second possibility: that an agency could be considered independent under the statute if, and only if, its head (or, in cases where the agency has a collective head, the members of that body) enjoys at least some degree of protection against removal from superior officials, whatever the branch to which the agency belongs. In other words, the Congress that enacted § 208 may have perceived some agencies as “ independent” even if they were located in a particular branch (rather than in a putative “ headless fourth branch” ), provided that they resembled the paradig­ 14 “ T his com m ission does not have the pow er to regulate, only to m ake recom m endations It is a study co m m issio n , not a regulatory body ” 142 Cong. Rec. 17,421 (1996) (statem ent o f Sen G lenn). 15 A s discussed above, w e have previously concluded that the C om m ission is not w ithin th e executive branch. See su p ra note 2 W hat branch a com m ission m ay fall in depends on a n um ber o f factors W e do not m ean to suggest here that w henever a com m ission’s m ission is to conduct a study and to rep o rt its findings and reco m m en d a­ tions to C ongress that it is necessarily legislative rath er than executive 35 Opinions o f the Office o f Legal Counsel in Volume 23 matic independent agencies with respect to tenure protection. Accordingly, agen­ cies in the legislative or judicial branches, as well as in the executive, could be counted as “ independent” under §208. In fashioning this interpretation, we again consult the Supreme Court’s pre-enactment case law. We also find support for it in several of this Office’s precedents. As construed by the Supreme Court only a year before § 208 was enacted, its precursor statute, 18 U.S.C. §434 (Supp. II 1946), was said to be designed “ to insure honesty in the Government’s business dealings by preventing federal agents who have interests adverse to those of the Government from advancing their own interests at the expense of the public welfare.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961). The individual with whose conflicted activities the Court was most concerned in Mississippi Valley was a part-time consultant to the Bureau of the Budget (the precursor of the Office of Management & Budget). At the time, the Bureau of the Budget was apparently considered to be in some sense “ independent.” See Lathrop v. Donohue, 367 U.S. at 853 (Harlan, J., concurring in judgment); National F ed’n o f Federal Employees v. Cheney, 883 F.2d 1038, 1045 (D.C. Cir. 1989) (Bureau of Budget was “ quasi­ independent” entity within Treasury Department), cert, denied, 496 U.S. 936 (1990). Nonetheless, the Bureau of the Budget could not have been “ inde­ pendent” in the sense indicated by Humphrey’s Executor and Wiener, if only because the Treasury Department, where the Bureau had been lodged, was plainly within the executive branch.16 It is at least conceivable, therefore, that Congress intended § 208 to apply to certain agencies that were acknowledged to belong to a particular branch, provided that they had a sufficient resemblance to the con­ stitutional paradigms of “ independence.” In particular, since protection against removal has figured in the cases as the key element in defining agency “ independ­ ence,” an agency in the legislative or judicial branch could be “ independent” within the meaning of § 208 if its head enjoyed some form of tenure protection. Cf. Williams, 289 U.S. at 562. Several of this Office’s opinions have reflected this possibility, finding that par­ ticular agencies were to be considered “ independent” for purposes of §208, despite the fact that they were situated within the legislative or judicial branches. To be sure, § 208 does not ordinarily apply to officers or employees of the legisla­ tive and judicial branches.17 Nevertheless, although an agency is within the legis­ lative or judicial branch, we have thought that it might still be considered ‘‘inde­ pendent” for purposes of § 208. Our opinions in this line are relevant to the status o f the Commission under § 208, insofar as it might be argued that the Commission 16 S ee P o w e r o f the P resid en t to Remove M e m b ers o f the T ennessee Valley A u th o rity F rom O ffice, 39 O p A tt’y G en at 146 (u n d er H u m p h r e y ’s Executor, o n ly an agency “ not a p art o f the ex ecu tiv e b ran ch ” could be considered in d e p en d en t fo r sep aratio n o f pow ers analysis). 17 S ee G P O O p in io n , 9 O p. O .L C at 5 6 (discussing leg islativ e history); G A O O pinion, 3 O p. O .L C . at 435 (§ 2 0 8 an d co m panion statutes “ do not by th e ir term s and w ere not intended to apply to officers and em ployees o f th e le g islativ e and ju d ic ia l branches” ). 36 Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission is an “ independent” agency in the legislative branch. As further discussed below, however, that suggestion ultimately lacks merit. Three OLC opinions are relevant. First, in the GAO Opinion, we found that the GAO was, under §208, an “ independent” body not within the executive branch and arguably within the legislative branch. See GPO Opinion, 9 Op. O.L.C. at 57-58 (citing GAO Opinion, 3 Op. O.L.C. 433). The Comptroller General is removable “ not only by impeachment but also by joint resolution of Congress,” Bowsher v. Synar, 478 U.S. at 728, and consequently he or she is an officer of the legislative branch who “ may not be entrusted with executive powers.” Id. at 732. Nonetheless, it remains the case that the governing statute provides that Congress may remove that officer only for a cause such as inefficiency, neglect of duty, or malfeasance. Id. at 728—29. In the GAO Opinion, we analyzed the effect of the tenure protection enjoyed by the Comptroller General, together with other statutory provisions of title 31, on the status of that officer under §208. Without denying that the Comptroller General and the GAO are “ subservient to Congress,” 478 U.S. at 730,18 we found that the statute gave the Comptroller General some measure of “ independence” from Congress, so that GAO officers and employees were properly considered subject to § 208. We said: The establishment of a fixed tenure of office, subject to removal for cause, has generally been regarded as intended to promote an element of independence of action. C f, Humphrey’s Executor v. United States, 295 U.S. 602, 624—26 (1935). Thus, while the Comp­ troller General and GAO are independent of the executive branch, they apparently are expected to be somewhat independent of the legislative branch as well. I therefore am led to conclude that what­ ever their status for other purposes, the Comptroller General and officers and employees of the GAO are officers and employees of an “ independent agency of the United States” for purposes of 18 U.S.C. § 207 — §§ 208 and 209 as well. GAO Opinion, 3 Op. O.L.C. at 436.19 Second, in the GPO Opinion, we concluded that the GPO is not “ independent” for purposes of § 208. We reached that conclusion despite the fact that the Public Printer is presidentially appointed. Our analysis tracked the judicial view that the GPO is an entity within the legislative branch, whose primary function is to pro­ vide support for Congress. See GPO Opinion, 9 Op. O.L.C. at 57.20 The question [* S ee a lso id. at 746 n .l 1 (S tevens, J., concurring in ju dgm ent) (C om ptroller Genera) and G A O “ h av e a fundam en­ tally different relationship w ith C ongress than do independent agencies like th e Federal T rad e C o m m issio n ” ) 19In addition, w e note that form er 31 U S C §41 (a) (1921) (now 31 U .S.C . § 7 0 2 (a) (1994)),-specifically d eclared the G A O to be “ independent” o f th e executive. See G A O O pinion, 3 O p. O .L .C . at 436 20 W e have subsequently review ed the status o f the G P O at som e len g th , and h ave again found that it is an agency w ithin th e legislative branch See Involvem ent o f the G overnm ent P rinting O ffice in E xecutive B ranch Printing C ontinued 37 Opinions o f the Office o f Legal Counsel in Volume 23 o f the Public Printer’s tenure of office was not considered in this opinion, although our conclusion would have been fortified if it had been. The GPO’s statute, 44 U.S.C. §§301-317, vests appointment power of the Public Printer in the President (subject to Senate advice and consent), but is silent as to the Public Printer’s removal. By inference, therefore, the Public Printer can be removed at will by the appointing authority (i.e., the President), and does not enjoy tenure protection. See Dellinger Memorandum, 20 Op. O.L.C. at 172-73 (because the Librarian of Congress — like the GPO, a congressional agency — “ is not protected by an explicit for-cause removal limitation, . . . we therefore infer that the President has at least the formal power to remove the Librarian at will” ). Our conclusion as to the GPO can thus be read to provide some (indirect) support for the view that an agency in the legislative (or judicial) branch is ‘ ‘independent’’ for purposes of § 208 if, but only if, its head enjoys a degree of tenure protection. A third opinion addressing the United States Sentencing Commission falls within this line. See Memorandum for Jamie Gorelick, Deputy Attorney General, from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Sentencing Commission/Conflict Rules at 14 (July 21, 1994) (“ Sentencing Commission Opinion” ). There we found the Sentencing Commis­ sion, which had been established by statute as “ an independent commission in the judicial branch of the United States,” 28 U.S.C. § 991(a) (1994), to be an “ independent” agency under §208; see also Mistretta v. United States, 488 U.S. 361, 384—85, 390, 393 (1989) (Sentencing Commission held an independent agency within judicial branch). Like the GAO and unlike the GPO, the Sentencing Commissioners enjoy some degree of tenure protection: the statute “ grants the President authority to remove members of the Commission, although ‘only for neglect o f duty or malfeasance in office or for other good cause shown.’ 28 U.S.C. § 991(a).” Mistretta, 488 U.S. at 409. Here, too, an agency that was located out­ side the executive branch was found to be “ independent” under §208, and here again the agency head enjoyed tenure protection. In the present case, this test o f “ independence” is not met. Nothing in the Act creating the Commission states or implies that Commissioners are to enjoy any form of tenure protection. On this reading of the statute (which, like the reading outlined in Part I, seems to us a plausible construction), the Commission is not subject to § 208. O f the three OLC precedents considered in this Part, the GPO Opinion, holding § 208 inapplicable, closely fits the circumstances of the Commission. Moreover, the conclusion that the Commission is not ‘ ‘independent’’ for purposes of § 208 under the test considered here harmonizes with our precedents in another respect: it accords with our past view that the section does not cover those who are ‘‘prop­ erly regarded as officers or employees o f the Congress or one of its Houses or a n d D u p lic a tin g , 20 O p. O .L .C . 214 (1996) M o re recently still, w e reaffirm ed the an alysis o f the la tte r m em orandum . S e e G o vern m en t P rinting O ffice Involvem ent in Executive B ranch P rin tin g , 2 0 O p. O L C . 282 (1996). 38 Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission agencies and who are responsible in some immediate sense to the Congress,” such as “ those officers and employees appointed by the Congress or one House thereof to perform functions in aid of the legislative process.” GAO Opinion, 3 Op. O.L.C. at 435-36. II. We find no other reason to believe that Congress intended to subject the Commission to §208. On the contrary, our conclusion that the Commission is not “ independent” for purposes of §208 is well supported by the language and legislative history of the Act. First, nothing in the language of the Act itself designates the Commission as “ independent.” As noted above, this distinguishes the Commission from other bodies that we have found to be subject to § 208, such as the GAO and the Sen­ tencing Commission. Second, the language of the Act assumes that the nine Commissioners will rep­ resent a variety of distinct and incompatible points of view with respect to gam­ bling, and that some Commissioners will be associated with the gambling industry. Thus, section 3(b)(2) of the Act states that “ [t]he [Commission] members may be from the public or private sector, and may include . . . members of . . . industry.” In addition, section 3(b)(3) states that the appointing authorities are to consult together “ to achieve, to the maximum extent possible, fair and equitable representation of various points of view” on the Commission. That the Commis­ sion membership was intended to include representatives of different points of view — some of whom could be expected to have financial interests in the Commission’s recommendations — does not in itself mean that §208 is inappli­ cable, see Office of Government Ethics Informal Opinion 82 x 22 (1989 ed.). Nonetheless, the statutory criteria for Commission membership clearly indicates that Congress was not attempting to insulate the Commission from outside influ­ ences in order to ensure its “ independence.” The legislative history confirms that understanding. The House Judiciary Committee’s Report on the legislation, H.R. 497, stated: the Committee expects that the [appointing] authorities may con­ sider for appointment representatives of various interested groups including, gambling proponents and opponents, state gambling regulators, federal and state prosecutors, Indian gambling operators, professionals who treat compulsive gamblers, casino operators, activists who have opposed gambling referenda, state lottery offi­ cials, and representatives of non-gambling businesses in areas around gambling operations. 39 Opinions o f the Office o f Legal Counsel in Volume 23 H.R. Rep. No. 104—440, pt. 1, at 8 (1995), reprinted in 1996 U.S.C.C.A.N. 1192, 1197. In the House debate, Representative Hyde, Chairman of the House Judiciary Committee that reported out the bill, sought to answer charges that the Commis­ sion might be skewed against the gambling industry. He said: I believe that this Commission can do the most good if its study is as neutral, objective, and comprehensive as possible — consid­ ering the views of all sides o f this issue. In that spirit, I proposed a committee amendment in the nature of a substitute to H.R. 497, which the Judiciary Committee adopted on a voice vote. My substitute included the vast majority of the provisions con­ tained in H.R. 497 as originally introduced, but it added language so as to assure that all points of view would be represented on the Commission. Specifically, the bill now requires that the appointing authorities consult together to ensure that the overall makeup of the Commission fairly and equitably represents] various points of view. 142 Cong. Rec. 3642-43 (1996).21 Thus, instead of seeking to promote public confidence in the Commission’s study by requiring that the Commission be “ independent” of outside influence, Congress preferred an approach in which at least some Commissioners could have open and avowed interests, biases and commitments that would check and balance those o f other Commissioners. From this (partly) “ adversarial” system, it was hoped that a balanced and objective study would be more likely to result. Plainly, a Commission so conceived would be very likely to include members whose per­ sonal stakes in the outcome of the Commission’s work would be disqualifying under § 208, if that statute were to apply. Given Congress’s careful decisions about the nature o f the Commission, the statute gives no indication that §208 was intended to apply to this advisory body. 21 S im ilarly, in th e S en ate deb a te. Senator C o ats, a supporter, stated: O p p o n en ts o f this c o m m issio n have raised m any charges against it. T h e y have claim ed th at the co m m is­ sio n is a tool o f the relig io u s right. They h av e claim ed th a t the com m issio n w ill b eco m e a w itch hunt ag a in st th e g am b lin g industry. M r. P resid en t, these claim s are unfounded. T h e app o in tm en t o f com m issio n ers w ill b e equally divided b etw een th e ex e cu tiv e bran ch and the tw o H o u ses o f C ongress, en su rin g that no factio n m ay dom inate th e w ork o f th e com m ission. 142 C o n g . R ec. 17,425, 17,426 (1996). 40 Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission Conclusion For all of the above reasons, we conclude that the Commission should not be considered an “ independent” agency within the meaning of §208, whichever meaning of that term is adopted, and hence is not subject to that statute. BETH NOLAN Deputy Assistant Attorney General Office o f Legal Counsel 41

Write a legal research memo on the following topic.

Assertion of Executive Privilege Concerning the Dismissal and Replacement of U.S. Attorneys Executive privilege may properly be asserted over the documents and testimony concerning the dismissal and replacement of U.S. Attorneys that have been subpoenaed by congressional committees. June 27, 2007 THE PRESIDENT THE WHITE HOUSE Dear Mr. President: The Senate Committee on the Judiciary and the House Committee on the Judiciary recently issued five subpoenas in connection with their inquiries into the resignation of several U.S. Attorneys in 2006. Broadly speaking, four of the five subpoenas seek documents in the custody of current or former White House officials (“White House documents”) concerning the dismissal and replacement of the U.S. Attorneys. In addition, two of the five subpoenas demand testimony about these matters from two former White House officials, Harriet Miers, former Counsel to the President, and Sara Taylor, former Deputy Assistant to the President and Director of Political Affairs. You have requested my legal advice as to whether you may assert executive privilege with respect to the subpoenaed documents and testimony concerning the categories of information described in this letter. It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony. I. The documents that the Office of the Counsel to the President has identified as responsive to the subpoenas fall into three broad categories related to the possible dismissal and replacement of U.S. Attorneys, including congressional and media inquiries about the dismissals: (1) internal White House communications; (2) communications by White House officials with individuals outside the Executive Branch, including with individuals in the Legislative Branch; and (3) communications between White House officials and Department of Justice officials. The Committees’ subpoenas also seek testimony from Ms. Miers and Ms. Taylor concerning the same subject matters, and the assertion of privilege with respect to such testimony requires the same legal analysis. The Office of Legal Counsel of the Department of Justice has reviewed the documents identified by the Counsel to the President as responsive to the subpoenas and is satisfied that the documents fall within the scope of executive 1 Opinions of the Office of Legal Counsel in Volume 31 privilege. The Office further believes that Congress’s interests in the documents and related testimony would not be sufficient to override an executive privilege claim. For the reasons discussed below, I concur with both assessments. A. The initial category of subpoenaed documents and testimony consists of internal White House communications about the possible dismissal and replacement of U.S. Attorneys. Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals. These types of internal deliberations among White House officials fall squarely within the scope of executive privilege. One of the underlying purposes of the privilege is to promote sound decisionmaking by ensuring that senior government officials and their advisers speak frankly and candidly during the decisionmaking process. As the Supreme Court has explained, “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and to do so in a way many would be unwilling to express except privately.” United States v. Nixon, 418 U.S. 683, 708 (1974); see also Assertion of Executive Privilege with Respect to Prosecutorial Documents, 25 Op. O.L.C. 1, 2 (2001) (“The Constitution clearly gives the President the power to protect the confidentiality of executive branch deliberations.”); Assertion of Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. 1, 2 (1999) (opinion of Attorney General Janet Reno) (“Clemency Decision”) (“[N]ot only does executive privilege apply to confidential communications to the President, but also to ‘communications between high Government officials and those who advise and assist them in the performance of their manifold duties.’”) (quoting Nixon, 418 U.S. at 705). These confidentiality interests are particularly strong where, as here, the communications may implicate a “quintessential and nondelegable Presidential power,” such as the authority to nominate or to remove U.S. Attorneys. In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997); Clemency Decision, 23 Op. O.L.C. at 2–3 (finding that executive privilege protected Department and White House deliberations related to decision to grant clemency). Under D.C. Circuit precedent, a congressional committee may not overcome an assertion of executive privilege unless it establishes that the documents and information are “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). And those functions must be in furtherance of Congress’s legitimate legislative responsibilities. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight authority “to enable it efficiently to exercise a legislative function belonging to it under the Constitution”). 2 Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys As a threshold matter, it is not at all clear that internal White House communications about the possible dismissal and replacement of U.S. Attorneys fall within the scope of McGrain and its progeny. The Supreme Court has held that Congress’s oversight powers do not reach “matters which are within the exclusive province of one of the other branches of the Government.” Barenblatt v. United States, 360 U.S. 109, 112 (1959). The Senate has the authority to approve or reject the appointment of officers whose appointment by law requires the advice and consent of the Senate (which has been the case for U.S. Attorneys since the founding of the Republic), but it is for the President to decide whom to nominate to such positions and whether to remove such officers once appointed. Though the President traditionally consults with members of Congress about the selection of potential U.S. Attorney nominees as a matter of courtesy or in an effort to secure their confirmation, that does not confer upon Congress authority to inquire into the deliberations of the President with respect to the exercise of his power to remove or nominate a U.S. Attorney. 1 Consequently, there is reason to question whether Congress has oversight authority to investigate deliberations by White House officials concerning proposals to dismiss and replace U.S. Attorneys, because such deliberations necessarily relate to the potential exercise by the President of an authority assigned to him alone. See Clemency Decision, 23 Op. O.L.C. at 3–4 (“[I]t appears that Congress’ oversight authority does not extend to the process employed in connection with a particular clemency decision, to the materials generated or the discussions that took place as part of that process, or to the advice or views the President received in connection with a clemency decision [because the decision to grant clemency is an exclusive Executive Branch function].”); Scope of Congressional Oversight and Investigative Power With Respect to the Executive Branch, 9 Op. O.L.C. 60, 62 (1985) (congressional oversight authority does not extend to “functions fall[ing] within the Executive’s exclusive domain”). In any event, even if the Committees have oversight authority, there is no doubt that the materials sought qualify for the privilege and the Committees have not demonstrated that their interests justify overriding a claim of executive privilege as to the matters at issue. The House Committee, for instance, asserts in its letter accompanying the subpoenas that “[c]ommunications among the White House staff involved in the U.S. Attorney replacement plan are obviously of paramount importance to any understanding of how and why these U.S. Attorneys were 1 See, e.g., Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring) (“[T]he Clause divides the appointment power into two separate spheres: the President’s power to ‘nominate,’ and the Senate’s power to give or withhold its ‘Advice and Consent.’ No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for [the] appointment.”); Myers v. United States, 272 U.S. 52, 122 (1926) (“The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.”). 3 Opinions of the Office of Legal Counsel in Volume 31 selected to be fired.” Letter for Fred F. Fielding, Counsel to the President, from John Conyers, Jr., Chairman, House Judiciary Committee at 2 (June 13, 2007). But the Committees never explain how or why this information is “demonstrably critical” to any “legislative judgments” Congress might be able to exercise in the U.S. Attorney matter. Senate Select Comm., 498 F.2d at 732. Broad, generalized assertions that the requested materials are of public import are simply insufficient under the “demonstrably critical” standard. Under Senate Select Committee, to override a privilege claim the Committees must “point[] to . . . specific legislative decisions that cannot responsibly be made without access to [the privileged] materials.” Id. at 733. Moreover, any legitimate oversight interest the Committees might have in internal White House communications about the proposal is sharply reduced by the thousands of documents and dozens of hours of interviews and testimony already provided to the Committees by the Department of Justice as part of its extraordinary effort at accommodation. 2 This information has given the Committees extraordinary—and indeed, unprecedented—insight into the Department’s decision to request the U.S. Attorney resignations, including the role of White House officials in the process. See, e.g., History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 758– 59, 767 (1982) (documenting refusals by Presidents Jackson, Tyler, and Cleveland 2 During the past three months, the Department has released or made available for review to the Committees approximately 8,500 pages of documents concerning the U.S. Attorney resignations. The Department has included in its productions many sensitive, deliberative documents related to the resignation requests, including e-mails and other communications with White House officials. The Committees’ staffs have also interviewed, at length and on the record, a number of senior Department officials, including, among others, the Deputy Attorney General, the Acting Associate Attorney General, the Attorney General’s former chief of staff, the Deputy Attorney General’s chief of staff, and two former Directors of the Executive Office for U.S. Attorneys. During these interviews, the Committees’ staffs explored in great depth all aspects of the decision to request the U.S. Attorney resignations, including the role of White House officials in the decisionmaking process. In addition, the Attorney General, the Deputy Attorney General, the Principal Associate Deputy Attorney General, the Attorney General’s former chief of staff, and the Department’s former White House Liaison have testified before one or both of the Committees about the terminations and explained, under oath, their understanding of such involvement. The President has also made significant efforts to accommodate the Committees’ needs. More than three months ago, the Counsel to the President proposed to make senior White House officials, including Ms. Miers, available for informal interviews about “(a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications between the White House and Members of Congress concerning those requests,” and he offered to give the Committees access to White House documents on the same subjects. Letter for Patrick Leahy, U.S. Senate, et al., from Fred F. Fielding, Counsel to the President at 1–2 (Mar. 20, 2007). The Committees declined this offer. The Counsel to the President has since reiterated this offer of accommodation but to no avail. See Letter for Patrick Leahy, U.S. Senate, and John Conyers, Jr., U.S. House of Representatives, from Fred F. Fielding, Counsel to the President at 1 (Apr. 12, 2007); Letter for Patrick Leahy, U.S. Senate, John Conyers, Jr., U.S. House of Representatives, and Linda T. Sanchez, U.S. House of Representatives, from Fred F. Fielding, Counsel to the President at 1–2 (June 7, 2007). 4 Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys to provide information related to the decision to remove Executive Branch officials, including a U.S. Attorney). In a letter accompanying the subpoenas, the House Committee references the alleged “written misstatements” and “false statements” provided by the Department to the Committees about the U.S. Attorney dismissals. See Letter for Fred F. Fielding, Counsel to the President, from John Conyers, Jr., Chairman, House Judiciary Committee at 2 (June 13, 2007). The Department has recognized the Committees’ interest in investigating the extent to which Department officials may have provided inaccurate or incomplete information to Congress. This interest does not, however, justify the Committees’ demand for White House documents and information about the U.S. Attorney resignations. Officials in the Department, not officials in the White House, presented the challenged statements, and as noted, the Department has provided unprecedented information to Congress concerning, inter alia, the process that led to the Department’s statements. The Committees’ legitimate oversight interests therefore have already been addressed by the Department, which has sought to provide the Committees with all documents related to the preparation of any inaccurate information given to Congress. Given the amount of information the Committees already possess about the Department’s decision to remove the U.S. Attorneys (including the involvement of White House officials), there would be little additional legislative purpose served by revealing internal White House communications about the U.S. Attorney matter, and, in any event, none that would outweigh the President’s interest in maintaining the confidentiality of such internal deliberations. See Senate Select Comm., 498 F.2d at 732–33 (explaining that a congressional committee may not obtain information protected by executive privilege if that information is available through non-privileged sources). Consequently, I do not believe that the Committees have shown a “demonstrably critical” need for internal White House communications on this matter. B. For many of the same reasons, I believe that communications between White House officials and individuals outside the Executive Branch, including with individuals in the Legislative Branch, concerning the possible dismissal and replacement of U.S. Attorneys, and possible responses to congressional and media inquiries about the dismissals, fall within the scope of executive privilege. Courts have long recognized the importance of information gathering in presidential decisionmaking. See, e.g., In re Sealed Case, 121 F.3d at 751–52 (describing role of investigation and information collection in presidential decisionmaking). Naturally, in order for the President and his advisers to make an informed decision, presidential aides must sometimes solicit information from individuals outside the White House and the Executive Branch. This need is particularly strong when the decision involved is whether to remove political appointees, such 5 Opinions of the Office of Legal Counsel in Volume 31 as U.S. Attorneys, who serve in local districts spread throughout the United States. In those situations, the President and his advisers will be fully informed only if they solicit and receive advice from a range of individuals. Yet the President’s ability to obtain such information often depends on the provider’s understanding that his frank and candid views will remain confidential. See Nixon, 418 U.S. at 705 (“Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”); In re Sealed Case, 121 F.3d at 751 (“In many instances, potential exposure of the information in the possession of an adviser can be as inhibiting as exposure of the actual advice she gave to the President. Without protection of her sources of information, an adviser may be tempted to forego obtaining comprehensive briefings or initiating deep and intense probing for fear of losing deniability.”). That the communications involve individuals outside the Executive Branch does not undermine the President’s confidentiality interests. The communications at issue occurred with the understanding that they would be held in confidence, and they related to decisionmaking regarding U.S. Attorney removals or replacements or responding to congressional or media inquiries about the U.S. Attorney matter. Under these circumstances, the communications retain their confidential and Executive Branch character and remain protected. See In re Sealed Case, 121 F.3d at 752 (“Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the [presidential communications component of executive] privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves.”). 3 Again, the Committees offer no compelling explanation or analysis as to why access to confidential communications between White House officials and individuals outside the Executive Branch is “demonstrably critical to the responsible fulfillment of the [Committees’] functions.” Senate Select Comm., 498 F.2d at 731. Absent such a showing, the Committees may not override an executive privilege claim. C. The final category of documents and testimony concerns communications between the Department of Justice and the White House concerning proposals to dismiss and replace U.S. Attorneys and possible responses to congressional and media inquiries about the U.S. Attorney resignations. These communications are 3 Moreover, the Department has previously conveyed to the Committees its concern that there would be a substantial inhibiting effect on future informal confidential communications between Executive Branch and Legislative Branch representatives if such communications were to be produced in the normal course of congressional oversight. 6 Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys deliberative and clearly fall within the scope of executive privilege. 4 See supra p. 2. In this case, however, the Department has already disclosed to Congress a substantial amount of documents and information related to White House communications about the U.S. Attorney matter. Consequently, in assessing whether it would be legally permissible to assert executive privilege, it is useful to divide this category into three subcategories, each with slightly different considerations: (1) documents and testimony related to communications between the Department and White House officials that have not already been disclosed by the Department; (2) documents concerning White House-Department communications previously disclosed to the Committees by the Department; and (3) testimony from current or former White House officials (such as the testimony sought from Ms. Miers or Ms. Taylor) about previously disclosed White House-Department communications. After carefully considering the matter, I believe there is a strong legal basis for asserting executive privilege over each of these subcategories. The President’s interest in protecting the confidentiality of documents and information about undisclosed White House-Department communications is powerful. Most, if not all, of these communications concern either potential replacements for the dismissed U.S. Attorneys or possible responses to inquiries from Congress and the media about the U.S. Attorney resignations. As discussed above, the President’s need to protect deliberations about the selection of U.S. Attorneys is compelling, particularly given Congress’s lack of legislative authority over the nomination or replacement of U.S. Attorneys. See In re Sealed Case, 121 F.3d at 751–52. The President also has undeniable confidentiality interests in discussions between White House and Department officials over how to respond to congressional and media inquiries about the U.S. Attorney matter. As Attorney General Janet Reno advised the President in 1996, the ability of the Office of the Counsel to the President to assist the President in responding to investigations “would be significantly impaired” if a congressional committee could review “confidential documents . . . prepared in order to assist the President and his staff in responding to an investigation by the [committee] seeking the documents.” Assertion of Executive Privilege Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 2, 3 (1996). Despite extensive communications with officials at the Department and the White House, the Committees have yet to articulate any “demonstrably critical” oversight interest that would justify overriding these compelling confidentiality concerns. There are also legitimate reasons to assert executive privilege over White House documents reflecting White House-Department communications that have been previously disclosed to the Committees by the Department. As discussed, 4 To the extent they exist, White House communications approving the Department’s actions by or on behalf of the President would receive particularly strong protection under executive privilege. See, e.g., In re Sealed Case, 121 F.3d at 752–53 (describing heightened protection provided to presidential communications). 7 Opinions of the Office of Legal Counsel in Volume 31 these documents are deliberative in nature and clearly fall within the scope of executive privilege. The Department’s accommodation with respect to some White House-Department communications does not constitute a waiver and does not preclude the President from asserting executive privilege with respect to White House materials or testimony concerning such communications. The D.C. Circuit has recognized that each branch has a “constitutional mandate to seek optimal accommodation” of each other’s legitimate interests. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977). If the Department’s provision of documents and information to Congress, as part of the accommodation process, eliminated the President’s ability to assert privilege over White House documents and information concerning those same communications, then the Executive Branch would be hampered, if not prevented, from engaging in future accommodations. Thus, in order to preserve the constitutional process of interbranch accommodation, the President may claim privilege over documents and information concerning the communications that the Department of Justice has previously disclosed to the Committees. Indeed, the relevant legal principles should and do encourage, rather than punish, such accommodation by recognizing that Congress’s need for such documents is reduced to the extent similar materials have been provided voluntarily as part of the accommodation process. Here, the Committees’ need for White House documents concerning these communications is weak. The Committees already possess the relevant communications, and it is well established that Congress may not override executive privilege to obtain materials that are cumulative or that could be obtained from an alternative source. See Senate Select Comm., 498 F.2d at 732–33 (holding public release of redacted audio tape transcripts “substantially undermined” any legislative need for tapes themselves); Clemency Decision, 23 Op. O.L.C. at 3–4 (finding that documents were not demonstrably critical where Congress could obtain relevant information “through non-privileged documents and testimony”). Accordingly, the Committees do not have a “demonstrably critical” need to collect White House documents reflecting previously disclosed White House-Department communications. Finally, the Committees have also failed to establish the requisite need for testimony from current or former White House officials about previously disclosed White House-Department communications. Congressional interest in investigating the replacement of U.S. Attorneys clearly falls outside its core constitutional responsibilities, and any legitimate interest Congress may have in the disclosed communications has been satisfied by the Department’s extraordinary accommodation involving the extensive production of documents to the Committees, interviews, and hearing testimony concerning these communications. As the D.C. Circuit has explained, because “legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability,” Congress will rarely need or be entitled to a “precise reconstruction of past events” to carry out its legislative responsibilities. Senate Select Comm., 8 Assertion of Executive Privilege Concerning Dismissal of U.S. Attorneys 498 F.2d at 732. 5 On the other hand, the White House has very legitimate interests in protecting the confidentiality of this information because it would be very difficult, if not impossible, for current or former White House officials testifying about the disclosed communications to separate in their minds knowledge that is derived from the Department’s disclosures from knowledge that is derived from other privileged sources, such as internal White House communications. Consequently, given the President’s strong confidentiality interests and the Committees’ limited legislative needs, I believe that White House information about previously disclosed White House-Department communications may properly be subject to an executive privilege claim. II. In sum, I believe that executive privilege may properly be asserted with respect to the subpoenaed documents and testimony as described above. PAUL D. CLEMENT Solicitor General & Acting Attorney General 5 See also Senate Select Comm., 498 F.2d at 732 (explaining that Congress “frequently legislates on the basis of conflicting information provided in its hearings”); Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 159 (1989) (“Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular executive branch officials.”). 9

Write a legal research memo on the following topic.

Miscellaneous Receipts Act Exception for Veterans’ Health Care Recoveries T he Veterans R econciliation Act o f 1997 creates an exception to the M iscellaneous Receipts A ct to the extent that a recovery or collection under the Federal M edical Care Recovery Act is based on m edical care o r services furnished under chapter 17 o f title 38, United S tates Code, and thus allow s the d eposit o f such a recovery or collection in the D epartm ent of V eterans A ffairs M edical C are C ollections Fund. December 3, 1998 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l C iv il D iv is io n This responds to your request of May 28, 1998, that we examine whether certain funds received as part of a settlement under the Federal Medical Care Recovery Act, Pub. L. No. 87-693, 76 Stat. 593 (1962) ( “ MCRA” ), codified as amended at 42 U.S.C. §§2651-2653 (1994 & Supp. II 1996), may be transferred to the Department of Veterans Affairs Medical Care Collections Fund (“ VA Fund” ) notwithstanding the general requirement contained in the Miscellaneous Receipts Act (“ MRA” ) that “ an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim,” 31 U.S.C. § 3302(b) (1994). For the reasons outlined below, it is our view that the portion of the settlement amount that was calculated to compensate the Government for its claims under MCRA for medical care or services furnished under chapter 17 of Title 38, which governs certain veterans’ health benefits, may be transferred to the VA Fund by virtue of the Veterans Reconciliation Act of 1997, Pub. L. No. 105-33, § 8023(a)(1), 111 Stat. 251, 665, codified as amended at 38 U.S.C. § 1729A (Supp. IV 1998), which creates an exception to the MRA “ to the extent that a recovery or collection under . . . [MCRA] is based on medical care or services furnished under this chapter [i.e. Chapter 17 of Title 38].” 38 U.S.C. § 1729A(b)(6). Because the information that you have provided does not allow us to determine the amount of the settlement that was intended to compensate the federal government for its claims under MCRA, however, we are unable to give any more specific guidance on this issue.1 I. Settlement Background In 1993, numerous tort actions brought in federal district courts throughout the country by persons with hemophilia against manufacturers of blood products were centralized as Multidistrict Litigation No. 986 before Judge Grady in the Northern 1We have no! been asked to address any other questions regarding this settlement 251 Opinions of the O ffice o f Legal Counsel in Volume 22 District o f Illinois. In these cases, individuals with hemophilia who contracted the HIV virus, and representatives of the estates of such individuals who have died, sued several companies who extracted the blood proteins that hemophiliacs lack (known as Factors VIE and IX ) from donated blood and provided these pro­ teins in the form o f “ factor concentrates” to hemophiliacs for injection. In addi­ tion to suing these “ Fractionaters,” as the companies are known based on the manufacturing process involved, plaintiffs also sued the National Hemophilia Foundation and individual health care providers.2 Although the United States chose not to intervene in the suits, it also had poten­ tial claims against the Fractionaters, including those under MCRA based on the provision of certain health care to veterans.3 MCRA provides a mechanism for the recoupment of certain medical costs and provides in relevant part: In any case in which the United States is authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment . . . to a person who is injured or suffers a disease . . . under circumstances creating a tort liability upon some third person . . . to pay damages therefor, the United States shall have a right to recover (independent o f the rights of the injured or diseased person) from said third person, or that person’s insurer, the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for and shall, as to this right be subrogated to any right or claim that the injured or diseased person . . . [or] . . . estate . . . has against such third person to the extent of the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for. 42 U.S.C. § 2 6 5 1(a). The Fractionaters commenced negotiations o f a global settlement of the claims o f the class m em bers4 and agreed to pay $100,000 for each approved claim, as well as a settlement with major private health care insurers, whom they agreed 2 See In re “Factor VIII o r IX Concentrate B lood Products," Product Liab. Litig., 853 F. Supp 454 (Judicial Panel on M ultidistnct Litigation 1993), Wadleigh v. Rhone-Poulenc Rorer, Inc., 157 F R .D 410 (N.D 111 1994), r e v ’d by order o f mandamus, In the M atter of Rhone-Poulenc Rorer I n c , 51 F 3d 1293 (7th C ir 1995), and cert, denied, 516 U.S. 867 (1995); In re Factor VIII o r IX Concentrate Blood Products Utig., 169 F.R.D 632 (N D 111 1996) 3 The draft memorandum from the Torts Branch to then-Acting Associate Attorney General John C Dwyer also discusses claim s (and potentially applicable recoupment provisions regarding claims) based on the provision of health care services to governm ent employees and their dependents under the Federal Employees Health Benefits Program as well as to individuals generally through the M edicare, Medicaid, and Indian Health Service programs. See Memo­ randum for John C. Dwyer, Acting Associate Attorney General, from Frank W Hunger, Assistant Attorney General, Civil Division, Re. Affirm ative Claims fo r Reimbursement o f Federally-Funded Health Care Provided to Persons with Hemophilia Infected with H IV (undated draft memorandum) 4 At the request o f the parties, Judge Grady approved a class specifically for settlement purposes after the Seventh Circuit had reversed Judge G rady’s p n o r certification o f a class for purposes of a trial. See In the Matter o f RhonePoulenc Rorer Inc., 51 F 3d at 1294-1304 252 Miscellaneous Receipts Act Exception fo r Veterans’ Health Care Recoveries to pay ten cents per insured life in exchange for full release of all reimbursement and subrogation claims for recovery of costs of care or treatment o f class members arising from use of factor concentrates. The Fractionaters also approached the federal government with an offer to settle any claims of the United States based on the provision of health care to hemo­ philiacs, including veterans, who contracted the HIV virus. The Torts Branch, in cooperation with the respective agencies responsible for the health care services involved, entered into an out-of-court settlement with the Fractionaters, under which the latter paid the United States ten cents per federal health care system beneficiary and released the United States from all claims and actions arising out of, or related to, the use of factor concentrates by claimants. In exchange, the United States released the Fractionaters from all claims for reimbursement of med­ ical expenses, all claims and causes of action under certain civil fraud statutes, and common law contribution and indemnity rights related to Federal Tort Claims Act cases brought against the United States. See Settlement Agreement ^1 A & B .l-2 . The settlement figure was calculated based on agency estimates of the numbers of persons entitled to federally subsidized health care in each o f the federal pro­ grams that the Torts Branch believed had potential claims of reimbursement against the Fractionaters. The total number of covered persons was estimated at 121,881,000, which included 25,881,000 veterans, yielding a final settlement amount of $12,188,100.5 The Torts Branch entered into an out-of-court settlement that was conditioned on Judge Grady’s entering a global settlement in the private litigation. On May 8, 1997, Judge Grady entered a Final Order and Judgment approving a global settlement of the multidistrict litigation, and on August 15, 1997, the Torts Branch received four checks for a total of $12,188,100, which were depos­ ited in the Treasury on August 19, 1997. On March 25, 1998, the Department of Veterans Affairs requested that the amount of $2,510,457 (which represents the settlement that was calculated based on the veteran population of 25,881,000, i.e. $2,558,100, less the Department of Justice’s 3% collection fee)6 be deposited in the VA Fund pursuant to the Vet­ erans Reconciliation Act, 38 U.S.C. § 1729A. 5 Agency estimates of covered individuals in the other programs that the Torts Branch identified as having potential claims against the Fractionaters were as follows: Medicare (38,600,000), Medicaid (38,700,000), Indian Health Serv­ ices (1,500,000), Federal Employees Health Benefits Program (9,000,000), Civilian Health and Medical Program of the Uniformed Services (5,300,000), and Department o f Defense (2,900,000). 6 Pub L No. 103-121, §108, 107 Stat 1153, 1164 (1993) provides* “ Notwithstanding 31 U.S.C 3302 or any other statute affecting the crediting of collections, the Attorney General may credit, as an offsetting collection, to the Department o f Justice Working Capital Fund, for fiscal year 1994 and thereafter, up to three percent of all amounts collected pursuant to civil debt collection litigation activities of the Department of Justice ” 253 Opinions o f the Office o f Legal Counsel in Volume 22 II. Receipt o f Payments As a general matter, the Miscellaneous Receipts Act requires that “ [e]xcept as provided in § 3718(b) of this title, an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” 31 U.S.C. § 3302(b). In addition to cases covered by the express exception in § 3718(b), which relates to payments to private counsel retained to assist in the pursuit of claims, the MRA generally does not govern in two situations: first, where an agency has statutory authority to direct funds elsewhere, and second, when receipts qualify as “ repayments” to an appropriation. See generally 2 Office of the General Counsel, United States General Accounting Office, Principles of Federal Appropriations Law 6-108 (2d ed. 1992).7 In 1972 the Comptroller General opined with regard to MCRA (as it existed then), that “ [t]his Act does not specify the disposition to be made of monies collected from third party tortfeasors and, consequently, unless a different disposi­ tion is otherwise provided, such collections are for deposit in the treasury as mis­ cellaneous receipts as provided by §3617, revised statutes 31 U.S.C. 484 [the predecessor to 31 U.S.C. § 3302(b)].” 52 Comp. Gen. 125, 126 (1972); see also 61 Comp. Gen. 537, 539 (1982) (summarizing holding of 1972 opinion). In 1997, however, Congress passed the Veterans Reconciliation Act of 1997, which estab­ lished a Department of Veterans Affairs Medical Care Collections Fund, and expressly provided: Amounts recovered or collected after June 30, 1997, under any of the following provisions of law shall be deposited in the fund: (6) Public Law 87-693, popularly known as the “ Federal Med­ ical Care Recovery Act” (42 U.S.C. 2651 et seq.), to the extent that a recovery or collection under that law is based on medical care or services furnished under this chapter [i.e. Chapter 17 of Title 38, which governs hospital, nursing home, domiciliary, and medical care for veterans]. 38 U.S.C. § 1729A(b).8 7 The opinions and legal interpretations of the G eneral Accounting O ffice and the Comptroller General often pro­ vide helpful guidance on appropriations matters and related issues, but they are not binding on departments, agencies, or officers o f the executive branch. See Bowsher v. Synar, 478 U S. 714, 727-32 (1986). 8 In 1996 Congress had amended M CRA to allow amounts recovered for medical care furnished by military facili­ ties to be credited to the appropnaiions supporting the facilities as prescribed by the Secretary of Defense. Pub L No. 104-201, § 1075(a)(5), 110 Stat 2422, 2661 (1996) (codified as amended at 42 U S C §2651(0 (1994 & Supp 11 J996). 254 Miscellaneous Receipts Act Exception fo r Veterans' Health Care Recoveries In our view, the Veterans Reconciliation Act allows the portion of the settlement amount that was based on claims under MCRA for medical care furnished or to be furnished by the Department of Veterans Affairs under Chapter 17 of Title 38 to be deposited in the VA Fund.9 Even payment based on an abstract formula, such as ten cents per covered person, as opposed to a calculation o f actual expenses for such claims, would qualify as long as the calculation was aimed solely at settling the MCRA claim. MCRA specifically allows for the United States to recover for “ the reasonable value of the care . . . furnished, to be furnished, paid for, or to be paid for.” 42 U.S.C. § 2651(a). Thus, some estimate of the value of future costs would be inevitable in determining damages even in a direct court action against the tortfeasor. Moreover, in the context of a settlement, as long as the federal govern­ ment had claims that it could assert in good faith under MCRA for such services, such claims could be relinquished in return for payment of a reasonable amount reflecting the value of the claims. The Attorney General has the authority to settle a claim consistent with the requirements of the specific scheme under which the claim arises. See 28 U.S.C. §§516, 519 (1994); see generally Settlement Authority o f the United States in Oil Shale Cases, 4B Op. O.L.C. 756 (1980). Nothing in MCRA would appear to indicate that Congress intended to limit the Attorney Gen­ eral’s discretion to determine a reasonable settlement amount. Even when that amount is determined based on an abstract formula, the government may still be recovering the money for purposes of satisfying the MCRA claim. For example, the government may have determined that the ten-cents-per-veteran formula is an appropriate approximation of the actual expenses incurred in providing MCRA recoverable Chapter 17 services to affected veterans. Thus, to the extent the tencents-pcr-veteran formula was aimed at determining a reasonable figure to com­ pensate the United States for the relinquishment of its MCRA claims against the Fractionaters for Chapter 17 services, the resulting recovery would be “ a recovery or collection under [MCRA] . . . based on medical care or services furnished” to veterans under Chapter 17. 38 U.S.C. § 1729A(b). Furthermore, because the payment of the settlement was apparently received on August 15, 1997, the recovery would appear to fall within the time limits of the Veterans Reconciliation Act. We caution, however, that to the extent the settlement amount was calculated to include compensation to the United States for relinquishment of claims other than the MCRA claims that are outlined above (i.e. to the extent the settlement amount included compensation for claims that might have been made under, for 9 In light of the formulation in MCRA providing for the recoupment o f costs for care and treatment “ furnished, to be furnished, paid for, or to be paid for,” 42 U S C §2651(a), we believe that the Veterans Reconciliation Act formulation concerning the transfer of funds recovered under MCRA for medical carc or services “ furnished under this Chapter,” 38 U S C § l729A(b), should be read as authorizing the transfer of funds recovered under MCRA for medical care or services that were furnished in the past or will be furnished in the future under Chapter 17. 255 Opinions of the Office o f Legal Counsel in Volume 22 example, the False Claims Act or civil monetary penalty laws, or for claims of common law contribution or indemnity rights relating to Federal Tort Claims Act cases), the amount of the settlement that was considered to compensate the United States for these other claims could not be deposited in the VA Fund. Similarly, we note that any MCRA claim recovery formula based on the entire veteran popu­ lation must reflect only the government’s claims regarding Chapter 17 services and must not include claims relating to services furnished or paid for under other health benefit programs, if the formula is intended to yield an amount that may be deposited in the VA fund. Accordingly, we conclude that the share of the settlement amount attributable to MCRA recoverable Chapter 17 services rendered by the Department of Vet­ erans Affairs (less the 3% Department of Justice collection fee) may be deposited in the Department of Veterans Affairs Medical Care Collections Fund. Thus, to the extent the ten-cents-per-veteran figure was intended to compensate the United States solely for its claims under MCRA for services furnished under Chapter 17 of Title 38, the portion of the settlement amount that was based on the size of the veteran population, less the 3% collection fee, may be deposited in the VA Fund. In light of the information that you have provided us, however, we are unable to determine the extent to which the settlement figure was aimed at compensating the government for its claims under MCRA, and we cannot reach a definitive conclusion on the actual amount that ultimately should be transferred to the VA Fund. TODD DAVID PETERSON Deputy Assistant Attorney General Office o f Legal Counsel 256

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Vesting of Iranian Assets B ecause th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t d o es not a u th o riz e vesting o f fo reig n p ro p e rty , and th e T ra d in g w ith th e E n em y A c t au th o riz e s vesting o n ly in w artim e, in th e ab sen ce o f a d e c la ra tio n o f w a r ag ain st Ira n it w o u ld be necessary to seek n e w leg islatio n in o r d e r for th e U n ited S tates to take title to th e b lo ck ed Iranian assets. N o d o m estic c o n stitu tio n al issue w o u ld be raised by legislation a u th o riz in g th e v estin g o f Iran ian g o v e rn m e n t p ro p e rty ; m o re o v e r, v estin g fo r th e benefit o f e ith e r p riv a te cla im ­ an ts o r th e U .S. g o v e rn m e n t w o u ld be co n sisten t w ith p rin cip le s o f in tern atio n a l law , e ith e r as a self-h elp m eth o d o f se c u rin g p ay m en t fo r dam ag es, o r as a reprisal for Ira n ’s c o n tin u in g v io latio n s o f in tern atio n a l law . V estin g legislatio n w o u ld h a v e little effect o n p en d in g d o m estic litigation in v o lv in g th e b lo ck ed Iran ian assets, an d its effect on p re -ju d g m e n t a tta c h m e n ts w o u ld d e p e n d upon th e v alid ity o f su ch a tta c h m e n ts u n d e r sta te law . V estin g legislation w o u ld not be en fo rc e a b le ag ain st p ro p e rty lo cated a b ro ad , an d w o u ld th e re fo re h av e no effect on fo reig n litig atio n in v o lv in g Iran ian d o lla r d ep o sits in U .S. b ra n c h banks a b ro a d , unless foreig n c o u rts w e re to hold th at su ch d o lla r d ep o sits a re in reality lo cated a t th e hom e office o f th e ban k s in th e U n ited S tates. March 12, 1980 M EM ORANDUM OPIN IO N FOR T H E ATTORNEY G EN ER A L We have been asked to address a number of issues relating to possible vesting of Iranian assets. This preliminary response has been prepared in cooperation with the Civil Division. I. Existing Authority At present no Iranian assets have been vested or seized. Vesting is a process by which the United States would take title to assets of a foreign country or its nationals. Under Executive Order No. 12,170 of November 14, 1979, the President blocked property of the Iranian government, its instrumentalities, and the Central Bank of Iran. 3 C.F.R. 457 (1979). The blocking order prevents property from being transferred or withdrawn, but does not permit its use by the United States or change title to it. This action was taken pursuant to the International Emergency Economic Powers Act, 50 U.S.C. § 1701 (Supp. I 1977) (IEEPA). This Act does not, however, provide author­ ity to vest property.1 1 N o private pro p erty o f Iranian nationals was blocked although the IE E P A is broad enough to permit this. It w ould be necessary for the President to issue an additional o rd e r to accom plish blocking C o n tin u e d 202 The Trading with the Enemy Act provides for both blocking and vesting of foreign property. 50 U.S.C. App. § 5(b). Until 1977, when the International Economic Powers Act was enacted, the Trading with the Enemy Act applied both during wartime and during any other period of national emergency declared by the President. It was amend­ ed, however, so that it now applies only during wartime. 91 Stat. 1625 (1977). Therefore, the national emergency relating to Iran declared by the President on November 14, 1979, does not trigger the Trading with the Enemy Act. If the Trading with the Enemy Act were to be used it would be necessary to declare war. In the absence of such a declaration it would be necessary to seek new legislation. We make no recommen­ dation as to whether or not the United States should declare war on Iran. II. Proposed Legislation If the Administration seeks legislation permitting vesting of Iranian assets a number of policy and legal questions would have to be faced. These include whether to provide in the legislation for disposition of the assets once vested and what that disposition should be. We do not think that any domestic constitutional issue arises in the taking of Iranian government property. The Fifth Amendment by its terms applies only to the taking of “private property” without just compensation. Thus, on its face the Just Compensation Clause does not apply. The role of the Constitution in domestic law, as well as the text, supports this conclusion. Constitutional protections limit the power of the United States to act upon persons who are subject to its power by virtue of their presence in this country or their activities here. The United States asserts its power with respect to foreign nations because as a sovereign among equals it enjoys powers and privileges under international law and not because of its domestic authority.2 Cf. United States v. Curtiss-Wright Export Co., 299 U.S. 304, 315-18 (1936). The precedents for this type of legislation have focused on providing for settlement of private claims against a foreign government, while government-to-government claims have been settled directly. See the International Claims Settlement Act of 1949, as amended, 22 U.S.C. §1621 et seq. There is no reason, however, why the legislation has to be so limited. As discussed below, vesting for the benefit of either o f private p roperly since the N ovem ber 14 o rd e r only perm its the Secretary o f the T reasury to block Iranian governm ent property. Presum ably, such action w ould be necessary pending vesting legislation; otherw ise, the pro p erty could be w ith d raw n in the interim. T h e vesting o f private assets presents issues different from those concerning vesting o f governm ent assets, as w e discuss below. 2 V esting p roperty o f private Iranian citizens presents constitutional issues w hich should be exam ­ ined in detail if th ere is any intent to act regarding private properly. Russian Volunteer Fleet v. United States. 282 U.S. 481 (1931). B u t see Sordino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir. 1966), cert, denied, 385 U.S. 898 (1966). 203 private claimants or the United States government would be consistent with international law. III. International Law A. Dam ages The United States has claimed that Iran has flagrantly violated its treaty obligations to the United States including those under the Vienna Conventions on Diplomatic and Consular Relations. Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, and Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. Breach of an international agreement involves an obligation to make reparation in an adequate form, even when the treaty does not specify damages as a remedy. E.g., Corfu Channel Case, 1949 I.C.J. at pp. 23-24. Self-help is recognized in international law as a method of securing payment for damages. The unquestioned right of a state to protect its nationals in their persons and property while in a foreign country must permit initial seizure and ultimate expropriation of assets if other meth­ ods of securing compensation should fail. E.g., Sordino v. Federal R e­ serve Bank o f N ew York, 361 F.2d 106 (2d Cir.), cert, denied, 385 U.S. 898 (1966). The United States is now proceeding against Iran in the International Court of Justice. The Court ruled as a preliminary matter on December 15, 1979, that Iran has violated pertinent treaties. It has not yet ruled on the question of damages. In January the United States submitted a Memorial (brief) to the Court seeking a judgment that the United States is “entitled to the payment to it, in its own right and in the exercise of its right of diplomatic protection of its nationals held hostage, of repa­ ration . . . in a sum to be determined by the Court at a subsequent stage of the proceedings.” It is likely that the issue of liability will be argued to the Court in the near future and there is every reason to anticipate a favorable judgment on the question. Such a judgment would, of course, lend support to any self-help remedies the United States may seek to apply. If in a subsequent hearing the Court were to find damages in an amount less than that seized by the United States, we might face the issue of whether part of the assets should be returned. B. Reprisal Apart from the issue of damages, vesting may be viewed as a reprisal for the continuing violations of international law by Iran and thus as an element of our diplomatic efforts to end those violations. A. David, The Strategy of Treaty Termination: Lawful Breaches and Retaliations 234 (Yale Univ. Press, 1975). Non-forcible reprisals may be used in the case of breach of treaty obligations. Com m entary on Vienna Convention 204 on L aw o f Treaties, [1966] 2 Y.B. Int’l L. Comm’n 253-54. Since other means of settling the dispute have failed, and since we can argue that seizure is reasonably proportional to the injury suffered, this action can be justified as meeting the standards of customary international law. E.g., 12 M. Whiteman, Digest of Int’l Law 321-28. We take no position on whether vesting will be an effective method of resolving the diplo­ matic impasse. IV. Effect of Vesting on Pending Litigation A. Dom estic Litigation What effect would a vesting of Iranian government-owned assets have on domestic suits—and especially on pre-judgment attachments which have been attempted by American creditors, primarily by Amer­ ican banks who have in their custody Iranian government deposits? The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602, deals comprehensively with the suability of foreign states and their agencies and instrumentalities, and defines the circumstances under which property of such entities can be attached prior to judgment and levied upon in satisfaction of judgments. Whether a suit is properly brought and whether an attachment is valid is, therefore, a question of federal law; state law is relevant only in those instances where attach­ ment is authorized under the Immunities Act; state law defines the rights obtained by an attachment creditor.3 Vesting of Iranian government-owned assets would have little effect on pending suits. It would be for the courts to determine on a case-bycase basis whether the Immunities Act confers jurisdiction. Vesting, however, would impact upon the pending pre-judgment attachments. A majority of the attachments which have been sought are in all likelihood invalid because they either seek to reach property of the Iranian government not used for a “commercial purpose,” or because the property sought to be reached belongs to an Iranian entity which is distinct from the debtor entity. An American claimant who attempted an unauthorized attachment would not be deprived of any cognizable property interests if the asset is vested and title passes to the United States. In instances where attachments are proper under the Immunities Act, their legal effect would have to be determined under state law. A valid attachment would not be cancelled or annulled upon vesting, even if the property were “frozen” at the time the attachment was obtained. Zittm an v. M cGrath, 341 U.S. 446 (1951) (holding that a “right, title 3T h e Iranian Assets C o n tro l R egulations expressly authorize pre-judgm ent attachm ents. 31 C .F .R . § S35.4I8 (as added on D ecem ber 19, 1979). But the regulations authorize such attachm ent only w here federal o r state law g rants a rig h t to a c re d ito r to attach his d e b to r's property; the regulations them selves are not a source o f substantive c re d ito r’s rights. 205 and interest” vesting leaves undisturbed any property interests acquired by a pre-vesting attachment creditor). When vesting property, the fed­ eral government merely steps into the shoes of the pre-vesting owner (here, the Iranian government). This does not mean that property in which an attachment creditor obtained an interest under state law is not subject to vesting. The Second Z ittm an case (Zittm an v. McGrath, 341 U.S. 471 (1951)) teaches that the federal government may enforce a transfer of possession of the funds “for purposes of administration.” During such administration—which is akin to a receivership—the pre­ existing rights of attachment creditors must be preserved. State law would determine whether an attachment creditor would be entitled to a preference if the assets of the pre-vesting owner turn out to be insuffi­ cient to satisfy the obligation owed to the creditor. B. Effect on Foreign Litigation Legislation authorizing the vesting of Iranian property would, under principles of international law, not be enforceable against property located abroad.4 Iranian dollar deposits in U.S. branch banks abroad could be reached only if the foreign courts were to hold that such dollar deposits in U.S. branch banks are in reality located at the home office of the banks in the United States. O f course, that issue is pres­ ently being litigated in English and French courts with respect to the Presidential freeze order. While authorizing vesting of domestic assets, Congress could confirm the preexisting Presidential freezing order on Iranian governmentowned assets in the custody of American nationals abroad, in which case the pending litigation in England and France would continue. Congress could, in the alternative, lift the freeze on Iranian assets held by Americans abroad, thus mooting the litigation (as far as the extraterritorial reach of the Presidential freezing order is concerned). Jo hn M. H arm on Assistant Attorney General Office o f L egal Counsel *See Ingenohl v. Olsen, 273 U.S. 541, 544 (1927): “ If the A lien P roperty C ustodian purported to convey rights in English te rrito ry valid as against those w hom the English law protects he exceeded the pow ers that w ere o r could be given to him by the U nited States." A ttem pts by states to extend their seizure pow ers ex traterrito rially have failed. See, e.g.. Republic o f Iraq v. First N ational City Bank, 353 F.2d 47 (2d Cir. 1965), cert, denied. 382 U.S. 1027 (1966). 206

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Under Secretary of the Treasury for Enforcement The President does not have a legal duty to make a nomination for Under Secretary of the Treasury for Enforcement. If the President does not make a nomination, the Secretary of the Treasury could perform the duties himself or assign them to another official of his department. December 19, 2002 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY You have asked for our opinion whether the President has a legal duty to make a nomination for Under Secretary of the Treasury for Enforcement. We believe that he does not. You have further asked how, if the President does not make a nomination, the duties of the office may be discharged. We believe that the Secretary of the Treasury (“Secretary”) could perform the duties himself or assign them to another official of his department. I. Under 31 U.S.C. § 301(d) (2000), the Department of the Treasury “has . . . an Under Secretary for Enforcement . . . appointed by the President, by and with the advice and consent of the Senate.” At present, this Under Secretary supervises the Bureau of Alcohol, Tobacco, and Firearms, but the recently enacted Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002), which will become effective January 24, 2003, id. § 4, 116 Stat. at 2142, will largely transfer that bureau to the Department of Justice. Id. § 1111(c). The Treasury Department will retain only the bureau’s administration and revenue collection functions, which will be performed by a newly created Tax and Trade Bureau. Id. § 1111(d). The Tax and Trade Bureau is to be headed by an Administrator, “who shall perform such duties as assigned by the Under Secretary for Enforcement of the Department of the Treasury.” Id. § 1111(d)(2). In addition to assigning these duties, the Under Secretary for Enforcement implicitly will have one other statutory responsibility: to receive advice and recommendations from the Director of the Financial Crimes Enforcement Network about “matters relating to financial intelligence, financial criminal activities, and other financial activities.” 31 U.S.C.A. § 310(b)(2)(A) (West. Supp. 2002). In view of the highly limited statutory duties that the Under Secretary for Enforcement will exercise after the Homeland Security Act takes effect, you have raised the possibility that the President might not wish to fill the next vacancy in that office. 230 227-329 VOL_26_PROOF.pdf 240 10/22/12 11:13 AM Under Secretary of the Treasury for Enforcement II. Our opinions do not definitively resolve whether, in these circumstances, the President has a legal duty to make a nomination. Some statutes provide that the President “shall” nominate and, with the Senate’s advice and consent, appoint a particular officer, and these statutes may be understood to require the President to make a nomination within a reasonable time. See Memorandum [for the Acting Attorney General], from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Applicability of the 30-Day Vacancies Act Time Limit to Your Tenure as Acting Attorney General at 29-30 (Dec. 7, 1973) (the statute providing for appointment of the Attorney General and the President’s constitutional responsibilities “create a legal duty—and not merely political pressure—to submit a nomination within a reasonable time after the vacancy occurred”); see also Memorandum for the Attorney General, from Golden W. Bell, Assistant Solicitor General, Re: Vacancy in the Office of Attorney General, 8 Unpub. Op. A.S.G. 1538, 1540 (Dec. 5, 1938). But see Letter for the President, from Homer Cummings, Attorney General, 2 Unpub. Op. A.S.G. 447 (Jan. 24, 1934). 1 Other statutes provide that the President “may” make nominations and appointments. See, e.g., 28 U.S.C. § 504 (2000) (Deputy Attorney General). By their plain terms, these other statutes give the President the discretion to leave the offices unfilled. Here, the language of the statute is that the Treasury Department “has” an Under Secretary for Enforcement. 31 U.S.C. § 301(d). This language appears to describe, rather than prescribe, the make-up of the Department. Along these lines, the Senate Committee on Appropriations’ Explanatory Statement on the Emergency Supplemental Appropriations Act of 1994, the bill that enacted the language, observed that the provision would “permit the President to nominate, with the advice and consent of the Senate, a third Under Secretary of the Treasury.” 140 Cong. Rec. 2031 (1994) (emphasis added). 2 At the least, Congress imposed no clear obligation upon the President to make a nomination, and we would not read 1 In other instances, we have more generally identified a duty to submit a nomination when an official is “acting” in an office and thus when failure to make a nomination within a reasonable time might undercut the Senate’s role of advice and consent. See, e.g., Status of the Acting Director, Office of Management and Budget, 1 Op. O.L.C. 287, 290 (1977); Memorandum for the Attorney General, from Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, Re: Acting Designation (Dec. 12, 1997); see also Letter for the President, from Homer Cummings, Attorney General, 6 Unpub. Op. A.S.G. 756 (Sept. 24, 1936); Oversight of the Implementation of the Vacancies Act: Hearing on S. 1764 Before the Senate Comm. On Governmental Affairs, 105 Cong. 138, 148 (1998) (statement of Joseph N. Onek, Principal Deputy Associate Attorney General, and Daniel Koffsky, Special Counsel, Office of Legal Counsel). 2 Congress in 1993 directed that “[n]otwithstanding any other provision of law, the Secretary of the Treasury shall establish an Office of the Undersecretary for Enforcement within the Department of the Treasury by no later than February 15, 1994.” Pub. L. No. 103-123, § 105, 107 Stat. 1226, 1234 (1993). Congress enacted the current language of 31 U.S.C. § 301(d) in 1994. Neither of these enactments answers the question whether Congress has required the filling of the office to be established. 231 227-329 VOL_26_PROOF.pdf 241 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 one into the statute: “When Congress decides purposefully to enact legislation restricting or regulating presidential action, it must make its intent clear.” Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (emphasis added). To be sure, 31 U.S.C. § 301 also provides that “[t]he President may appoint, by and with the advice and consent of the Senate, an Assistant General Counsel who shall be the Chief Counsel for the Internal Revenue Service,” 31 U.S.C. § 301(f)(2), and the use of “may” in this provision arguably suggests that, in contrast, the “has . . . an Under Secretary for Enforcement” language was intended to impose a duty on the President to fill the office of Under Secretary for Enforcement. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted). But this possible inference hardly makes “clear” that Congress intended to fix a duty upon the President. Armstrong, 924 F.2d at 289. Indeed, the provision on the Chief Counsel continues: “The Chief Counsel is the chief law officer for the Service and shall carry out duties and powers prescribed by the Secretary.” 31 U.S.C. § 301(f)(2). As this additional language shows, section 301 does not invariably use the present tense of verbs (“has” or “is”) to refer to offices that necessarily will be filled, and no inference should be drawn from the use of the words “has . . . an Under Secretary for Enforcement” rather than some variation of the “may appoint” formulation. III. If the President leaves the office unfilled, the remaining duties of the office must be carried out by some other official. As noted above, the Under Secretary for Enforcement assigns duties to the Tax and Trade Bureau and receives advice and recommendations from the Director of the Financial Crimes Enforcement Network. Absent new legislation, there are, we believe, two basic ways in which these responsibilities could be performed. First, the Secretary himself could assign duties to the Tax and Trade Bureau and receive the reports from the Director of the Financial Crimes Enforcement Network. Under 31 U.S.C. § 321(c) (2000), “[d]uties and powers of officers and employees of the Department are vested in the Secretary,” with some express exceptions not relevant here. The Secretary, therefore, could carry out these duties. Interpreting similar language applicable to the Attorney General, 28 U.S.C. § 509 (2000), we have concluded that the provision sets up a “general standing rule that all functions performed by officers in the Department of Justice are vested ultimately in the Attorney General and may be performed by him.” Memorandum for the Deputy Attorney General, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of the Attorney General Over the 232 227-329 VOL_26_PROOF.pdf 242 10/22/12 11:13 AM Under Secretary of the Treasury for Enforcement National Institute of Justice and the Bureau of Justice Statistics at 2 (Oct. 14, 1980) (“1980 Opinion”). We would find a similar “general standing rule” under 31 U.S.C. § 321(c). Although this “standing rule” may be overcome when, for example, there is a “specific and explicit reservation of ‘final’ decisionmaking power” in a subordinate official, 1980 Opinion at 2, no such reservation or other limit applies to the duties of the Under Secretary for Enforcement. See also, e.g., Vacancy Act (5 U.S.C. § 3345-3349)—Law Enforcement Assistance Administration, 2 Op. O.L.C. 72, 74 (1978) (the functions of the Law Enforcement Assistance Administration, unlike “most of the components of the Department,” were not “completely vested in the Attorney General,” although the Attorney General had supervisory power). Accordingly, the Secretary himself could perform those duties. Second, we believe that the Secretary could exercise his power under 31 U.S.C. § 321(b)(2) to “delegate [his] duties and powers . . . to another officer or employee of the Department of the Treasury.” With 31 U.S.C. § 321(c) having vested in the Secretary the duties of the Under Secretary for Enforcement, section 321(b)(2) would allow the Secretary to assign those duties to another officer or employee of the Treasury Department. Once again, we have recognized the lawfulness of similar arrangements under the statutes governing the Department of Justice. See Memorandum for the Deputy Attorney General, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, and Rosemary Hart, Senior Counsel, Office of Legal Counsel, Re: Granting Special Deputy United States Marshal Status to Private Security Guards at 3 n.1 (Oct. 30, 2001) (function of the Marshals Service is vested in the Attorney General and delegated to the Deputy Attorney General). We can identify no bar to the exercise of this authority in the present case. Although Congress may restrict the transfers of particular authorities to particular components, see, e.g., 5 U.S.C. app. 3, § 9(a)(2) (2000) (ordinarily barring the transfer of “program operating responsibilities” to an Inspector General), no such restriction appears applicable here. Further, under the Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d (2000), if a statute or regulation provided that only the Under Secretary of Enforcement could perform a particular responsibility, and if that position became vacant, only the Secretary of the Treasury himself or an Acting Under Secretary for Enforcement could perform that function or duty. See 5 U.S.C. § 3348(a)(2), (b). Here, however, the statutes do not require the Under Secretary for Enforcement personally to carry out the assigned duties, rather than delegating them; we have found no codified regulation requiring such personal action, see 31 C.F.R. §§ 1.1, 1.20 (2002); and we are informed by your office that there are no such uncodified regulations or orders. We therefore believe that the 233 227-329 VOL_26_PROOF.pdf 243 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 Vacancies Reform Act would not preclude the Secretary from delegating the duties in question to another official of the Department. 3 M. EDWARD WHELAN III Principal Deputy Assistant Attorney General Office of Legal Counsel 3 We do not intend here to set out a comprehensive list of all the kinds of restrictions that might apply to any transfer of authority within the Department of the Treasury, but confine ourselves to the present case. We also note that we do not address any provisions governing the transfer of funds necessary to effect a transfer of responsibilities. See, e.g., 31 U.S.C. § 321(b)(3) (the Secretary “may transfer within the Department the records, property, officers, employees, and unexpended balances of appropriations, allocations, and amounts of the Department that the Secretary considers necessary to carry out a delegation” under section 301(b)(2)). 234 227-329 VOL_26_PROOF.pdf 244 10/22/12 11:13 AM

Write a legal research memo on the following topic.

Congressional Requests for Confidential Executive Branch Information This memorandum summarizes the principles and practices governing congressional requests for confidential executive branch information. June 19, 1989 M em orandum O pinion for th e G en eral C ounsel ’s C onsultative G rou p This memorandum summarizes the principles and practices governing congressional requests for confidential executive branch information. As discussed below, the executive branch’s general practice has been to attempt to accommodate whatever legitimate interests Congress may have in obtaining the information, while, at the same time, preserving executive branch interests in maintaining essential confidentiality. Only when the accommodation process fails to resolve a dispute and a sub­ poena is issued does it become necessary for the President to consider asserting executive privilege. I. Congress’ Oversight Authority The constitutional role of Congress is to adopt general legislation that will be implemented — “executed” — by the executive branch. The courts have recognized that this general legislative interest gives Congress investigatory authority. Both Houses of Congress have power, “through [their] own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.” McGrain v. Daugherty, 273 U.S. 135, 160 (1927). The issuance of subpoenas in aid of this function “has long been held to be a legitimate use by Congress of its power to investigate,” Eastland v. United States Serviceman’s Fund, 421 U.S. 491, 504 (1975), provided that the investigation is “related to, and in furtherance of, a legitimate task of the Congress.” Watkins v. United States, 354 U.S. 178, 187 (1957). The inquiry must pertain to subjects “on which legislation could be had.” McGrain v. Daugherty, 273 U.S. at 177. Thus, Congress’ oversight authority 153 is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution. Broad as it is, the power is not, however, without limita­ tions. Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it can­ not inquire into matters which are within the exclusive province of one of the other branches of the Government. Barenblatt v. United States, 360 U.S. 109, 111-12 (1959). II. Executive Privilege If it is established that Congress has a legitimate legislative purpose for its oversight inquiry, the executive branch’s interest in keeping the infor­ mation confidential must be assessed. This subject is usually discussed in terms of “executive privilege,” and that convention is used here. The question, however, is not strictly speaking just one of executive privilege. While the considerations that support the concept and assertion of exec­ utive privilege apply to any congressional request for information, the privilege itself need not be claimed formally vis-a-vis Congress except in response to a lawful subpoena; in responding to a congressional request for information, the executive branch is not necessarily bound by the lim­ its of executive privilege. Executive privilege is constitutionally based. To be sure, the Consti­ tution nowhere expressly states that the President, or the executive branch generally, ei\joys a privilege against disclosing information requested by the courts, the public, or the legislative branch. The exis­ tence of such a privilege, however, is a necessary corollary of the execu­ tive function vested in the President by Article II of the Constitution.1It has been asserted by numerous Presidents from the earliest days of our Nation, and it was explicitly recognized by the Supreme Court in United States v. Nixon, 418 U.S. 683, 705-06 (1974). There are at least three generally-recognized components of executive privilege: state secrets, law enforcement, and deliberative process. Since most disputes with Congress in this area in recent years have concerned the privilege for executive branch deliberations, this memorandum will focus on that component. See generally Confidentiality of the Attorney General’s Communications in Counseling the President, 6 Op. O.L.C. 481, 484-90 (1982). 1 The privilege to withhold information is implicit in the scheme of Article II and particularly in the pro­ visions that “(t]he executive Power shall be vested in a President of the United States of America," U S Const, art. II, § 1, cl. 1, and that the President shall “take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3. 154 The first congressional request for information from the executive branch occurred in 1792, in the course of a congressional investigation into the failure of an expedition under the command of one General St. Clair. President Washington called his Cabinet together to consider his response, stating that he could conceive that there might be papers of so secret a nature that they ought not be given up. The President and his Cabinet concluded “that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public .” 1 Writings of Thomas Jefferson 304 (1903) (emphasis added). While President Washington ulti­ mately determined in the St. Clair case that the papers requested could be furnished without ii\jury to the public, he refused four years later to com­ ply with a House committee’s request for copies of instructions and other documents employed in connection with the negotiation of a treaty with Great Britain. The practice of refusing congressional requests for information, on the ground that the national interest would be harmed by the disclosure, was employed by many Presidents in the ensuing years. See generally History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, Part I - Presidential Invocations of Executive Privilege Vis-a-Vis Congress, 6 Op. O.L.C. 751 (1982). The privilege was most frequently asserted in the areas of foreign affairs and military and national security secrets; it was also invoked in a variety of other con­ texts, including executive branch investigations. In 1954, in instructing the Secretary of Defense concerning a Senate investigation, President Eisenhower asserted that the privilege extends to deliberative communi­ cations within the executive branch: Because it is essential to efficient and effective adminis­ tration that employees of the Executive Branch be in a posi­ tion to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regard­ ing the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. Pub. Papers of Dwight D. Eisenhower 483-84 (1954). The Supreme Court has recognized that the Constitution gives the President the power to protect the confidentiality of executive branch deliberations. See generally Nixon v. Administrator of Gen. Servs., 433 155 U.S. 425, 446-55 (1977). This power is independent of the President’s power over foreign affairs, national security, or law enforcement; it is rooted instead in “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential deci­ sionmaking.” United States v. Nixon, 418 U.S. at 708. It necessarily follows — and the Supreme Court so held in United States v. Nixon — that communications among the President and his advisers eryoy “a presumptive privilege” against disclosure in court. Id.2 The reasons for this privilege, the Nixon Court explained, are “plain.” “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Id. at 705. Often, an adviser’s remarks can be fully understood only in the context of a particular debate and of the positions others have taken. Advisers change their views, or make mistakes which others cor­ rect; this is indeed the purpose of internal debate. The result is that advis­ ers are likely to be inhibited if they must anticipate that their remarks will be disclosed to others, not party to the debate, who may misunderstand the significance of a particular statement or discussion taken out of con­ text. Some advisers may hesitate — out of self-interest — to make remarks that might later be used against their colleagues or superiors. As the Court stated, “[a] president and those who assist him must be free to explore alternatives in the process of shaping policies and making deci­ sions and to do so in a way many would be unwilling to express except privately.” Id. at 708. These reasons for the constitutional privilege have at least as much force when it is Congress, instead of a court, that is seeking information. The possibility that deliberations will be disclosed to Congress is, if any­ thing, more likely to chill internal debate among executive branch advis­ ers. When the Supreme Court held that the need for presidential commu­ nications in the criminal trial of President Nixon’s close aides outweighed the constitutional privilege, an important premise of its decision was that it did not believe that “advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.” Id. at 712. By contrast, congressional requests for executive branch deliberative information are anything but infrequent. 2The Nixon Court explained that the privilege is constitutionally based: [T]he privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection o f the confidentiality of Presidential communications has similar constitutional underpinnings. 418 U.S. at 705-06 (footnote omitted). The Court also acknowledged that the privilege stems from the principle of separation of powers: “The privilege is fundamental to the operation of Government and inextncably rooted in the separation of powers under the Constitution.” Id at 708. 156 Moreover, compared to a criminal prosecution, a congressional investi­ gation is usually sweeping; its issues are seldom narrowly defined, and the inquiry is not restricted by the rules of evidence. Finally, when Congress is investigating, it is by its own account often in an adversarial position to the executive branch and initiating action to override judg­ ments made by the executive branch. This increases the likelihood that candid advice from executive branch advisers will be taken out of con­ text or misconstrued. For all these reasons, the constitutional privilege that protects executive branch deliberations against judicial subpoenas must also apply, perhaps even with greater force, to Congress’ demands for information. The United States Court of Appeals for the District of Columbia Circuit has explicitly held that the privilege protects presidential communica­ tions against congressional demands. During the Watergate investigation, the Court of Appeals rejected a Senate committee’s efforts to obtain tape recordings of conversations in President Nixon’s offices. The court held that the tapes were constitutionally privileged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm, on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc). Indeed, the court held that the committee was not entitled to the recordings unless it showed that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions.” Id. at 731 (emphasis added).3 Finally, history is replete with examples of the executive’s assertion of privilege in the face of congressional requests for deliberative process information. We have previously recounted the incidents in which Presidents, beginning with President Washington, have withheld from Congress documents that reflected deliberations within the executive branch. History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, Part II - Invocations of Executive Privilege by Exective Officials, 6 Op. O.L.C. 782 (1982). III. Accommodation Process Where Congress has a legitimate need for information that will help it legislate, and the executive branch has a legitimate, constitutionally rec­ ognized need to keep certain information confidential, at least one court 3 The Supreme Court has assumed that the constitutional privilege protects executive branch delibera­ tions against Congress to some degree. See United States v Nixon, 418 U S at 712 n 19. Moreover, the Court held in Administrator of General Services, that the constitutional privilege protects executive branch deliberations from disclosure to members of the same branch in a later administration, the Court rejected the specific claim of privilege in the case not because the privilege was inapplicable but because the intrusion was limited and the interests justifying the intrusion were strong and nearly unique. See 433 U S at 446-55. Since the Court has held that the privilege protects executive branch communications against compelled disclosure to the judicial branch and to later members of the executive branch, there is every reason to believe that the Court would hold that it protects against compelled disclosure to Congress 157 has referred to the obligation of each branch to accommodate the legiti­ mate needs of the other. This duty to accommodate was described by the D.C. Circuit in a case involving a House committee’s request to a private party for information which the executive branch believed should not be disclosed. The court said: The framers ... expect[ed] that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dis­ pute in the manner most likely to result in efficient and effec­ tive functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accom­ modation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. [Because] it was a deliberate feature of the constitutional scheme to leave the allocation of powers unclear in certain situations, the resolution of conflict between the coordinate branches in these situations must be regarded as an oppor­ tunity for a constructive modus vivendi, which positively promotes the functioning of our system. The Constitution contemplates such accommodation. Negotiation between the two branches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme. United States v. AT&T, 567 F.2d 121, 127, 130 (D.C. Cir. 1977) (footnotes omitted). In an opinion he issued in connection with a 1981 executive privilege dispute involving a committee of the House of Representatives and the Department of Interior, Attorney General William French Smith captured the essence of the accommodation process: The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch. Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981) (“Smith Opinion”). 158 The process of accommodation requires that each branch explain to the other why it believes its needs to be legitimate. Without such an explanation, it may be difficult or impossible to assess the needs of one branch and relate them to those of the other. At the same time, requiring such an explanation imposes no great burden on either branch. If either branch has a reason for needing to obtain or withhold information, it should be able to express it. The duty of Congress to justify its requests not only arises directly from the logic of accommodation between the two branches, but it is estab­ lished in the case law as well. In United States v. Nixon, the Supreme Court emphasized that the need for evidence was articulated and specific. 418 U.S. at 700-02, 713. Even more to the point is Senate Select Committee on Presidential Campaign Activities. In that case, the D.C. Circuit stated that the sole question was “whether the subpoenaed evidence is demon­ strably critical to the responsible fulfillment of the Committee’s functions.” 498 F.2d at 731. The court held that the Committee had not made a suffi­ cient showing. It pointed out that the President had already released tran­ scripts of the conversations of which the Committee was seeking record­ ings. The Committee argued that it needed the tape recordings “in order to verily the accuracy of’ the transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the inflec­ tion and tone of voice of the speakers. Id. at 723-33. But the court answered that, in order to legislate, a committee of Congress seldom needs a “precise reconstruction of past events.” Id. at 732. The court concluded: The Committee has ... shown no more than that the mate­ rials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the tran­ scripts may contain. Id. at 733. For this reason, the court stated, “the need demonstrated by the Select Committee ... is too attenuated and too tangential to its func­ tions” to override the President’s constitutional privilege. Id. Senate Select Committee thus establishes Congress’ duty to articulate its need for particular materials — to “point[] to ... specific legislative deci­ sions that cannot responsibly be made without access to materials unique­ ly contained in” the privileged document it has requested. Moreover, this case suggests that Congress will seldom have any legitimate legislative interest in knowing the precise predecisional positions and statements of particular executive branch officials. When Congress demands such infor­ mation, it must explain its need carefully and convincingly. 159 It is difficult to generalize about the kind o f accommodation with respect to deliberative process information that may be appropriate in particular cases. Whether to adhere to the consistent general policy of confidentiality for such information will depend on the facts o f the spe­ cific situation. Certain general principles do apply, however. As Attorney General Smith explained in advising President Reagan: [T]he interest o f Congress in obtaining information for oversight purposes is ... considerably weaker than its inter­ est when specific legislative proposals are in question. At the stage o f oversight, the congressional interest is a gener­ alized one o f ensuring that the laws are well and faithfully executed and o f proposing remedial legislation if they are not. The information requested is usually broad in scope and the reasons for the request correspondingly general and vague. In contrast, when Congress is examining specif­ ic proposals for legislation, the information which Congress needs to enable it to legislative effectively is usu­ ally quite narrow in scope and the reasons for obtaining that information correspondingly specific. A specific, artic­ ulated need for information will weigh substantially more heavily in the constitutional balancing than a generalized interest in obtaining information. Smith Opinion, 5 Op. O.L.C. at 30. Moreover, Attorney General Smith explained, information concerning ongoing deliberations need rarely be disclosed: [T]he congressional oversight interest w ill support a demand for predecisional, deliberative documents in the possession o f the Executive Branch only in the most unusu­ al circumstances. It is important to stress that congression­ al oversight o f Executive Branch actions is justifiable only as a means o f facilitating the legislative task o f enacting, amending, or repealing laws. When such “oversight” is used as a means o f participating directly in an ongoing process of decisionmaking within the Executive Branch, it oversteps the bounds o f the proper legislative function. Restricted to its proper sphere, the congressional oversight function can almost always be properly conducted with reference to information concerning decisions which the Executive Branch has already reached. Congress will have a legitimate need to know the preliminary positions taken by Executive Branch officials during internal deliberations only in the rarest o f circumstances. Congressional demands, under the 160 guise o f oversight, for such preliminary positions and delib­ erative statements raise at least the possibility that the Congress has begun to go beyond the legitimate oversight function and has impermissibly intruded on the Executive Branch’s function o f executing the law. At the same time, the interference with the President’s ability to execute the law is greatest while the decisionmaking process is ongoing. Id. at 30-31. IV. Procedures President Reagan’s November 4, 1982 Memorandum for the Heads o f Executive Departments and Agencies on “Procedures Governing Responses to Congressional Requests for Information” ( “Reagan Memorandum”) sets forth the long-standing executive branch policy in this area: The policy o f this Administration is to comply with Con­ gressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.... [E]xecutive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion o f the privilege is necessary. Historically, good faith negotiations between Congress and the executive branch have mini­ mized the need for invoking executive privilege, and this tradition o f accommodation should continue as the prima­ ry means o f resolving conflicts between the Branches. Reagan Memorandum at 1. The Reagan Memorandum also sets forth the procedures for asserting executive privilege in response to a congres­ sional request for information. Under the terms o f the Memorandum, an agency must notify and consult with the Attorney General, through the Assistant Attorney General for the Office o f Legal Counsel, as soon as it determines that compliance with the request raises a “substantial ques­ tion o f executive privilege.” The Memorandum further provides that executive privilege cannot be asserted without specific authorization by the President, based on recommendations made to him by the concerned agency head, the Attorney General, and the Counsel to the President. In practice, disputes with Congress in this area typically commence with an informal oral or written request from a congressional committee or subcommittee for information in the possession o f the executive branch. Most such requests are honored promptly; in some cases, how­ ever, the executive branch official may resist supplying some or all o f the 161 requested information either because o f the burden o f compliance or because the information is o f a sensitive nature. The executive branch agency and the committee staff will typically negotiate during this period to see if the dispute can be settled in a manner acceptable to both sides. In most cases this accommodation process is sufficient to resolve any dispute. On occasion, however, the process breaks down, and a subpoe­ na is issued. At that point, if further negotiation is unavailing, it is neces­ sary to consider asking the President to assert executive privilege. I f after assertion o f executive privilege the committee remains unsatis­ fied with the agency’s response, it may vote to hold the agency head in contempt o f Congress. If the full Senate or House o f Representatives then votes to hold the official in contempt, it might attempt to impose sanc­ tions by one o f three methods. First, it might refer the matter to a United States Attorney for reference to a grand jury. See 2 U.S.C. §§ 192, 194. Second, the Sergeant-at-Arms theoretically could be dispatched to arrest the official and detain him in the Capitol; if this unlikely event did occur, the official would be able to test the legality o f this detention through a habeas corpus petition, thereby placing in issue the legitimacy o f his actions in refusing to disclose the subpoenaed information. Third, and the most likely option due to legal and practical difficulties associated with the first two options, the Senate or House might bring an action in court to obtain a judicial order requiring compliance with the subpoena and contempt o f court enforcement orders if the court’s order is defied. WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel 162

Write a legal research memo on the following topic.

Recess Appointments Amid Pro Forma Senate Sessions A twenty-day Senate recess may give rise to presidential authority to make recess appointments. Congress’s provision for pro forma sessions during that twenty-day period does not have the legal effect of interrupting the recess for purposes of the Recess Appointments Clause. In this context, the President has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and may exercise his power to make recess appointments. January 6, 2012 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT * On December 17, 2011, the Senate agreed by unanimous consent to “adjourn and convene for pro forma sessions only, with no business conducted,” every Tuesday and Friday between that date and January 23, 2012. 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). During that period, on January 3, 2012, the Senate convened one such pro forma session to begin the second session of the 112th Congress and adjourned less than a minute later under its prior agreement. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012); see also U.S. Const. amend. XX, § 2. You asked whether the President has authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions. We advised you that he does. This opinion memorializes and elaborates on that advice. This Office has consistently advised that “a recess during a session of the Senate, at least if it is of sufficient length, can be a ‘Recess’ within the meaning of the Recess Appointments Clause” during which the President may exercise his power to fill vacant offices. Memorandum for Alberto R. * Editor’s Note: The Supreme Court considered the questions addressed in this opinion in NLRB v. Noel Canning, 573 U.S. 513 (2014), and held that the Recess Appointments Clause empowers the President to fill vacancies during intrasession recesses “of substantial length,” but that the Senate is in session for purposes of the Clause during a pro forma session in which the Senate retains the capacity to conduct business under its rules. Id. at 527, 550. The Court therefore held that three appointments made by President Obama during the period at issue in this opinion were invalid. Id. at 557. 15 36 Op. O.L.C. 15 (2012) Gonzales, Counsel to the President, from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments in the Current Recess of the Senate at 1 (Feb. 20, 2004) (“Goldsmith Memorandum”). 1 Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted. I. Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress. These pro forma sessions typically last only a few seconds, and apparently require the presence of only one Senator. 2 Senate orders adopted by unanimous consent provide in advance “A recess between sine die adjournment of one session and the convening of the next is also known as an intersession recess. A recess within a session is also known as an intrasession recess.” Henry B. Hogue & Richard S. Beth, Cong. Research Serv., Efforts to Prevent Recess Appointments Through Congressional Scheduling and Historical Recess Appointments During Short Intervals Between Sessions 3 n.6 (2011). “The number of days in a recess period is ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends.” Goldsmith Memorandum at 1. 2 See, e.g., 157 Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro forma session lasted from 11:00:02 until 11:00:34 a.m.); id. at D903 (daily ed. Aug. 12, 2011) (noting that day’s pro forma session lasted from 12:00:08 until 12:00:32 p.m.); 156 Cong. Rec. D1067 (daily ed. Oct. 26, 2010) (noting that day’s pro forma session lasted from 12:00:04 until 12:00:31 p.m.); 154 Cong. Rec. D1257 (daily ed. Oct. 30, 2008) (noting that day’s pro forma session lasted from 9:15:00 until 9:15:08 a.m.); id. at D665 1 16 Recess Appointments Amid Pro Forma Senate Sessions that there is to be “no business conducted” at such sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011); id. at S7876 (daily ed. Nov. 18, 2011); id. at S6891 (daily ed. Oct. 20, 2011); id. at S6009 (daily ed. Sept. 26, 2011); id. at S5292 (daily ed. Aug. 2, 2011); id. at S3465 (daily ed. May 26, 2011); 156 Cong. Rec. S7775 (daily ed. Sept. 29, 2010); 154 Cong. Rec. S10,958 (daily ed. Dec. 11, 2008); id. at S10,776 (daily ed. Nov. 20, 2008); id. at S8077 (daily ed. Aug. 1, 2008); id. at S2194 (daily ed. Mar. 13, 2008); id. at S1085 (daily ed. Feb. 14, 2008); 153 Cong. Rec. S16,069 (daily ed. Dec. 19, 2007); id. at S14,661 (daily ed. Nov. 16, 2007); accord 154 Cong. Rec. S4849 (daily ed. May 22, 2008) (recess order stating that “no action or debate” is to occur during pro forma sessions). 3 The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments. See 154 Cong. Rec. S7558 (daily ed. July 28, 2008) (statement of Sen. Reid); see also 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007) (statement of Sen. Reid) (“[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”). While this practice was initiated by Senate action, more recently the Senate’s use of such sessions appears to have been forced by actions of the House of Representatives. See generally Henry B. Hogue & Richard S. Beth, Cong. Research Serv., Efforts to Prevent Recess Appointments Through Congressional Scheduling and Historical Recess Appointments During Short Intervals Between Sessions 5–8 (2011). On May 25, 2011, twenty Senators noted the Senate’s use of pro forma sessions in 2007 and “urge[d] [the Speaker of the House] to refuse to pass any resolution (daily ed. May 27, 2008) (noting that day’s pro forma session lasted from 9:15:02 until 9:15:31 a.m.). 3 We are aware of only two occasions in this period in which a Senate order did not provide that no business would be conducted in pro forma sessions held during a recess. On the first, the relevant order provided that there would be “no business conducted, except with the concurrence of the two leaders,” 154 Cong. Rec. S10,504 (daily ed. Oct. 2, 2008); on the second, the relevant order was silent, id. at S6336 (daily ed. June 27, 2008). It is unclear, however, whether the use of pro forma sessions on the latter occasion was intended to prevent recess appointments, as only one pro forma session was scheduled during the ten-day recess. See id. 17 36 Op. O.L.C. 15 (2012) to allow the Senate to recess or adjourn for more than three days for the remainder of the [P]resident’s term.” Press Release, Senator David Vitter, Vitter, DeMint Urge House to Block Controversial Recess Appointments (May 25, 2011), http://vitter.senate.gov/public/index.cfm? FuseAction=PressRoom.PressReleases. The next month, eighty Representatives similarly requested that the Speaker, House Majority Leader, and House Whip take “all appropriate measures . . . to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.” Letter for John Boehner, Speaker of the House, et al., from Jeff Landry, Member of Congress (June 15, 2011), http://landry.house.gov/sites/landry.house.gov/files/ documents/Freshmen%20Recess%20Appointment%20Letter.pdf. Consistent with these requests, “no concurrent resolution of adjournment ha[s] been introduced in either chamber since May 12, 2011.” Henry B. Hogue, Cong. Research Serv., RS21308, Recess Appointments: Frequently Asked Questions 3 (rev. Dec. 12, 2011). And because the Constitution provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days,” U.S. Const. art. I, § 5, cl. 4, both Houses have convened pro forma sessions during periods of extended absence. Public statements by some Members of the Senate reveal that they do not consider these pro forma sessions to interrupt a recess. See, e.g., 157 Cong. Rec. S6826 (daily ed. Oct. 20, 2011) (statement of Sen. Inhofe) (referring to the upcoming “1-week recess”); id. at S5035 (daily ed. July 29, 2011) (statement of Sen. Thune) (calling on the Administration to send trade agreements to Congress “before the August recess” even though “[w]e are not going to be able to consider these agreements until September”); id. at S4182 (daily ed. June 29, 2011) (statement of Sen. Sessions) (“Now the Senate is scheduled to take a week off, to go into recess to celebrate the Fourth of July[.]”); 156 Cong. Rec. at S8116–17 (daily ed. Nov. 19, 2010) (statement of Sen. Leahy) (referring to the period when “the Senate recessed for the elections” as the “October recess”); 154 Cong. Rec. S7984 (daily ed. Aug. 1, 2008) (statement of Sen. Hatch) (referring to upcoming “5-week recess”); id. at S7999 (daily ed. Aug. 1, 2008) (statement of Sen. Dodd) (noting that Senate would be in “adjournment or recess until the first week in September”); id. at S7713 (daily ed. July 30, 2008) (statement of Sen. Cornyn) (referring to the 18 Recess Appointments Amid Pro Forma Senate Sessions upcoming “month-long recess”); see also id. at S2193 (daily ed. Mar. 13, 2008) (statement of Sen. Leahy) (referring to the upcoming “2-week Easter recess”). Likewise, the Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions. The Senate’s web page on the sessions of Congress, which defines a recess as “a break in House or Senate proceedings of three days or more, excluding Sundays,” treats such a period of recess as unitary, rather than breaking it into three-day segments. See United States Senate, The Dates of Sessions of the Congress, http://www.senate.gov/reference/Sessions/sessionDates.htm (last visited ca. Jan. 2012). The Congressional Directory of the 112th Congress, published by Congress, see 44 U.S.C. § 721(a), does the same. See 2011– 2012 Congressional Directory 538 n.2 (Joint Comm. on Printing, 112th Cong., comp. 2011). More substantively, despite the pro forma sessions, the Senate has taken special steps to provide for the appointment of congressional personnel during longer recesses (including this one), indicating that the Senate recognizes that it is not in session during this period for the purpose of making appointments under ordinary procedures. 4 And when messages are received from the President during the recess, they are not laid before the Senate and entered into the Congressional Record until the Senate returns for a substantive session, even if pro forma sessions are See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (providing that “notwithstanding the upcoming recess or adjournment of the Senate, the President of the Senate, the President pro tempore, and the majority and minority leaders [are] authorized to make appointments to commissions, committees, boards, conferences, or interparliamentary conferences authorized by the law, by concurrent action of the two Houses, or by order of the Senate”); id. at S7876 (daily ed. Nov. 18, 2011) (similar); id. at S5292 (daily ed. Aug. 2, 2011) (similar); id. at S3463 (daily ed. May 26, 2011) (similar); 156 Cong. Rec. S7775 (daily ed. Sept. 29, 2010) (similar); 154 Cong Rec. S10,958 (daily ed. Dec. 11, 2008) (similar); id. at S10,776 (daily ed. Nov. 20, 2008) (similar); id. at S10,427 (daily ed. Oct. 2, 2008) (similar); id. at S8077 (daily ed. Aug. 1, 2008) (similar); id. at S6332 (daily ed. June 27, 2008) (similar); id. at S4848 (daily ed. May 22, 2008) (similar); id. at S2190 (daily ed. Mar. 13, 2008) (similar); id. at S1085 (daily ed. Feb. 14, 2008) (similar); 153 Cong. Rec. S16,060 (daily ed. Dec. 19, 2007) (similar); id. at S14,655 (daily ed. Nov. 16, 2007) (similar). The Senate has taken similar steps before recesses that are not punctuated by pro forma sessions. See, e.g., 156 Cong. Rec. S6974 (daily ed. Aug. 5, 2010) (providing for appointment authority before an intrasession recess expected to last for thirty-nine days); 153 Cong. Rec. S10,991 (daily ed. Aug. 3, 2007) (same, recess of thirty-two days). 4 19 36 Op. O.L.C. 15 (2012) convened in the meantime. 5 On the other hand, we have been informed that at least during the August 2008 recess, the Senate Executive Clerk did not return pending nominations when the Senate went into recess pursuant to Senate Standing Rule XXXI, which provides for the return of nominations that have not been acted upon when the Senate recesses “for more than thirty days.” Senate Rule XXXI(6), Standing Rules of the Senate, in Senate Manual, S. Doc. No. 112-1, at 58 (2011) (“Senate Standing Rules”). This omission may reflect the Executive Clerk’s treatment of that impending recess as a series of shorter adjournments rather than a single thirty-eight-day recess. II. To address the President’s authority to make recess appointments during a recess including pro forma sessions, we consider two distinct issues: The first is whether the President has authority to make a recess appointment during the recess at issue here, an intrasession recess of twenty days. We conclude that he does. The opinions of the Attorney General and this Office, historical practice, and the limited judicial authority that exists all provide strong support for that conclusion. Thereafter, we consider whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted. Based primarily on the traditional understanding that the Recess Appointments Clause is to be given a practical construction focusing on the Senate’s ability to provide advice and consent to nominations, we conclude that while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess. The question is a novel one, and the See, e.g., 157 Cong. Rec. S7905 (daily ed. Nov. 28, 2011) (message from the President “received during adjournment of the Senate on November 21, 2011,” laid before the Senate); id. at S7881 (daily ed. Nov. 25, 2011) (record of pro forma session with no mention of receipt of presidential message); id. at S7879 (daily ed. Nov. 22, 2011) (same); S6916 (daily ed. Oct. 31, 2011) (message from the President “received during adjournment of the Senate on October 25, 2011,” laid before the Senate); id. at S6895 (daily ed. Oct. 27, 2011) (record of pro forma session with no mention of receipt of presidential message). 5 20 Recess Appointments Amid Pro Forma Senate Sessions substantial arguments on each side create some litigation risk for such appointments. We draw on the analysis developed by this Office when it first considered the issue. See Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009). A. The Recess Appointments Clause of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3. The Department of Justice “has long interpreted the term ‘recess’ to include intrasession recesses if they are of substantial length.” Intrasession Recess Appointments, 13 Op. O.L.C. at 272; see also Goldsmith Memorandum at 1–2; Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15, 15–16 (1992); Recess Appointments—Compensation (5 U.S.C. § 5503), 3 Op. O.L.C. 314, 316 (1979); Recess Appointments, 41 Op. Att’y Gen. 463, 468 (1960); Daugherty Opinion, 33 Op. Att’y Gen. at 21–22, 25. Under a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office, the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. at 272 (quoting Daugherty Opinion, 33 Op. Att’y Gen. at 24). 6 Although “the line of 6 In 1868, Attorney General Evarts approved the contemplated appointments of three officials during a fifty-six-day intrasession recess of the Senate without remarking upon the nature of the recess. See Case of District Attorney for Eastern District of Pennsylvania, 12 Op. Att’y Gen. 469, 469–70 (1868) (observing that the office “is now vacant during the recess of the Senate” and opining that “it is competent for the President to grant a commission”); see also Case of the Collectorship of New Orleans, 12 Op. Att’y Gen. 449 (1868); Case of the Collectorship of Customs for Alaska, 12 Op. Att’y Gen. 455 (1868). It is possible that Attorney General Evarts was not aware that the Senate had merely adjourned to a date certain: he referred in each opinion to the “late session” of the Senate. See, e.g., 12 Op. Att’y Gen. at 451. Attorney General Knox, too, was apparently 21 36 Op. O.L.C. 15 (2012) demarcation can not be accurately drawn” in determining whether an intrasession recess is of sufficient length to permit the President to make a recess appointment, “the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” Daugherty Opinion, 33 Op. Att’y Gen. at 25; see also id. (“Every presumption is to be indulged in favor of the validity of whatever action [the President] may take.”); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 161 (1996) (“Dellinger Opinion”) (“[T]he President has discretion to make a good-faith determination of whether a given recess is adequate to bring the Clause into play.”). “Ultimately, resolution of the question whether an adjournment is of sufficient duration to justify recess appointments requires the application of judgment to particular facts.” Intrasession Recess Appointments, 13 Op. O.L.C. at 273. We have little doubt that a twenty-day recess may give rise to presidential authority to make recess appointments. Attorneys General and this Office have repeatedly affirmed the President’s authority to make recess appointments during intrasession recesses of similar or shorter length. See, e.g., Goldsmith Memorandum at 2–3 (recognizing President’s authority to make a recess appointment during an intrasession recess of eleven days); Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. at 15–16 (same, eighteen days); Intrasession Recess Appointments, 13 Op. O.L.C. at 272–73 (thirty-three days); Recess Appointments, 41 Op. Att’y Gen. at 464–65 (thirty-six days); Daugherty Opinion, 33 Op. Att’y Gen. at 25 (twenty-eight days). 7 unaware of this fact when he cited one of these opinions to support his conclusion that it is only the “period following the final adjournment for the session which is the recess during which the President has power to fill vacancies” and remarked that “[t]he opinions of Mr. Wirt . . . and all the other opinions on this subject relate only to appointments during the recess of the Senate between two sessions of Congress.” Appointments of Officers—Holiday Recess, 23 Op. Att’y Gen. 599, 601–02 (1901). The Daugherty Opinion reversed Attorney General Knox’s conclusion about appointments in intrasession recesses. 7 In 1985, the Office “cautioned against a recess appointment during [what was mistakenly believed to be] an 18-day intrasession recess,” Intrasession Recess Appointments, 13 Op. O.L.C. at 273 n.2 (citing Memorandum for the Files from Herman Marcuse, Attorney-Adviser, Office of Legal Counsel, Re: Recess Appointments to the Export 22 Recess Appointments Amid Pro Forma Senate Sessions The recess appointment practice of past Presidents confirms the views expressed in these opinions. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (relying on the accumulated “historical gloss” to discern the scope of presidential authority where “the source of the President’s power to act . . . does not enjoy any textual detail”); see also Evans v. Stephens, 387 F.3d 1220, 1225–26 (11th Cir. 2004) (en banc) (relying in part on historical practice to reject “the argument that the recess appointment power may only be used in an intersession recess”). Intrasession recesses were rare in the early years of the Republic; when they occurred, they were brief. See Congressional Directory 522–25 (listing five intrasession recesses before the Civil War, ranging from five to twelve days in length). But as intrasession recesses became common, so too did intrasession recess appointments. President Johnson is believed to have made the first intrasession recess appointments in 1867. Henry B. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Stud. Q. 656, 666 (2004). 8 “The length of the recess may have triggered the appointments, because none of the intrasession recesses taken by the Senate until that time had lasted more than 15 days.” Id. Presidents Harding and Coolidge each made intrasession recess appointments in the 1920s (during recesses of twenty-eight and fourteen days, respectively), see 61 Cong. Rec. 5646 (1921) (recess from Aug. 24, 1921, until Sept. 21, 1921); id. at 5737 (recess appointment to the Register of the Land Office made on Aug. 30, 1921); 69 Cong. Rec. 910 (1927) (recess from Dec. 21, 1927, until Jan. 4, 1928); Declaration of Ronald R. Geisler, Chief Clerk of the Executive Clerk’s Office, Exhibit B, Bowers v. Moffett, Civ. Action No. 82-0195 (D.D.C. Jan. 22, 1982) (recess appointment to the Interstate Import Bank (Jan. 28, 1985) (“Marcuse Memorandum”)). This reluctance was attributable in part to factors other than the length of the recess, and we did “not say that [the appointments] would be constitutionally invalid as a matter of law,” Marcuse Memorandum at 1–3. Regardless, the caution was not heeded, and the appointments were made in a fourteen-day intrasession recess. Id. at 4. 8 As an analyst from the Congressional Research Service has explained, “it is virtually impossible” to identify all recess appointments before 1965, because before that date “recess appointments were recorded in a haphazard fashion.” Memorandum for Senate Committee on Banking, Housing and Urban Affairs, from Rogelio Garcia, Analyst in American National Government, Government Division, Congressional Research Service, Library of Congress, Re: Number of Recess Appointments, by Administration, From 1933 to 1984, at 1 (Mar. 13, 1985). 23 36 Op. O.L.C. 15 (2012) Commerce Commission made January 3, 1928), and “[b]eginning in 1943, presidents started to routinely make recess appointments during long intrasession recesses.” Hogue, Recess Appointments, 34 Presidential Stud. Q. at 666; see also 139 Cong. Rec. 15,273 (1993) (compilation of intrasession recess appointments from 1970 to 1993). The last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer. 9 There is significant (albeit not uniform) evidence that the Executive Branch’s view that recess appointments during intrasession recesses are constitutional has been accepted by Congress and its officers. Most relevant, in our view, is the Pay Act, 5 U.S.C. § 5503 (2006), which sets out the circumstances in which a recess appointee may be paid a salary from the Treasury. The Attorney General has long taken the position that the Act constitutes congressional acquiescence to recess appointments under circumstances where the Act would permit payment. See Recess Appointments, 41 Op. Att’y Gen. at 466. In 1948, the Comptroller General considered whether the Act permitted the payment of officials appointed during an intrasession recess. Appointments—Recess Appointments, 28 Comp. Gen. 30 (1948). After acknowledging the “accepted view” that an intrasession recess “is a recess during which an appointment may properly be made,” the Comptroller General concluded that the Act was intended to permit payment to all who are appointed “during periods when the For example, using the method of counting explained above, see supra note 1, President Obama made three recess appointments during a twelve-day recess; President George W. Bush made twenty-one appointments across several eleven-day recesses, four appointments during a twelve-day recess, and four appointments during a fourteen-day recess; President Clinton made one recess appointment during a ten-day recess, another appointment during an eleven-day recess, and seventeen appointments across several twelve-day recesses; President George H.W. Bush made fourteen appointments during a thirteen-day recess; and President Reagan made two appointments during a fourteen-day recess. See Press Release, President Obama Announces Recess Appointments to Key Administration Positions (July 7, 2010), http://www.whitehouse.gov/the-press-office/ president-obama-announces-recess-appointments-key-administration-positions-0; Henry B. Hogue & Maureen Bearden, Cong. Research Serv., RL33310, Recess Appointments Made by President George W. Bush, January 20, 2001–October 31, 2008, at 9–10 (2008); Rogelio Garcia, Cong. Research Serv., RL30821, Recess Appointments Made by President Clinton 9 (2001); Rogelio Garcia, Cong. Research Serv., Recess Appointments Made by President George Bush 3 (1996); Rogelio Garcia, Cong. Research Serv., Recess Appointments Made by President Reagan 8 (1988). 9 24 Recess Appointments Amid Pro Forma Senate Sessions Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date.” Id. at 34, 37. “Considering that the Comptroller General is an officer in the legislative branch, and charged with the protection of the fiscal prerogatives of the Congress, his full concurrence in the position taken by the Attorney General . . . is of signal significance,” Recess Appointments, 41 Op. Att’y Gen. at 469, and in the more than sixty years since the opinion was issued, Congress has not amended the statute to compel a different result. 10 While there is little judicial precedent addressing the President’s authority to make intrasession recess appointments, what decisions there are uniformly conclude that the President does have such authority. In the only federal court of appeals decision squarely on point, the en banc Eleventh Circuit upheld the recess appointment of a judge made during an eleven-day intrasession recess. See Evans, 387 F.3d at 1224–26 (concluding “Recess of the Senate” as used in the Recess Appointments Clause includes intrasession recesses and declining to set a lower limit on their length). But see id. at 1228 n.2 (“Although I would not reach this ques10 Certain language in an 1863 report of the Senate Judiciary Committee could be read to suggest that the Committee believed that recess appointments could be made only during intersession recesses. See S. Rep. No. 37-80, at 3 (1863) (“It cannot, we think, be disputed that the period of time designated in the clause as ‘the recess of the Senate,’ includes the space beginning with the indivisible point of time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.”). But the question addressed by the Committee in 1863 related to timing of the occurrence of the vacancy, not the nature of the recess during which the vacancy occurred. Moreover, a subsequent report by the Committee defined a recess functionally in terms that have since been adopted by the Attorney General and this Office as setting forth the test for determining when an intrasession recess is of sufficient length to give rise to the President’s power under the Recess Appointments Clause. See S. Rep. No. 58-4389, at 2 (1905) (defining a recess as “the period of time . . . when, because of its absence, [the Senate] can not receive communications from the President or participate as a body in making appointments”); see also infra pp. 32–33. A draft legal brief prepared, but never filed, by the Senate Legal Counsel in 1993 took the position that “the text and purpose of the Recess Appointments Clause both demonstrate that the recess power is limited to Congress’ annual recess between sessions.” 139 Cong. Rec. 15,267, 15,268 (1993). Because a resolution directing the Counsel to appear in the litigation was never offered, however, it is unclear whether the views expressed in the brief garnered the support of a majority of the Senate. 25 36 Op. O.L.C. 15 (2012) tion, the text of the Constitution as well as the weight of the historical record strongly suggest that the Founders meant to denote only intersession recesses.” (Barkett, J., dissenting)). Lower courts, too, have recognized the President’s power to make intrasession recess appointments. See Nippon Steel Corp. v. Int’l Trade Comm’n, 239 F. Supp. 2d 1367, 1374 n.13 (Ct. Int’l Trade 2002) (“The long history of the practice (since at least 1867) without serious objection by the Senate . . . demonstrates the legitimacy of these appointments.”); Gould v. United States, 19 Ct. Cl. 593, 595–96 (1884) (“We have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned . . . could be and was legally filled by the appointment of the President alone.” (dictum)). The Supreme Court, however, has never decided the issue. 11 Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones. 12 If an official appointed during the current recess takes action that gives rise to a justiciable claim, litigants might challenge the appointment on the ground that the Constitution’s reference to “the Recess of the Senate” contemplates only the recess at the end of a session. That argument and the Department of Justice’s response 11 Justice Stevens filed a statement respecting the denial of certiorari in Evans expressing his view that the “case . . . raises significant constitutional questions regarding the President’s intrasession appointment” of a circuit judge and that “it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’” Evans v. Stephens, 544 U.S. 942, 942–43 (2005) (Stevens, J., respecting denial of certiorari). It is unclear whether the Justice’s concerns related specifically to recess appointments of Article III judges or extended to executive branch appointments. 12 Scholarly opinion is divided on the proper interpretation of the Recess Appointments Clause, although advocates for a more limited recess appointment power recognize that their view has not prevailed. Compare Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 424 (2005) (“[T]he recess appointment power is best understood as available during both intersession and intrasession Senate recesses of more than three days.”), with Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487 (2005) (arguing that “the Constitution permits recess appointments only during an intersession recess,” but acknowledging that “[t]he prevailing interpretation . . . allows the President to makes recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”). 26 Recess Appointments Amid Pro Forma Senate Sessions have been discussed at length during litigation over a judicial recess appointment. See, e.g., Brief for the Intervenor United States, Stephens, 387 F.3d 1220 (No. 02-16424); Response Brief of Plaintiffs-Appellees and United States Senator Edward M. Kennedy as Amicus Curiae Supporting Plaintiffs-Appellees, Stephens, 387 F.3d 1220 (No. 02-16424); see also supra note 11. We conclude that the President’s authority to make recess appointments extends to an intrasession recess of twenty days. B. The second question we consider is whether Congress can prevent the President from making appointments during a recess by providing for pro forma sessions at which no business is to be conducted, where those pro forma sessions are intended to divide a longer recess into a series of shorter adjournments, each arguably too brief to support the President’s recess appointment authority. We believe that Congress’s provision for pro forma sessions of this sort does not have the legal effect of interrupting the recess of the Senate for purposes of the Recess Appointments Clause and that the President may properly conclude that the Senate is unavailable for the overall duration of the recess. 13 13 Because we conclude that pro forma sessions do not have this effect, we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment. Attorney General Daugherty suggested in dictum in his 1921 opinion that “an adjournment of 5 or even 10 days [could not] be said to constitute the recess intended by the Constitution,” 33 Op. Att’y Gen. at 25. As a result, “[t]his Office has generally advised that the President not make recess appointments, if possible, when the break in continuity of the Senate is very brief,” The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982); see, e.g., Recess Appointments—Compensation (5 U.S.C. § 5503), 3 Op. O.L.C. 314, 315–16 (1979) (describing informal advice against making recess appointments during a six-day intrasession recess in 1970). Notwithstanding Attorney General Daugherty’s caution, we advised in 1996 that “recess appointments during [a] 10-day intrasession recess would be constitutionally defensible,” although they would “pose significant litigation risks.” Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments (May 29, 1996). And both this Office and the Department of Justice in litigation have recognized the argument that “the three days set by the Constitution as the time during which one House may adjourn without the consent of the other, 27 36 Op. O.L.C. 15 (2012) 1. The Appointments Clause of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” U.S. Const. art. II, § 2, cl. 2. The Recess Appointments Clause immediately follows and confers on the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id. art. II, § 2, cl. 3. The Clause was adopted at the Constitutional Convention without debate. See 2 The Records of the Federal Convention of 1787, at 533, 540 (Max Farrand ed., rev. ed. 1966). 14 Alexander Hamilton described the Clause in The Federalist as providing a “supplement” to the President’s appointment power, establishing an “auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. U.S. Const. art. I, § 5, cl. 4, is also the length of time amounting to a ‘Recess’ under the Recess Appointments Clause.” Goldsmith Memorandum at 3; Memorandum for John W. Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 3–4 (Dec. 3, 1971); Brief for the United States in Opposition at 11, Evans v. Stephens, 544 U.S. 942 (2005) (No. 04-828) (“[T]he Recess Appointments Clause by its terms encompasses all vacancies and all recesses (with the single arguable exception of de minimis breaks of three days or less[.]” (citing U.S. Const. art. I, § 5, cl. 4)); infra pp. 47–48; see also Hartnett, 26 Cardozo L. Rev. at 424 (“[T]he recess appointment power is best understood as available during both intersession and intrasession Senate recesses of more than three days.”). But see Brief for the United States at 14–18, Mackie v. Clinton, Civ. Action No. 93-0032-LFO (D.D.C. 1993) (arguing that “there is no lower time limit that a recess must meet to trigger the recess appointment power” (capitalization omitted)). 14 The Clause, which was proposed by a North Carolina delegate, is generally considered to have been based on a similar provision then in the North Carolina Constitution. See 2 David K. Watson, The Constitution of the United States 988 (1910) (“The [Recess Appointments Clause] was doubtless taken from the Constitution of North Carolina, which contained a similar clause.” (footnote omitted)); Thomas A. Curtis, Note, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1770 n.71 (1984) (noting that the provision was proposed by a delegate from North Carolina; that the language tracks that of the North Carolina provision; and that the federal power is similar in scope to the power in North Carolina’s Constitution at that time). Because the North Carolina legislature was then generally responsible for appointments, the executive could make appointments only when the legislature was not in session to do so. 28 Recess Appointments Amid Pro Forma Senate Sessions 67, at 409 (Clinton Rossiter ed., 1961). The Clause was necessary because “it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers,” and it “might be necessary for the public service to fill [vacancies] without delay.” Id. at 410. Other contemporaneous writings likewise emphasize that the recess appointment power is required to address situations in which the Senate is unable to provide advice and consent on appointments. See 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 135–36 (Jonathan Elliott ed., 2d ed. 1836) (“Elliott’s Debates”) (statement of Archibald Maclaine at North Carolina ratification convention) (July 28, 1788) (“Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. Therefore the executive ought to make temporary appointments, as well as receive ambassadors and other public ministers. This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is to advise him in the appointment of officers, &c., yet, during the recess, the President must do this business, or else it will be neglected; and such neglect may occasion public inconveniences.”); cf. Letters of Cato IV, reprinted in 2 The Complete AntiFederalist 114 (Herbert J. Storing ed., 1981) (“Though the president, during the sitting of the legislature, is assisted by the senate, yet he is without a constitutional council in their recess . . . .”). 15 Thus, from the days of the Founding, the Recess Appointments Clause has been considered implicated when the Senate is not “in session for the appointment of officers.” The Federalist No. 67, at 410. Nineteenth-century sources reflect this understanding. Justice Story framed the issue in terms of the Senate’s ability to review nominations: 15 See also 2 Elliott’s Debates 513 (statement of James Wilson at Pennsylvania ratification convention) (“[T]here is only left the power of concurring in the appointment of officers; but care is taken, in this Constitution, that this branch of business may be done without [the Senate’s] presence”); id. at 534 (statement of Thomas M’Kean) (Dec. 11, 1787) (“Nor need the Senate be under any necessity of sitting constantly, as has been alleged; for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess[.]”); 3 Elliott’s Debates 409–10 (statement of James Madison at the Virginia convention) (“There will not be occasion for the continual residence of the senators at the seat of government. . . . It is observed that the President, when vacancies happen during the recess of the Senate, may fill them till it meets.”). 29 36 Op. O.L.C. 15 (2012) “There was but one of two courses to be adopted [at the Founding]; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1551, at 410 (1833); id. § 1552, at 411 (discussing renomination when “the senate is assembled”). And as early as the Monroe Administration, the Executive Branch’s analysis of the Clause had begun to focus on the availability of the Senate to be consulted on nominations. See, e.g., Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“[A]ll vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President[.]”) (emphasis added); Power of President to Fill Vacancies, 3 Op. Att’y Gen. 673, 676 (1841) (“[T]he convention very wisely provided against the possibility of such evils [i.e., “interregna in the executive powers”] by enabling and requiring the President to keep full every office of the government during a recess of the Senate, when his advisers could not be consulted [.]”) (emphasis added); Power of President to Appoint to Office during Recess of Senate, 4 Op. Att’y Gen. 523, 526 (1846) (“[T]he vacancy happened at a time, and continues now to exist, when the President cannot obtain the advice and consent of his constitutional advisers. . . . [T]his vacancy happening from the inaction of the Senate on the nomination made[] is within the meaning of the [Recess Appointments Clause], and may be filled by an Executive Appointment.” (emphasis added)). Opinions of the Attorney General have construed the Clause in order to fulfill its purpose that there be an uninterrupted power to fill federal offices. Thus, Attorney General Wirt advised in 1823 that “whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filling which, the advice and consent of the Senate cannot be immediately asked, because of their recess, the President shall have the power of filling it by an appointment” because “[t]he substantial purpose of the constitution was to keep these offices filled; and powers adequate to this purpose were intended to be conveyed.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 632; see also Power of President to Fill Vacancies, 3 Op. Att’y Gen. at 675 (affirming the President’s power to 30 Recess Appointments Amid Pro Forma Senate Sessions make a second recess appointment after the Senate failed to act on a nomination during the term of the first appointment because “the President, charged with the high duty of giving full effect to the law, must have a power like its own existence—perpetual”); President’s Power to Fill Vacancies in Recess of the Senate, 12 Op. Att’y Gen. 32, 38 (1866) (same, because “as to the executive power, it is always to be in action, or in capacity for action; and . . . to meet this necessity, there is a provision . . . against vacancies in all the subordinate offices, and that at all times there is a power to fill such vacancies”). 16 Subsequent Attorneys General and, later, this Office have continued to place central importance on the Senate’s availability to give advice and consent. In his seminal opinion concluding that a significant intrasession adjournment is a “recess” in which recess appointments can be made, Attorney General Daugherty focused on this point: “Regardless of whether the Senate has adjourned or recessed, the real question . . . is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” Daugherty Opinion, 33 Op. Att’y Gen. at 21–22 (second emphasis added); see also id. at 25 (“Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?”). Thus, in determining whether an intrasession adjournment constitutes a recess in the constitutional sense, the touchstone is “its practical effect: viz., whether or not the Senate is capable of exercising its constitutional function of advising and consenting to executive nominations.” Recess Appointments, 41 Op. Att’y Gen. at 467 (emphasis added); accord Intrasession Recess Appointments, 13 Op. Indeed, in construing the phrase “happen during the Recess” in the Recess Appointments Clause to mean “happen to exist” rather than originate in the recess, Attorney General Wirt identified two possibilities: one was “most accordant with the letter of the constitution; the second, most accordant with its reason and spirit.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 632. He chose the “construction of the constitution which is compatible with its spirit, reason, and purpose.” Id. at 633. The courts have subsequently endorsed the construction adopted by Wirt. See, e.g., Evans, 387 F.3d at 1226–27; United States v. Woodley, 751 F.2d 1008, 1012–13 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 710 –14 (2d Cir. 1962); In re Farrow, 3 F. 112, 115–16 (N.D. Ga. 1880). But see Schenck v. Peay, 21 F. Cas. 672, 674 –75 (E.D. Ark. 1869) (finding recess appointment unlawful where the vacancy “existed, but did not happen, during the recess of the senate”); In re District Attorney of United States, 7 F. Cas. 731, 734 –38 (E.D. Pa. 1868) (casting doubt on such an appointment). 16 31 36 Op. O.L.C. 15 (2012) O.L.C. at 272. That understanding has been embraced by some prominent commentators as well. See Louis Fisher, Constitutional Conflicts between Congress and the President 38 (5th ed. 2007) (“A temporary recess of the Senate, ‘protracted enough to prevent that body from performing its functions of advising and consenting to executive nominations,’ permits the President to make recess appointments.” (quoting Recess Appointments, 41 Op. Att’y Gen. at 466)). Significantly, a century ago, the Senate Judiciary Committee adopted a functional understanding of the term “recess” that focuses on the Senate’s ability to conduct business. In rejecting the theory that President Theodore Roosevelt could make recess appointments during a brief “constructive recess” between two sessions of Congress, the Committee wrote of the Recess Appointments Clause: It was evidently intended by the framers of the Constitution that [the word “recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments. . . . Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof. S. Rep. No. 58-4389, at 2 (1905) (second emphasis added); see also Daugherty Opinion, 33 Op. Att’y Gen. at 24 (noting that this report was “most significant of all” authorities in supporting the conclusion that a substantial intrasession adjournment was a constitutional “recess”). The Senate continues to cite that report as an authoritative source “on what constitutes a ‘Recess of the Senate.’” Riddick’s Senate Procedure 947 & n.46 (1992), http://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/pdf/ GPO-RIDDICK-1992-88.pdf (citing report). The Comptroller General attributed a similar understanding to the entire Congress when he opined that the “primary purpose” of the Pay Act was 32 Recess Appointments Amid Pro Forma Senate Sessions to relieve “recess appointees” of the burden of serving without compensation during periods when the Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date. Appointments—Recess Appointments, 28 Comp. Gen. at 37 (emphasis added). 2. Guided by these principles, we conclude that the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause. Our conclusion rests on three considerations. First, both the Framers’ original understanding of the Recess Appointments Clause and the longstanding views of the Executive and Legislative Branches support the conclusion that the President may make recess appointments when he determines that, as a practical matter, the Senate is not available to give advice and consent to executive nominations. The Recess Appointments Clause was adopted to allow the President to fill offices when the Senate was not “in session for the appointment of officers.” The Federalist No. 67, at 410 (Alexander Hamilton). And, from the early days of the Republic, the Executive has taken the position that “all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 633. Likewise, in 1905, the Senate Judiciary Committee defined “recess” as used in the Clause to be the period of time when the Senate cannot “participate as a body in making appointments.” S. Rep. No. 58-4389, at 2. We do not believe that the convening of periodic pro forma sessions precludes the President from determining that the Senate is unavailable during an intrasession recess otherwise long enough to support the President’s recess appointment authority. During the last three Congresses, such sessions ordinarily have lasted only a few seconds. See, e.g., 157 Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro forma session lasted from 11:00:02 until 11:00:34 a.m.); see also supra note 2. 33 36 Op. O.L.C. 15 (2012) Records of the sessions typically do not disclose the presence of any Senator other than the single convening member. See, e.g., 157 Cong. Rec. S8793 (daily ed. Dec. 30, 2011) (reflecting the presence of only Senator Reed). And importantly, the pertinent Senate order states in advance that there is to be “no business conducted” during the ensuing sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011); see also supra pp. 16–17. 17 The purpose of these sessions avowedly is not to conduct business; instead, either the Senate has intended to prevent the President from making recess appointments during its absence or the House has intended to require the Senate to remain in session (toward the same end). See supra pp. 17–18; see also Henry B. Hogue, Cong. Research Serv., RS21308, Recess Appointments: Frequently Asked Questions 3 (rev. Mar. 2008) (noting use of such sessions “for the stated purpose of preventing [recess] appointments”). Under these circumstances, the President could properly consider the pertinent intrasession recess period to be one during which the Senate is not genuinely “capable of exercising its constitutional function of advising and consenting to executive nominations,” Recess Appointments, 41 Op. Att’y Gen. at 467; see Dellinger Opinion, 20 Op. O.L.C. at 161 (noting the President’s “discretion to make a good-faith determination of whether a given recess is adequate to bring the Clause into play”); Daugh- 17 The Senate’s rules would also prevent it from acting on nominations or transacting other legislative business during such sessions if, as expected, only a few Senators are present. Under those rules, a quorum consists of “a majority of the Senators duly chosen and sworn.” Senate Rule VI(1), Senate Standing Rules at 5. Whenever it is determined that “a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.” Senate Rule VI(4), id. at 5–6; see also Riddick’s Senate Procedure at 1046 (“No debate nor business can be transacted in the absence of a quorum[.]”). We recognize that, as a practical matter, neither the scheduling order nor the quorum requirement will always prevent the Senate from acting without a quorum through unanimous consent. Indeed, the Senate has occasionally enacted legislation by unanimous consent during pro forma sessions. See infra p. 45. But as more fully explained below, we do not believe that this sporadic practice requires the President to consider the Senate available to perform its constitutional functions when it is in recess and, particularly, when it has provided by order that no business will be conducted. 34 Recess Appointments Amid Pro Forma Senate Sessions erty Opinion, 33 Op. Att’y Gen. at 25 (discussing the President’s “large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate”). Indeed, as noted above, presidential messages delivered to the Senate during previous recesses were not laid before that body and entered into the Congressional Record until after the recess was over, notwithstanding the convening of pro forma sessions before that date. See supra note 5 & accompanying text. And the Senate has made special arrangements for the appointment of its own officers during the recess, in apparent recognition of the fact that it will not be in session for the purpose of making appointments under its usual procedures. See supra note 4 & accompanying text. “[T]he rationale for treating substantial intrasession adjournments as ‘recesses’ for purposes of the Recess Appointments Clause is that substantial adjournments prevent the Senate from acting on nominations.” Intrasession Recess Appointments, 13 Op. O.L.C. at 273. By the same reasoning, brief pro forma sessions of this sort, at which the Senate is not capable of acting on nominations, may be properly viewed as insufficient to terminate an ongoing recess for purposes of the Clause. 18 This view of the effect of pro forma sessions on the President’s recess appointment power finds additional support in one of this Office’s prior opinions, Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15. That opinion addressed the propriety of making recess appointments during a recess that began on January 3, 1992, and ended on January 21, 1992. We noted that, aside from a “brief formal session on January 3” at which the body conducted no business (and which evidently was held to address the terms of the Twentieth Amendment, see infra note 22), the Senate had been in recess since November 27, 1991. 16 Op. O.L.C. at 15 n.1. Thus, we observed that “[f]or practical purposes with In reaching this conclusion, we need not look behind the actual terms of the Senate’s orders. The Senate itself labels the sessions “pro forma” and specifies that there is to be “no business conducted” during those sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). These orders make clear that the Senate cannot perform its advise-andconsent role during the pro forma sessions. The issue we have been asked to address relates to the legal effect of such sessions on the intrasession recess, and the Senate orders on their face warrant the conclusion that the Senate is unavailable to provide advice and consent during the intrasession recess. 18 35 36 Op. O.L.C. 15 (2012) respect to nominations, this recess closely resembles one of substantially greater length.” Id. To be sure, this Office there stated only that two recesses broken solely by a pro forma session “closely resemble[]” a single recess of greater length, not that they were constitutionally indistinguishable from one. Nevertheless, we thought the effective length of the recess relevant in determining whether the President could make a recess appointment. The same consideration applies here. A lengthy intrasession recess broken only by pro forma sessions closely resembles an unbroken recess of the same length; thus, “[e]xcept for its brief formal session[s] . . . the Senate will have been absent from [January 3, 2012] until [January 23, 2012], a period of [twenty] days.” Id. And in determining whether such a recess triggers the President’s appointment authority under the Recess Appointments Clause, we believe the critical inquiry is the “practical” one identified above—to wit, whether the Senate is available to perform its advise-and-consent function. For practical purposes, the President may properly view the Senate as unavailable for twenty days. Second, allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma sessions would be inconsistent with both the purpose of the Clause and historical practice in analogous situations. As explained above, the Recess Appointments Clause has long been understood as intended to provide a method of appointment when the Senate was unavailable to provide advice and consent, so that offices would not remain vacant to the detriment of the public interest. If the Senate can avoid a “Recess of the Senate” under the Clause by having a single Member “gavel in” before an empty chamber, then the Senate can preclude the President from making recess appointments even when, as a practical matter, it is unavailable to fulfill its constitutional role in the appointment process for a significant period of time. The purpose of the Clause is better served by a construction that permits the President to make recess appointments when the Senate is unavailable to advise and consent for lengthy periods. See Power of President to Fill Vacancies, 2 Op. Att’y Gen. 525, 526–27 (1832) (“[A] construction that defeats the very object of the grant of power cannot be the true one. It was the intention of the constitution that the offices created by law, and necessary to carry on the operations of the government, should always be full, or, at all events, that the vacancy should not be a protracted one.”); cf. Wright v. United States, 302 U.S. 36 Recess Appointments Amid Pro Forma Senate Sessions 583, 596 (1938) (“We should not adopt a construction [of the Veto Clauses] which would frustrate either of the[ir] purposes.”). Further, Presidents have routinely exercised their constitutional authority to make recess appointments between sessions of Congress since President Washington made such appointments in the earliest days of the Republic. Although we have focused in this opinion on the twenty-day intrasession recess at the beginning of the second session, the Senate in fact adjourned pursuant to an order that provided that there would also be “no business conducted” for the final seventeen days of the first session. This period of time, a total of thirty-seven days, in substance closely resembles a lengthy intersession recess. See Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. at 15 n.1. Thus, an understanding of the Recess Appointments Clause that permits the President to make appointments during this recess also would be consistent with historical practice. Third, permitting the Senate to prevent the President from making recess appointments through pro forma sessions would raise constitutional separation of powers concerns. To preserve the constitutional balance of powers, the Supreme Court has held that congressional action is invalid if it “‘undermine[s]’ the powers of the Executive Branch, or ‘disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.’” Morrison v. Olson, 487 U.S. 654, 695 (1988) (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856 (1986); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977) (alterations in Morrison)); accord Loving v. United States, 517 U.S. 748, 757 (1996) (“[I]t remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. Even when a branch does not arrogate power to itself . . . the separationof-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” (citations omitted)). The Constitution expressly confers upon the President the power to make recess appointments when the Senate is unable to give its advice and consent because it is in recess. It is the established view of the Executive Branch that Congress may not derogate from the President’s constitutional authority to fill up vacancies during recesses, by granting less power to 37 36 Op. O.L.C. 15 (2012) a recess appointee than a Senate-confirmed occupant of the office would exercise: “Provisions purporting to grant authority only to individuals confirmed by the Senate interfere with the President’s recess appointment power, and are unconstitutional.” Memorandum for J. Paul Oetken, Associate Counsel to the President, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Displacement of Recess Appointees in Tenure-Protected Positions at 6 (Sept. 1, 2000) (quoting Statement Upon Signing H.R. 5678 (Oct. 6, 1992), 2 Pub. Papers of Pres. George H.W. Bush 1767, 1768 (1992); see also Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Foreign Claims Settlement Commission at 6 (Nov. 12, 1993) (the principle that “recess appointees have the powers and rights of Senate-confirmed appointees” is “a constitutional principle of great importance”). 19 In such circumstances, however, the President can still make recess appointments. Senate action that would completely prevent the President from making recess appointments in situations where the Senate is as a practical matter unavailable would do even more to “disrup[t] the proper balance between the coordinate branches,” Morrison, 487 U.S. at 695, and “intrud[e] upon” the President’s constitutional prerogatives, Loving, 517 U.S. at 757; cf. Daugherty Opinion, 33 Op. Att’y Gen. at 23 (“If the President’s power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to 19 These concerns also have been enunciated in other presidential signing statements. See Statement on Signing the Energy Policy Act of 1992 (Oct. 24, 1992), 2 Pub. Papers of Pres. George H.W. Bush 1962, 1963 (1992) (stating that a provision that “authorizes a Transition Manager to exercise the powers of the Corporation until a quorum of the Board of Directors has been ‘appointed and confirmed,’ must be interpreted so as not to interfere with my authority under Article II, section 2 of the Constitution to make recess appointments to the Board”); Statement on Signing the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1985 (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan 1210, 1211 (1984) (explaining that a bill intended to restrict powers of recess appointees would raise “troubling constitutional issues”). 38 Recess Appointments Amid Pro Forma Senate Sessions believe that the framers of the Constitution ever intended such a catastrophe to happen.”). 20 There is also some judicial authority recognizing the need to protect the President’s recess appointment authority from congressional incursion. See McCalpin v. Dana, No. 82-542, at 14 (D.D.C. Oct. 5, 1982) (“The system of checks and balances crafted by the Framers . . . strongly supports the retention of the President’s power to make recess appointments.”), vacated as moot, 766 F.2d 535 (D.C. Cir. 1985); id. at 14 (explaining that the “President’s recess appointment power” and “the Senate’s power to subject nominees to the confirmation process” are both “important tool[s]” and “the presence of both powers in the Constitution demonstrates that the Framers . . . concluded that these powers should coexist”); Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) (“it is . . . not appropriate to assume that this Clause has a species of subordinate standing in the constitutional scheme”); id. at 598 (“It follows that a construction of [a statute] which would preclude the President from making a recess appointment in this situation—i.e., during a Senate recess and after the statutory term of the incumbent [official] has expired—would 20 This Office occasionally has raised similar concerns about the constitutionality of the Pay Act, 5 U.S.C. § 5503 (2006), which imposes certain restrictions on the payment of recess appointees. See Memorandum for the Attorney General, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 7 n.7 (July 7, 1988) (“Because it places limitations on the President’s exercise of his constitutional authority, 5 U.S.C. § 5503 may be unconstitutional.”); Intrasession Recess Appointments, 13 Op. O.L.C. at 276 n.6 (“If the [Pay Act] were to preclude the President from paying a recess appointee in these circumstances, it would raise serious constitutional problems because of the significant burden that an inability to compensate an appointee would place on the textually committed power of the President to make recess appointments.”). The Senate’s use of pro forma sessions to prevent the President from making recess appointments, if valid, would constitute a greater restriction on recess appointment authority than the terms of the Pay Act. The latter allows payment of recess appointees under a number of circumstances and permits retroactive payment after a person serving under a recess appointment has been confirmed. Foreign Claims Settlement Commission at 9; Memorandum for Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal Counsel, from Herman Marcuse, Attorney-Adviser, Office of Legal Counsel, Re: Constitutionality of 5 U.S.C. 56 (Recess Appointments) at 1 (Sept. 27, 1961). In contrast, the Senate’s use of pro forma sessions, if it had the effect of shortening recesses to a period insufficient to constitute a “recess” under the Recess Appointments Clause, would prevent the President from making recess appointments in the circumstances presented, even if the person to be appointed would serve without compensation. 39 36 Op. O.L.C. 15 (2012) seriously impair his constitutional authority and should be avoided [if it] is possible to do so.”); see also Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (rejecting an argument that “rests on the assumption that a recess appointment is somehow a constitutionally inferior procedure”). But see Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C. 1994) (concluding, contrary to McCalpin and Staebler, that a holdover provision could preclude a recess appointment), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 57–58 (D.D.C. 1993) (same), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir. Mar. 9, 1994). We recognize that the Senate may choose to remain continuously in session and available to exercise its advise-and-consent function and thereby prevent the President from making recess appointments. But, under the legal authority set forth above, the President may properly determine that the Senate is not available under the Recess Appointments Clause when, while in recess, it holds pro forma sessions where no business can be conducted. Such sessions do not have the legal effect of interrupting a Senate recess for purposes of the Recess Appointments Clause. 3. We have considered several counterarguments to our analysis. In our judgment, these points, while not insubstantial, do not overcome the conclusion presented above. First, we considered that the Senate has employed pro forma sessions in other contexts and that, in those contexts, a pro forma session may have the same legal effect as any other session and thus may fulfill certain constitutional requirements. For example, pro forma sessions are most commonly used to address the requirement that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” U.S. Const. art. I, § 5, cl. 4; see U.S. Senate Glossary, http://www.senate.gov/reference/glossary_term/pro_ forma_session.htm (last visited ca. Jan. 2012) (defining “pro forma session” as a “brief meeting (sometimes only several seconds) of the Senate in which no business is conducted”; “[i]t is held usually to satisfy 40 Recess Appointments Amid Pro Forma Senate Sessions the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other”). 21 In addition, in 1980, and sporadically thereafter, pro forma sessions have been used to address the Twentieth Amendment’s direction that, in the absence of legislation providing otherwise, Congress must convene on January 3. 22 Pro forma sessions have also been employed for parliamentary purposes, e.g., to permit a cloture vote to ripen, or to hear an address. 23 Those precedents provide only weak support for the claim that a series of consecutive pro forma sessions may be used to block recess appointments in the circumstances presented here. There is no evidence of a Riddick’s Senate Procedure identifies several examples in which “the Senate pursuant to a previous order has met for very brief periods and recessed over until a subsequent date, not in excess of 3 days,” the earliest of which occurred in 1949. Id. at 251 & nn.1–3. 22 U.S. Const. amend. XX, § 2 (“Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”). Congress routinely enacts legislation when it wishes to vary the date of its first meeting. See, e.g., Pub. L. No. 111-289 (2010); Pub. L. No. 105-350 (1998); Pub. L. No. 99-613 (1986); Pub. L. No. 94-494 (1978); Pub. L. No. 89-340 (1965); Pub. L. No. 83-199 (1953); Pub. L. No. 79-289 (1945). Occasionally, however, Congress (or an individual House) uses a pro forma session to comply with the Twentieth Amendment’s default date. The first such use of a pro forma session that we are aware of occurred in 1980. See H.R. Con. Res. 232, 96th Cong., 93 Stat. 1438 (1979) (“[W]hen the Congress convenes on January 3, 1980, . . . neither the House nor the Senate shall conduct organizational or legislative business until Tuesday, January 22, 1980, [unless convened sooner by House and Senate leaders].”). Thereafter, it appears to have remained rare until the last decade. See H.R. Con. Res. 260, 102d Cong., 105 Stat. 2446 (1991) (providing that neither House shall “conduct organizational or legislative business” on January 3, 1992); 151 Cong. Rec. S14,421 (daily ed. Dec. 21, 2005) (Senate order providing for “a pro forma session only” on January 3, 2006”); 153 Cong. Rec. S16,069 (daily ed. Dec. 19, 2007) (same for January 3, 2008); 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (same for January 3, 3012). On at least one occasion, Congress has changed the date of the first meeting of a session by law and both Houses held pro forma sessions to comply with that law. See Pub. L. No. 111-121, 123 Stat. 3479 (2009) (providing that the second session of the 111th Congress begin on January 5, 2010); 155 Cong. Rec. S14,140 (daily ed. Dec. 24, 2009) (Senate order providing for “a pro forma session only” on January 5, 2010); 156 Cong. Rec. H2–H8 (daily ed. Jan. 5, 2010) (“[N]o organizational or legislative business will be conducted on this day.”). 23 See 133 Cong. Rec. 15,445 (1987) (“The Senate will go over until Monday pro forma, no business, no speeches, just in and out, and the pro forma meeting on Monday would qualify the cloture motion to be voted on Tuesday[.]”); 139 Cong. Rec. 3039, 3039 (1993) (“Any sessions will be pro forma or solely for the purpose of hearing the Presidents’ Day address on Wednesday morning.”). 21 41 36 Op. O.L.C. 15 (2012) tradition of using pro forma sessions to prevent a “recess” within the meaning of the Recess Appointments Clause. That attempt began in 2007 with the 110th Congress. 24 There may be at least a limited tradition of a House of Congress using consecutive pro forma sessions to avoid adjournments of more than three days without obtaining the other House’s consent. 25 But past uses of pro forma sessions for housekeeping purposes are not good analogies for the current use of pro forma sessions to block appointments under the Recess Appointments Clause. The former uses affect the operations of only the House in question, and the Constitution provides that “[e]ach House may determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2. Even uses in connection with interchamber relations affect the Legislative Branch alone. The question whether the 24 It does appear, though, that the use of pro forma sessions to prevent recess appointments was at least contemplated as early as the 1980s. See 145 Cong. Rec. 29,915 (1999) (statement of Sen. Inhofe) (“[Senator Byrd] extracted from [the President] a commitment in writing that he would not make recess appointments and, if it should become necessary because of extraordinary circumstances to make recess appointments, that he would give the list to the majority leader . . . in sufficient time in advance that they could prepare for it either by agreeing in advance to the confirmation of that appointment or by not going into recess and staying in pro forma so the recess appointments could not take place.”). 25 For example, in 1929, a concurrent resolution provided that the House return from summer recess on September 23, 71 Cong. Rec. 3045 (June 18, 1929). The House passed a separate resolution providing that “after September 23, 1929, the House shall meet only on Mondays and Thursdays of each week until October 14, 1929,” provided that the Speaker could call them back sooner if “legislative expediency shall warrant it,” id. at 3228 (June 19, 1929). Although it was not so stated in the text of the resolution, it was “agreed that there shall be nothing transacted [during the Monday and Thursday sessions] except to convene and adjourn; no business whatever.” Id. at 3229 (statement of Rep. Tilson); see also 8 Cannon’s Precedents of the House of Representatives § 3369, at 820 (1935) (describing this incident as one in which the House “provid[ed] for merely formal sessions”). This arrangement was subsequently extended twice. 71 Cong. Rec. 4531–32 (Oct. 14, 1929) (H.R. Res. 59, described by Rep. Tilson as “the same resolution, the dates being changed, as the original recess resolution passed by the House last June); id. at 5422 (Nov. 11, 1929). Subsequent examples from the Senate involve more formal agreements to the pro forma nature of the sessions. See, e.g., 96 Cong. Rec. 16,980 (Dec. 22, 1950) (setting schedule of two consecutive pro forma sessions); id. at 17,020 (Dec. 26, 1950); id. at 17,022 (Dec. 29, 1950); 126 Cong. Rec. 2574 (Feb. 8, 1980) (setting schedule of two consecutive pro forma sessions); id. at 2614 (Feb. 11, 1980); id. at 2853 (Feb. 14, 1980); 127 Cong. Rec. 190 (Jan. 6, 1981) (setting schedule of three consecutive pro forma sessions); id. at 238 (Jan. 8, 1981); id. at 263 (Jan. 12, 1981); id. at 276 (Jan. 15, 1981). 42 Recess Appointments Amid Pro Forma Senate Sessions use of pro forma sessions for those purposes is consistent with the Constitution is not presented here. Assuming that such uses are constitutional, however, it does not follow that pro forma sessions may be used to prevent the President from exercising his constitutional authority to make recess appointments when he determines that the Senate is unavailable to provide advice and consent. 26 Put differently, whether the House has consented to the Senate’s adjournment of more than three days does not determine the Senate’s practical availability during a period of pro forma sessions and thus does not determine the existence of a “Recess” under the Recess Appointments Clause. Second, it might be argued that, in light of the Senate’s power to “determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, the Executive Branch would be bound by the Chamber’s own understanding of whether the pro forma sessions have the legal effect of interrupting a “Recess of the Senate” for the purposes of the Recess Appointments Clause. The Rules of Proceedings Clause has been understood to grant the Houses of Congress broad discretion in managing their internal affairs. See, e.g., United States v. Ballin, 144 U.S. 1, 5 (1892) (“[A]ll matters of method [of proceeding] are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.”). That Clause might also be understood to permit them conclusively to determine when they are in session and when they are in recess. See, e.g., Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 Cardozo L. Rev. 443, 459 (2005) (“I would think that pursuant to the authority of each House to make rules for its own proceedings Congress could decide to hold twelve ‘sessions’ each calendar year, with a few days off— perhaps just a weekend—between them.”); cf. Arthur S. Miller, Congressional Power to Define the Presidential Pocket Veto Power, 25 Vand. L. Cf. Letter for Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, U.S. House of Representatives, from Robert G. Dixon, Assistant Attorney General, Office of Legal Counsel at 4 –5 (Dec. 4, 1973) (“Under Section 2 of H.R. 7386, Congress could prevent the exercise of a pocket veto, except at the close of a Congress, when one or both Houses adjourned for several months, by adjourning either to a date certain or pro forma to a date close to the beginning of the next working session. . . . To the extent that H.R. 7386 unconstitutionally permits Congress to keep a bill in suspended animation for lengthy periods during adjournments other than sine die, it unconstitutionally narrows the President’s pocket veto authority.”). 26 43 36 Op. O.L.C. 15 (2012) Rev. 557, 567 (1972) (“Surely the determination of what constitutes adjournment is a ‘proceeding’ within the terms of that section [the Rules of Proceeding Clause].”). The Supreme Court, however, has made clear that Congress’s power under this provision is not unlimited, and specifically that Congress “may not by its rules ignore constitutional restraints or violate fundamental rights.” Ballin, 144 U.S. at 5. Thus, the validity and application of congressional rules are subject to review in court when the rules affect interests outside of the Legislative Branch. See, e.g., United States v. Smith, 286 U.S. 6, 33 (1932) (“As the construction to be given the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one.”); Ballin, 144 U.S. at 5 (“[T]here should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.”); Vander Jagt v. O’Neill, 699 F.2d 1166, 1173 (D.C. Cir. 1983) (“Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.”). A Senate rule that pro forma sessions interrupt a “Recess of the Senate” (or that otherwise seeks to prevent the President from exercising authority under the Recess Appointments Clause) would affect other persons—the President and potential appointees at the least. It would also disrupt the Constitution’s balancing of executive and legislative authority in the appointments process. To be sure, as explained above, the President’s authority to make recess appointments is constrained when the Senate is continuously in session and available to perform its advise-and-consent function. But the Senate could not by rule unilaterally prevent the President from exercising his authority to make temporary appointments under the Clause by declaring itself in session when, in practice, it is not available to provide advice and consent, any more than the President could make a recess appointment when the Senate was in practice available to do so. See Daugherty Opinion, 33 Op. Att’y Gen. at 25 (recognizing that a “palpable abuse” of the President’s “discretion to determine when there is a real and genuine recess” of the Senate might subject his appointment to review”). 27 The Senate’s scheduling of pro forma sessions to frustrate the President’s recess appointment authority does not require us to treat the President’s constitutional recess appointment authority as operating at the “lowest ebb” of presidential power under the framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. 27 44 Recess Appointments Amid Pro Forma Senate Sessions Third, it could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions. Twice in 2011, the Senate passed legislation during pro forma sessions by unanimous consent, evidenced by the lack of objection from any member who might have been present at the time. 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011); id. at S5297 (daily ed. Aug. 5, 2011). During one of these sessions, the Senate also agreed to a conference with the House, and messages received from the House earlier in the intrasession recess were put into the Congressional Record. 157 Cong. Rec. S8789–90 (daily ed. Dec. 23, 2011). Conceivably, the Senate might provide advice and consent on pending nominations during a pro forma session in the same manner. We do not believe, however, that these examples prevent the President from determining that the Senate remains unavailable to provide advice and consent during the present intrasession recess. The scheduling order under which the pro forma sessions are held during this recess expressly provides that there is to be “no business conducted.” 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2001). In our judgment, the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions. Moreover, even absent a Senate pronouncement that it will not conduct business, there may be circumstances in which the President could properly conclude that the body is not available to provide advice and consent for a sufficient period to support the use of his recess appointment power. It is common for Sawyer, 343 U.S. 579, 637 (1952). The Constitution explicitly grants recess appointment authority to the President, and the Attorney General has long taken the position that, through enactment of the Pay Act, Congress has “acquiesce[d]” to recess appointments under circumstances where that Act would permit payment. See Recess Appointments, 41 Op. Att’y Gen. at 466; see also Appointments—Recess Appointments, 28 Comp. Gen. at 34, 37 (recognizing the “accepted view” that an extended intrasession adjournment of the Senate is a “recess” in the constitutional sense during which “an appointment properly may be made” and that recipients of such appointments were entitled to pay). Moreover, it is unclear that Justice Jackson’s framework would apply in matters involving the balance between the President’s constitutional authority to make recess appointments and a single House of Congress’s constitutional authority to set its internal rules. 45 36 Op. O.L.C. 15 (2012) resolutions of adjournment authorizing extended intrasession recesses to provide that the Senate “stand[s] recessed or adjourned until [a specified date], . . . or until the time of any reassembly” ordered by the leaders of the two Houses “as they may designate whenever, in their opinion, the public interest shall warrant it.” See, e.g., H.R. Con. Res. 361, 108th Cong. (2004). That potential for reassembly by itself does not deprive an extended Senate absence of its character as a recess. In fact, the Senate had adjourned pursuant to such a resolution before the intrasession recess during which Judge Pryor was appointed to the Eleventh Circuit. That recess appointment was approved by this Office, see Goldsmith Memorandum, and upheld by the court of appeals en banc, see Evans v. Stephens, 387 F.3d 1220. Fourth, legal precedent addressing the President’s authority to pocket veto during a recess a bill passed by Congress conceivably might be viewed as constraining the President’s recess appointment authority in the current recess. For example, in Wright v. United States, 302 U.S. 583, the Supreme Court held that a temporary adjournment of the Senate (for which consent of the House was not required under Article I, Section 5, Clause 4 of the Constitution) did not prevent the President from vetoing a bill. And in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the D.C. Circuit extended Wright to reach all intrasession adjournments, provided that arrangements were made for the receipt of presidential messages. 28 It could be argued that these cases either delineate the types of Senate adjournments that are insufficient to qualify as a “Recess of the Senate” under the Recess Appointments Clause, or establish that the Senate can take some action short of actually remaining in session to mitigate the consequences of its absence. We have previously observed that “[w]hile the Pocket Veto and Recess Appointments Clauses deal with similar situations, that is, the President’s powers while Congress or the Senate is not in session, their language, effects, and purposes are by no means identical.” Recess Appointments Issues, 6 Op. O.L.C. 585, 589 (1982). And “[i]n light of the[se] differen[ces] . . . we do not believe [that Sampson] should be read as having any significant In Barnes v. Kline, 759 F.2d 21, 41 (D.C. Cir. 1985), the court held that the President is not “prevent[ed]” from returning a bill even during an intersession recess if a duly authorized officer of the originating house is available to receive it. That decision was later vacated as moot. See Burke v. Barnes, 479 U.S. 361 (1987). 28 46 Recess Appointments Amid Pro Forma Senate Sessions bearing on the proper interpretation of the Recess Appointments Clause.” Id. at 590. Moreover, we have concluded that “there are sound reasons to believe that the President has authority to make recess appointments in situations in which a pocket veto might well be inappropriate.” The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982). The Pocket Veto Clause “ensures that the President will not be deprived of his constitutional power to veto a bill by reason of an adjournment.” Recess Appointments Issues, 6 Op. O.L.C. at 590. The holdings in Wright and Sampson—that the President could not pocket veto a bill during an intrasession recess where the Senate had designated an agent to receive the return of a bill—were “bottomed on the theory that [the adjournments at issue] did not ‘prevent’ the return of disapproved bills.” The Pocket Veto, 6 Op. O.L.C. at 149. Put another way, the designation of an agent to receive messages and the pocket veto serve the same purpose, i.e., protecting the President’s right to disapprove bills, and therefore obviate the need for the power provided by the Clause. The Recess Appointments Clause, however, serves a different purpose. It “enables the President to fill vacancies which exist while the Senate is unable to give its advice and consent because it is in recess.” Recess Appointments Issues, 6 Op. O.L.C. at 590. The designation of an agent to receive messages neither allows the President to fill vacancies nor makes the Senate available to advise and consent. Thus, the President’s ability to make appointments during a recess is necessary to further the Recess Appointments Clause’s purpose, while the President’s authority to pocket veto arguably is not necessary when the presence of a congressional agent allows him to return a bill, exercising his constitutional prerogative to disapprove legislation. While the congressional designation of an agent arguably addresses the constitutional concerns embodied in the President’s pocket veto authority, the periodic convening of pro forma sessions at which no business is to be conducted simply does not address the constitutional concerns arising from the Senate’s unavailability to consider appointments. Finally, we considered whether the Department of Justice has already taken a different view. In arguing that the recess appointment of a member of the National Labor Relations Board (“NLRB”) did not render moot the controversy about legal consequences of the absence of a Board quorum, the Solicitor General said that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over 47 36 Op. O.L.C. 15 (2012) a lengthy period,” using the Senate’s 2007 pro forma sessions as an example. Letter for William K. Suter, Clerk, Supreme Court of the United States, from Elena Kagan, Solicitor General, Office of the Solicitor General, at 3 (April 26, 2010), New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (No. 08-1457). This portion of the letter is focused on the question whether an intrasession recess of three days or fewer constitutes a recess under the Recess Appointments Clause. See id. (“[T]he Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.”); id. at 3 n.2 (“[O]fficial congressional documents define a ‘recess’ as ‘any period of three or more complete days . . . when either the House of Representatives or the Senate is not in session.’” (quoting 2003–2004 Congressional Directory 526 n.2 (Joint Comm. on Printing, 108th Cong., comp. 2003)). The letter (like this opinion, see supra note 13) does not answer that question. Instead, the letter uses the uncertain status of recess appointments during intrasession recesses of three or fewer days to argue that the possibility of recess appointments did not render New Process Steel moot. Thus, it does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause. III. In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 48

Write a legal research memo on the following topic.

Recess Appointments Amid Pro Forma Senate Sessions A twenty-day Senate recess may give rise to presidential authority to make recess appointments. Congress’s provision for pro forma sessions during that twenty-day period does not have the legal effect of interrupting the recess for purposes of the Recess Appointments Clause. In this context, the President has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and may exercise his power to make recess appointments. January 6, 2012 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT * On December 17, 2011, the Senate agreed by unanimous consent to “adjourn and convene for pro forma sessions only, with no business conducted,” every Tuesday and Friday between that date and January 23, 2012. 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). During that period, on January 3, 2012, the Senate convened one such pro forma session to begin the second session of the 112th Congress and adjourned less than a minute later under its prior agreement. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012); see also U.S. Const. amend. XX, § 2. You asked whether the President has authority under the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions. We advised you that he does. This opinion memorializes and elaborates on that advice. This Office has consistently advised that “a recess during a session of the Senate, at least if it is of sufficient length, can be a ‘Recess’ within the meaning of the Recess Appointments Clause” during which the President may exercise his power to fill vacant offices. Memorandum for Alberto R. * Editor’s Note: The Supreme Court considered the questions addressed in this opinion in NLRB v. Noel Canning, 573 U.S. 513 (2014), and held that the Recess Appointments Clause empowers the President to fill vacancies during intrasession recesses “of substantial length,” but that the Senate is in session for purposes of the Clause during a pro forma session in which the Senate retains the capacity to conduct business under its rules. Id. at 527, 550. The Court therefore held that three appointments made by President Obama during the period at issue in this opinion were invalid. Id. at 557. 15 36 Op. O.L.C. 15 (2012) Gonzales, Counsel to the President, from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments in the Current Recess of the Senate at 1 (Feb. 20, 2004) (“Goldsmith Memorandum”). 1 Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted. I. Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress. These pro forma sessions typically last only a few seconds, and apparently require the presence of only one Senator. 2 Senate orders adopted by unanimous consent provide in advance “A recess between sine die adjournment of one session and the convening of the next is also known as an intersession recess. A recess within a session is also known as an intrasession recess.” Henry B. Hogue & Richard S. Beth, Cong. Research Serv., Efforts to Prevent Recess Appointments Through Congressional Scheduling and Historical Recess Appointments During Short Intervals Between Sessions 3 n.6 (2011). “The number of days in a recess period is ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends.” Goldsmith Memorandum at 1. 2 See, e.g., 157 Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro forma session lasted from 11:00:02 until 11:00:34 a.m.); id. at D903 (daily ed. Aug. 12, 2011) (noting that day’s pro forma session lasted from 12:00:08 until 12:00:32 p.m.); 156 Cong. Rec. D1067 (daily ed. Oct. 26, 2010) (noting that day’s pro forma session lasted from 12:00:04 until 12:00:31 p.m.); 154 Cong. Rec. D1257 (daily ed. Oct. 30, 2008) (noting that day’s pro forma session lasted from 9:15:00 until 9:15:08 a.m.); id. at D665 1 16 Recess Appointments Amid Pro Forma Senate Sessions that there is to be “no business conducted” at such sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011); id. at S7876 (daily ed. Nov. 18, 2011); id. at S6891 (daily ed. Oct. 20, 2011); id. at S6009 (daily ed. Sept. 26, 2011); id. at S5292 (daily ed. Aug. 2, 2011); id. at S3465 (daily ed. May 26, 2011); 156 Cong. Rec. S7775 (daily ed. Sept. 29, 2010); 154 Cong. Rec. S10,958 (daily ed. Dec. 11, 2008); id. at S10,776 (daily ed. Nov. 20, 2008); id. at S8077 (daily ed. Aug. 1, 2008); id. at S2194 (daily ed. Mar. 13, 2008); id. at S1085 (daily ed. Feb. 14, 2008); 153 Cong. Rec. S16,069 (daily ed. Dec. 19, 2007); id. at S14,661 (daily ed. Nov. 16, 2007); accord 154 Cong. Rec. S4849 (daily ed. May 22, 2008) (recess order stating that “no action or debate” is to occur during pro forma sessions). 3 The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments. See 154 Cong. Rec. S7558 (daily ed. July 28, 2008) (statement of Sen. Reid); see also 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007) (statement of Sen. Reid) (“[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”). While this practice was initiated by Senate action, more recently the Senate’s use of such sessions appears to have been forced by actions of the House of Representatives. See generally Henry B. Hogue & Richard S. Beth, Cong. Research Serv., Efforts to Prevent Recess Appointments Through Congressional Scheduling and Historical Recess Appointments During Short Intervals Between Sessions 5–8 (2011). On May 25, 2011, twenty Senators noted the Senate’s use of pro forma sessions in 2007 and “urge[d] [the Speaker of the House] to refuse to pass any resolution (daily ed. May 27, 2008) (noting that day’s pro forma session lasted from 9:15:02 until 9:15:31 a.m.). 3 We are aware of only two occasions in this period in which a Senate order did not provide that no business would be conducted in pro forma sessions held during a recess. On the first, the relevant order provided that there would be “no business conducted, except with the concurrence of the two leaders,” 154 Cong. Rec. S10,504 (daily ed. Oct. 2, 2008); on the second, the relevant order was silent, id. at S6336 (daily ed. June 27, 2008). It is unclear, however, whether the use of pro forma sessions on the latter occasion was intended to prevent recess appointments, as only one pro forma session was scheduled during the ten-day recess. See id. 17 36 Op. O.L.C. 15 (2012) to allow the Senate to recess or adjourn for more than three days for the remainder of the [P]resident’s term.” Press Release, Senator David Vitter, Vitter, DeMint Urge House to Block Controversial Recess Appointments (May 25, 2011), http://vitter.senate.gov/public/index.cfm? FuseAction=PressRoom.PressReleases. The next month, eighty Representatives similarly requested that the Speaker, House Majority Leader, and House Whip take “all appropriate measures . . . to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.” Letter for John Boehner, Speaker of the House, et al., from Jeff Landry, Member of Congress (June 15, 2011), http://landry.house.gov/sites/landry.house.gov/files/ documents/Freshmen%20Recess%20Appointment%20Letter.pdf. Consistent with these requests, “no concurrent resolution of adjournment ha[s] been introduced in either chamber since May 12, 2011.” Henry B. Hogue, Cong. Research Serv., RS21308, Recess Appointments: Frequently Asked Questions 3 (rev. Dec. 12, 2011). And because the Constitution provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days,” U.S. Const. art. I, § 5, cl. 4, both Houses have convened pro forma sessions during periods of extended absence. Public statements by some Members of the Senate reveal that they do not consider these pro forma sessions to interrupt a recess. See, e.g., 157 Cong. Rec. S6826 (daily ed. Oct. 20, 2011) (statement of Sen. Inhofe) (referring to the upcoming “1-week recess”); id. at S5035 (daily ed. July 29, 2011) (statement of Sen. Thune) (calling on the Administration to send trade agreements to Congress “before the August recess” even though “[w]e are not going to be able to consider these agreements until September”); id. at S4182 (daily ed. June 29, 2011) (statement of Sen. Sessions) (“Now the Senate is scheduled to take a week off, to go into recess to celebrate the Fourth of July[.]”); 156 Cong. Rec. at S8116–17 (daily ed. Nov. 19, 2010) (statement of Sen. Leahy) (referring to the period when “the Senate recessed for the elections” as the “October recess”); 154 Cong. Rec. S7984 (daily ed. Aug. 1, 2008) (statement of Sen. Hatch) (referring to upcoming “5-week recess”); id. at S7999 (daily ed. Aug. 1, 2008) (statement of Sen. Dodd) (noting that Senate would be in “adjournment or recess until the first week in September”); id. at S7713 (daily ed. July 30, 2008) (statement of Sen. Cornyn) (referring to the 18 Recess Appointments Amid Pro Forma Senate Sessions upcoming “month-long recess”); see also id. at S2193 (daily ed. Mar. 13, 2008) (statement of Sen. Leahy) (referring to the upcoming “2-week Easter recess”). Likewise, the Senate as a body does not uniformly appear to consider its recess broken by pre-set pro forma sessions. The Senate’s web page on the sessions of Congress, which defines a recess as “a break in House or Senate proceedings of three days or more, excluding Sundays,” treats such a period of recess as unitary, rather than breaking it into three-day segments. See United States Senate, The Dates of Sessions of the Congress, http://www.senate.gov/reference/Sessions/sessionDates.htm (last visited ca. Jan. 2012). The Congressional Directory of the 112th Congress, published by Congress, see 44 U.S.C. § 721(a), does the same. See 2011– 2012 Congressional Directory 538 n.2 (Joint Comm. on Printing, 112th Cong., comp. 2011). More substantively, despite the pro forma sessions, the Senate has taken special steps to provide for the appointment of congressional personnel during longer recesses (including this one), indicating that the Senate recognizes that it is not in session during this period for the purpose of making appointments under ordinary procedures. 4 And when messages are received from the President during the recess, they are not laid before the Senate and entered into the Congressional Record until the Senate returns for a substantive session, even if pro forma sessions are See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (providing that “notwithstanding the upcoming recess or adjournment of the Senate, the President of the Senate, the President pro tempore, and the majority and minority leaders [are] authorized to make appointments to commissions, committees, boards, conferences, or interparliamentary conferences authorized by the law, by concurrent action of the two Houses, or by order of the Senate”); id. at S7876 (daily ed. Nov. 18, 2011) (similar); id. at S5292 (daily ed. Aug. 2, 2011) (similar); id. at S3463 (daily ed. May 26, 2011) (similar); 156 Cong. Rec. S7775 (daily ed. Sept. 29, 2010) (similar); 154 Cong Rec. S10,958 (daily ed. Dec. 11, 2008) (similar); id. at S10,776 (daily ed. Nov. 20, 2008) (similar); id. at S10,427 (daily ed. Oct. 2, 2008) (similar); id. at S8077 (daily ed. Aug. 1, 2008) (similar); id. at S6332 (daily ed. June 27, 2008) (similar); id. at S4848 (daily ed. May 22, 2008) (similar); id. at S2190 (daily ed. Mar. 13, 2008) (similar); id. at S1085 (daily ed. Feb. 14, 2008) (similar); 153 Cong. Rec. S16,060 (daily ed. Dec. 19, 2007) (similar); id. at S14,655 (daily ed. Nov. 16, 2007) (similar). The Senate has taken similar steps before recesses that are not punctuated by pro forma sessions. See, e.g., 156 Cong. Rec. S6974 (daily ed. Aug. 5, 2010) (providing for appointment authority before an intrasession recess expected to last for thirty-nine days); 153 Cong. Rec. S10,991 (daily ed. Aug. 3, 2007) (same, recess of thirty-two days). 4 19 36 Op. O.L.C. 15 (2012) convened in the meantime. 5 On the other hand, we have been informed that at least during the August 2008 recess, the Senate Executive Clerk did not return pending nominations when the Senate went into recess pursuant to Senate Standing Rule XXXI, which provides for the return of nominations that have not been acted upon when the Senate recesses “for more than thirty days.” Senate Rule XXXI(6), Standing Rules of the Senate, in Senate Manual, S. Doc. No. 112-1, at 58 (2011) (“Senate Standing Rules”). This omission may reflect the Executive Clerk’s treatment of that impending recess as a series of shorter adjournments rather than a single thirty-eight-day recess. II. To address the President’s authority to make recess appointments during a recess including pro forma sessions, we consider two distinct issues: The first is whether the President has authority to make a recess appointment during the recess at issue here, an intrasession recess of twenty days. We conclude that he does. The opinions of the Attorney General and this Office, historical practice, and the limited judicial authority that exists all provide strong support for that conclusion. Thereafter, we consider whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted. Based primarily on the traditional understanding that the Recess Appointments Clause is to be given a practical construction focusing on the Senate’s ability to provide advice and consent to nominations, we conclude that while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess. The question is a novel one, and the See, e.g., 157 Cong. Rec. S7905 (daily ed. Nov. 28, 2011) (message from the President “received during adjournment of the Senate on November 21, 2011,” laid before the Senate); id. at S7881 (daily ed. Nov. 25, 2011) (record of pro forma session with no mention of receipt of presidential message); id. at S7879 (daily ed. Nov. 22, 2011) (same); S6916 (daily ed. Oct. 31, 2011) (message from the President “received during adjournment of the Senate on October 25, 2011,” laid before the Senate); id. at S6895 (daily ed. Oct. 27, 2011) (record of pro forma session with no mention of receipt of presidential message). 5 20 Recess Appointments Amid Pro Forma Senate Sessions substantial arguments on each side create some litigation risk for such appointments. We draw on the analysis developed by this Office when it first considered the issue. See Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009). A. The Recess Appointments Clause of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3. The Department of Justice “has long interpreted the term ‘recess’ to include intrasession recesses if they are of substantial length.” Intrasession Recess Appointments, 13 Op. O.L.C. at 272; see also Goldsmith Memorandum at 1–2; Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15, 15–16 (1992); Recess Appointments—Compensation (5 U.S.C. § 5503), 3 Op. O.L.C. 314, 316 (1979); Recess Appointments, 41 Op. Att’y Gen. 463, 468 (1960); Daugherty Opinion, 33 Op. Att’y Gen. at 21–22, 25. Under a framework first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Attorney General and this Office, the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. at 272 (quoting Daugherty Opinion, 33 Op. Att’y Gen. at 24). 6 Although “the line of 6 In 1868, Attorney General Evarts approved the contemplated appointments of three officials during a fifty-six-day intrasession recess of the Senate without remarking upon the nature of the recess. See Case of District Attorney for Eastern District of Pennsylvania, 12 Op. Att’y Gen. 469, 469–70 (1868) (observing that the office “is now vacant during the recess of the Senate” and opining that “it is competent for the President to grant a commission”); see also Case of the Collectorship of New Orleans, 12 Op. Att’y Gen. 449 (1868); Case of the Collectorship of Customs for Alaska, 12 Op. Att’y Gen. 455 (1868). It is possible that Attorney General Evarts was not aware that the Senate had merely adjourned to a date certain: he referred in each opinion to the “late session” of the Senate. See, e.g., 12 Op. Att’y Gen. at 451. Attorney General Knox, too, was apparently 21 36 Op. O.L.C. 15 (2012) demarcation can not be accurately drawn” in determining whether an intrasession recess is of sufficient length to permit the President to make a recess appointment, “the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” Daugherty Opinion, 33 Op. Att’y Gen. at 25; see also id. (“Every presumption is to be indulged in favor of the validity of whatever action [the President] may take.”); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 161 (1996) (“Dellinger Opinion”) (“[T]he President has discretion to make a good-faith determination of whether a given recess is adequate to bring the Clause into play.”). “Ultimately, resolution of the question whether an adjournment is of sufficient duration to justify recess appointments requires the application of judgment to particular facts.” Intrasession Recess Appointments, 13 Op. O.L.C. at 273. We have little doubt that a twenty-day recess may give rise to presidential authority to make recess appointments. Attorneys General and this Office have repeatedly affirmed the President’s authority to make recess appointments during intrasession recesses of similar or shorter length. See, e.g., Goldsmith Memorandum at 2–3 (recognizing President’s authority to make a recess appointment during an intrasession recess of eleven days); Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. at 15–16 (same, eighteen days); Intrasession Recess Appointments, 13 Op. O.L.C. at 272–73 (thirty-three days); Recess Appointments, 41 Op. Att’y Gen. at 464–65 (thirty-six days); Daugherty Opinion, 33 Op. Att’y Gen. at 25 (twenty-eight days). 7 unaware of this fact when he cited one of these opinions to support his conclusion that it is only the “period following the final adjournment for the session which is the recess during which the President has power to fill vacancies” and remarked that “[t]he opinions of Mr. Wirt . . . and all the other opinions on this subject relate only to appointments during the recess of the Senate between two sessions of Congress.” Appointments of Officers—Holiday Recess, 23 Op. Att’y Gen. 599, 601–02 (1901). The Daugherty Opinion reversed Attorney General Knox’s conclusion about appointments in intrasession recesses. 7 In 1985, the Office “cautioned against a recess appointment during [what was mistakenly believed to be] an 18-day intrasession recess,” Intrasession Recess Appointments, 13 Op. O.L.C. at 273 n.2 (citing Memorandum for the Files from Herman Marcuse, Attorney-Adviser, Office of Legal Counsel, Re: Recess Appointments to the Export 22 Recess Appointments Amid Pro Forma Senate Sessions The recess appointment practice of past Presidents confirms the views expressed in these opinions. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (relying on the accumulated “historical gloss” to discern the scope of presidential authority where “the source of the President’s power to act . . . does not enjoy any textual detail”); see also Evans v. Stephens, 387 F.3d 1220, 1225–26 (11th Cir. 2004) (en banc) (relying in part on historical practice to reject “the argument that the recess appointment power may only be used in an intersession recess”). Intrasession recesses were rare in the early years of the Republic; when they occurred, they were brief. See Congressional Directory 522–25 (listing five intrasession recesses before the Civil War, ranging from five to twelve days in length). But as intrasession recesses became common, so too did intrasession recess appointments. President Johnson is believed to have made the first intrasession recess appointments in 1867. Henry B. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Stud. Q. 656, 666 (2004). 8 “The length of the recess may have triggered the appointments, because none of the intrasession recesses taken by the Senate until that time had lasted more than 15 days.” Id. Presidents Harding and Coolidge each made intrasession recess appointments in the 1920s (during recesses of twenty-eight and fourteen days, respectively), see 61 Cong. Rec. 5646 (1921) (recess from Aug. 24, 1921, until Sept. 21, 1921); id. at 5737 (recess appointment to the Register of the Land Office made on Aug. 30, 1921); 69 Cong. Rec. 910 (1927) (recess from Dec. 21, 1927, until Jan. 4, 1928); Declaration of Ronald R. Geisler, Chief Clerk of the Executive Clerk’s Office, Exhibit B, Bowers v. Moffett, Civ. Action No. 82-0195 (D.D.C. Jan. 22, 1982) (recess appointment to the Interstate Import Bank (Jan. 28, 1985) (“Marcuse Memorandum”)). This reluctance was attributable in part to factors other than the length of the recess, and we did “not say that [the appointments] would be constitutionally invalid as a matter of law,” Marcuse Memorandum at 1–3. Regardless, the caution was not heeded, and the appointments were made in a fourteen-day intrasession recess. Id. at 4. 8 As an analyst from the Congressional Research Service has explained, “it is virtually impossible” to identify all recess appointments before 1965, because before that date “recess appointments were recorded in a haphazard fashion.” Memorandum for Senate Committee on Banking, Housing and Urban Affairs, from Rogelio Garcia, Analyst in American National Government, Government Division, Congressional Research Service, Library of Congress, Re: Number of Recess Appointments, by Administration, From 1933 to 1984, at 1 (Mar. 13, 1985). 23 36 Op. O.L.C. 15 (2012) Commerce Commission made January 3, 1928), and “[b]eginning in 1943, presidents started to routinely make recess appointments during long intrasession recesses.” Hogue, Recess Appointments, 34 Presidential Stud. Q. at 666; see also 139 Cong. Rec. 15,273 (1993) (compilation of intrasession recess appointments from 1970 to 1993). The last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer. 9 There is significant (albeit not uniform) evidence that the Executive Branch’s view that recess appointments during intrasession recesses are constitutional has been accepted by Congress and its officers. Most relevant, in our view, is the Pay Act, 5 U.S.C. § 5503 (2006), which sets out the circumstances in which a recess appointee may be paid a salary from the Treasury. The Attorney General has long taken the position that the Act constitutes congressional acquiescence to recess appointments under circumstances where the Act would permit payment. See Recess Appointments, 41 Op. Att’y Gen. at 466. In 1948, the Comptroller General considered whether the Act permitted the payment of officials appointed during an intrasession recess. Appointments—Recess Appointments, 28 Comp. Gen. 30 (1948). After acknowledging the “accepted view” that an intrasession recess “is a recess during which an appointment may properly be made,” the Comptroller General concluded that the Act was intended to permit payment to all who are appointed “during periods when the For example, using the method of counting explained above, see supra note 1, President Obama made three recess appointments during a twelve-day recess; President George W. Bush made twenty-one appointments across several eleven-day recesses, four appointments during a twelve-day recess, and four appointments during a fourteen-day recess; President Clinton made one recess appointment during a ten-day recess, another appointment during an eleven-day recess, and seventeen appointments across several twelve-day recesses; President George H.W. Bush made fourteen appointments during a thirteen-day recess; and President Reagan made two appointments during a fourteen-day recess. See Press Release, President Obama Announces Recess Appointments to Key Administration Positions (July 7, 2010), http://www.whitehouse.gov/the-press-office/ president-obama-announces-recess-appointments-key-administration-positions-0; Henry B. Hogue & Maureen Bearden, Cong. Research Serv., RL33310, Recess Appointments Made by President George W. Bush, January 20, 2001–October 31, 2008, at 9–10 (2008); Rogelio Garcia, Cong. Research Serv., RL30821, Recess Appointments Made by President Clinton 9 (2001); Rogelio Garcia, Cong. Research Serv., Recess Appointments Made by President George Bush 3 (1996); Rogelio Garcia, Cong. Research Serv., Recess Appointments Made by President Reagan 8 (1988). 9 24 Recess Appointments Amid Pro Forma Senate Sessions Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date.” Id. at 34, 37. “Considering that the Comptroller General is an officer in the legislative branch, and charged with the protection of the fiscal prerogatives of the Congress, his full concurrence in the position taken by the Attorney General . . . is of signal significance,” Recess Appointments, 41 Op. Att’y Gen. at 469, and in the more than sixty years since the opinion was issued, Congress has not amended the statute to compel a different result. 10 While there is little judicial precedent addressing the President’s authority to make intrasession recess appointments, what decisions there are uniformly conclude that the President does have such authority. In the only federal court of appeals decision squarely on point, the en banc Eleventh Circuit upheld the recess appointment of a judge made during an eleven-day intrasession recess. See Evans, 387 F.3d at 1224–26 (concluding “Recess of the Senate” as used in the Recess Appointments Clause includes intrasession recesses and declining to set a lower limit on their length). But see id. at 1228 n.2 (“Although I would not reach this ques10 Certain language in an 1863 report of the Senate Judiciary Committee could be read to suggest that the Committee believed that recess appointments could be made only during intersession recesses. See S. Rep. No. 37-80, at 3 (1863) (“It cannot, we think, be disputed that the period of time designated in the clause as ‘the recess of the Senate,’ includes the space beginning with the indivisible point of time which next follows that at which it adjourned, and ending with that which next precedes the moment of the commencement of their next session.”). But the question addressed by the Committee in 1863 related to timing of the occurrence of the vacancy, not the nature of the recess during which the vacancy occurred. Moreover, a subsequent report by the Committee defined a recess functionally in terms that have since been adopted by the Attorney General and this Office as setting forth the test for determining when an intrasession recess is of sufficient length to give rise to the President’s power under the Recess Appointments Clause. See S. Rep. No. 58-4389, at 2 (1905) (defining a recess as “the period of time . . . when, because of its absence, [the Senate] can not receive communications from the President or participate as a body in making appointments”); see also infra pp. 32–33. A draft legal brief prepared, but never filed, by the Senate Legal Counsel in 1993 took the position that “the text and purpose of the Recess Appointments Clause both demonstrate that the recess power is limited to Congress’ annual recess between sessions.” 139 Cong. Rec. 15,267, 15,268 (1993). Because a resolution directing the Counsel to appear in the litigation was never offered, however, it is unclear whether the views expressed in the brief garnered the support of a majority of the Senate. 25 36 Op. O.L.C. 15 (2012) tion, the text of the Constitution as well as the weight of the historical record strongly suggest that the Founders meant to denote only intersession recesses.” (Barkett, J., dissenting)). Lower courts, too, have recognized the President’s power to make intrasession recess appointments. See Nippon Steel Corp. v. Int’l Trade Comm’n, 239 F. Supp. 2d 1367, 1374 n.13 (Ct. Int’l Trade 2002) (“The long history of the practice (since at least 1867) without serious objection by the Senate . . . demonstrates the legitimacy of these appointments.”); Gould v. United States, 19 Ct. Cl. 593, 595–96 (1884) (“We have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned . . . could be and was legally filled by the appointment of the President alone.” (dictum)). The Supreme Court, however, has never decided the issue. 11 Due to this limited judicial authority, we cannot predict with certainty how courts will react to challenges of appointments made during intrasession recesses, particularly short ones. 12 If an official appointed during the current recess takes action that gives rise to a justiciable claim, litigants might challenge the appointment on the ground that the Constitution’s reference to “the Recess of the Senate” contemplates only the recess at the end of a session. That argument and the Department of Justice’s response 11 Justice Stevens filed a statement respecting the denial of certiorari in Evans expressing his view that the “case . . . raises significant constitutional questions regarding the President’s intrasession appointment” of a circuit judge and that “it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’” Evans v. Stephens, 544 U.S. 942, 942–43 (2005) (Stevens, J., respecting denial of certiorari). It is unclear whether the Justice’s concerns related specifically to recess appointments of Article III judges or extended to executive branch appointments. 12 Scholarly opinion is divided on the proper interpretation of the Recess Appointments Clause, although advocates for a more limited recess appointment power recognize that their view has not prevailed. Compare Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 424 (2005) (“[T]he recess appointment power is best understood as available during both intersession and intrasession Senate recesses of more than three days.”), with Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487 (2005) (arguing that “the Constitution permits recess appointments only during an intersession recess,” but acknowledging that “[t]he prevailing interpretation . . . allows the President to makes recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”). 26 Recess Appointments Amid Pro Forma Senate Sessions have been discussed at length during litigation over a judicial recess appointment. See, e.g., Brief for the Intervenor United States, Stephens, 387 F.3d 1220 (No. 02-16424); Response Brief of Plaintiffs-Appellees and United States Senator Edward M. Kennedy as Amicus Curiae Supporting Plaintiffs-Appellees, Stephens, 387 F.3d 1220 (No. 02-16424); see also supra note 11. We conclude that the President’s authority to make recess appointments extends to an intrasession recess of twenty days. B. The second question we consider is whether Congress can prevent the President from making appointments during a recess by providing for pro forma sessions at which no business is to be conducted, where those pro forma sessions are intended to divide a longer recess into a series of shorter adjournments, each arguably too brief to support the President’s recess appointment authority. We believe that Congress’s provision for pro forma sessions of this sort does not have the legal effect of interrupting the recess of the Senate for purposes of the Recess Appointments Clause and that the President may properly conclude that the Senate is unavailable for the overall duration of the recess. 13 13 Because we conclude that pro forma sessions do not have this effect, we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment. Attorney General Daugherty suggested in dictum in his 1921 opinion that “an adjournment of 5 or even 10 days [could not] be said to constitute the recess intended by the Constitution,” 33 Op. Att’y Gen. at 25. As a result, “[t]his Office has generally advised that the President not make recess appointments, if possible, when the break in continuity of the Senate is very brief,” The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982); see, e.g., Recess Appointments—Compensation (5 U.S.C. § 5503), 3 Op. O.L.C. 314, 315–16 (1979) (describing informal advice against making recess appointments during a six-day intrasession recess in 1970). Notwithstanding Attorney General Daugherty’s caution, we advised in 1996 that “recess appointments during [a] 10-day intrasession recess would be constitutionally defensible,” although they would “pose significant litigation risks.” Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments (May 29, 1996). And both this Office and the Department of Justice in litigation have recognized the argument that “the three days set by the Constitution as the time during which one House may adjourn without the consent of the other, 27 36 Op. O.L.C. 15 (2012) 1. The Appointments Clause of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” U.S. Const. art. II, § 2, cl. 2. The Recess Appointments Clause immediately follows and confers on the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id. art. II, § 2, cl. 3. The Clause was adopted at the Constitutional Convention without debate. See 2 The Records of the Federal Convention of 1787, at 533, 540 (Max Farrand ed., rev. ed. 1966). 14 Alexander Hamilton described the Clause in The Federalist as providing a “supplement” to the President’s appointment power, establishing an “auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. U.S. Const. art. I, § 5, cl. 4, is also the length of time amounting to a ‘Recess’ under the Recess Appointments Clause.” Goldsmith Memorandum at 3; Memorandum for John W. Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 3–4 (Dec. 3, 1971); Brief for the United States in Opposition at 11, Evans v. Stephens, 544 U.S. 942 (2005) (No. 04-828) (“[T]he Recess Appointments Clause by its terms encompasses all vacancies and all recesses (with the single arguable exception of de minimis breaks of three days or less[.]” (citing U.S. Const. art. I, § 5, cl. 4)); infra pp. 47–48; see also Hartnett, 26 Cardozo L. Rev. at 424 (“[T]he recess appointment power is best understood as available during both intersession and intrasession Senate recesses of more than three days.”). But see Brief for the United States at 14–18, Mackie v. Clinton, Civ. Action No. 93-0032-LFO (D.D.C. 1993) (arguing that “there is no lower time limit that a recess must meet to trigger the recess appointment power” (capitalization omitted)). 14 The Clause, which was proposed by a North Carolina delegate, is generally considered to have been based on a similar provision then in the North Carolina Constitution. See 2 David K. Watson, The Constitution of the United States 988 (1910) (“The [Recess Appointments Clause] was doubtless taken from the Constitution of North Carolina, which contained a similar clause.” (footnote omitted)); Thomas A. Curtis, Note, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1770 n.71 (1984) (noting that the provision was proposed by a delegate from North Carolina; that the language tracks that of the North Carolina provision; and that the federal power is similar in scope to the power in North Carolina’s Constitution at that time). Because the North Carolina legislature was then generally responsible for appointments, the executive could make appointments only when the legislature was not in session to do so. 28 Recess Appointments Amid Pro Forma Senate Sessions 67, at 409 (Clinton Rossiter ed., 1961). The Clause was necessary because “it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers,” and it “might be necessary for the public service to fill [vacancies] without delay.” Id. at 410. Other contemporaneous writings likewise emphasize that the recess appointment power is required to address situations in which the Senate is unable to provide advice and consent on appointments. See 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 135–36 (Jonathan Elliott ed., 2d ed. 1836) (“Elliott’s Debates”) (statement of Archibald Maclaine at North Carolina ratification convention) (July 28, 1788) (“Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. Therefore the executive ought to make temporary appointments, as well as receive ambassadors and other public ministers. This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is to advise him in the appointment of officers, &c., yet, during the recess, the President must do this business, or else it will be neglected; and such neglect may occasion public inconveniences.”); cf. Letters of Cato IV, reprinted in 2 The Complete AntiFederalist 114 (Herbert J. Storing ed., 1981) (“Though the president, during the sitting of the legislature, is assisted by the senate, yet he is without a constitutional council in their recess . . . .”). 15 Thus, from the days of the Founding, the Recess Appointments Clause has been considered implicated when the Senate is not “in session for the appointment of officers.” The Federalist No. 67, at 410. Nineteenth-century sources reflect this understanding. Justice Story framed the issue in terms of the Senate’s ability to review nominations: 15 See also 2 Elliott’s Debates 513 (statement of James Wilson at Pennsylvania ratification convention) (“[T]here is only left the power of concurring in the appointment of officers; but care is taken, in this Constitution, that this branch of business may be done without [the Senate’s] presence”); id. at 534 (statement of Thomas M’Kean) (Dec. 11, 1787) (“Nor need the Senate be under any necessity of sitting constantly, as has been alleged; for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess[.]”); 3 Elliott’s Debates 409–10 (statement of James Madison at the Virginia convention) (“There will not be occasion for the continual residence of the senators at the seat of government. . . . It is observed that the President, when vacancies happen during the recess of the Senate, may fill them till it meets.”). 29 36 Op. O.L.C. 15 (2012) “There was but one of two courses to be adopted [at the Founding]; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1551, at 410 (1833); id. § 1552, at 411 (discussing renomination when “the senate is assembled”). And as early as the Monroe Administration, the Executive Branch’s analysis of the Clause had begun to focus on the availability of the Senate to be consulted on nominations. See, e.g., Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“[A]ll vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President[.]”) (emphasis added); Power of President to Fill Vacancies, 3 Op. Att’y Gen. 673, 676 (1841) (“[T]he convention very wisely provided against the possibility of such evils [i.e., “interregna in the executive powers”] by enabling and requiring the President to keep full every office of the government during a recess of the Senate, when his advisers could not be consulted [.]”) (emphasis added); Power of President to Appoint to Office during Recess of Senate, 4 Op. Att’y Gen. 523, 526 (1846) (“[T]he vacancy happened at a time, and continues now to exist, when the President cannot obtain the advice and consent of his constitutional advisers. . . . [T]his vacancy happening from the inaction of the Senate on the nomination made[] is within the meaning of the [Recess Appointments Clause], and may be filled by an Executive Appointment.” (emphasis added)). Opinions of the Attorney General have construed the Clause in order to fulfill its purpose that there be an uninterrupted power to fill federal offices. Thus, Attorney General Wirt advised in 1823 that “whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filling which, the advice and consent of the Senate cannot be immediately asked, because of their recess, the President shall have the power of filling it by an appointment” because “[t]he substantial purpose of the constitution was to keep these offices filled; and powers adequate to this purpose were intended to be conveyed.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 632; see also Power of President to Fill Vacancies, 3 Op. Att’y Gen. at 675 (affirming the President’s power to 30 Recess Appointments Amid Pro Forma Senate Sessions make a second recess appointment after the Senate failed to act on a nomination during the term of the first appointment because “the President, charged with the high duty of giving full effect to the law, must have a power like its own existence—perpetual”); President’s Power to Fill Vacancies in Recess of the Senate, 12 Op. Att’y Gen. 32, 38 (1866) (same, because “as to the executive power, it is always to be in action, or in capacity for action; and . . . to meet this necessity, there is a provision . . . against vacancies in all the subordinate offices, and that at all times there is a power to fill such vacancies”). 16 Subsequent Attorneys General and, later, this Office have continued to place central importance on the Senate’s availability to give advice and consent. In his seminal opinion concluding that a significant intrasession adjournment is a “recess” in which recess appointments can be made, Attorney General Daugherty focused on this point: “Regardless of whether the Senate has adjourned or recessed, the real question . . . is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” Daugherty Opinion, 33 Op. Att’y Gen. at 21–22 (second emphasis added); see also id. at 25 (“Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?”). Thus, in determining whether an intrasession adjournment constitutes a recess in the constitutional sense, the touchstone is “its practical effect: viz., whether or not the Senate is capable of exercising its constitutional function of advising and consenting to executive nominations.” Recess Appointments, 41 Op. Att’y Gen. at 467 (emphasis added); accord Intrasession Recess Appointments, 13 Op. Indeed, in construing the phrase “happen during the Recess” in the Recess Appointments Clause to mean “happen to exist” rather than originate in the recess, Attorney General Wirt identified two possibilities: one was “most accordant with the letter of the constitution; the second, most accordant with its reason and spirit.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 632. He chose the “construction of the constitution which is compatible with its spirit, reason, and purpose.” Id. at 633. The courts have subsequently endorsed the construction adopted by Wirt. See, e.g., Evans, 387 F.3d at 1226–27; United States v. Woodley, 751 F.2d 1008, 1012–13 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 710 –14 (2d Cir. 1962); In re Farrow, 3 F. 112, 115–16 (N.D. Ga. 1880). But see Schenck v. Peay, 21 F. Cas. 672, 674 –75 (E.D. Ark. 1869) (finding recess appointment unlawful where the vacancy “existed, but did not happen, during the recess of the senate”); In re District Attorney of United States, 7 F. Cas. 731, 734 –38 (E.D. Pa. 1868) (casting doubt on such an appointment). 16 31 36 Op. O.L.C. 15 (2012) O.L.C. at 272. That understanding has been embraced by some prominent commentators as well. See Louis Fisher, Constitutional Conflicts between Congress and the President 38 (5th ed. 2007) (“A temporary recess of the Senate, ‘protracted enough to prevent that body from performing its functions of advising and consenting to executive nominations,’ permits the President to make recess appointments.” (quoting Recess Appointments, 41 Op. Att’y Gen. at 466)). Significantly, a century ago, the Senate Judiciary Committee adopted a functional understanding of the term “recess” that focuses on the Senate’s ability to conduct business. In rejecting the theory that President Theodore Roosevelt could make recess appointments during a brief “constructive recess” between two sessions of Congress, the Committee wrote of the Recess Appointments Clause: It was evidently intended by the framers of the Constitution that [the word “recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments. . . . Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof. S. Rep. No. 58-4389, at 2 (1905) (second emphasis added); see also Daugherty Opinion, 33 Op. Att’y Gen. at 24 (noting that this report was “most significant of all” authorities in supporting the conclusion that a substantial intrasession adjournment was a constitutional “recess”). The Senate continues to cite that report as an authoritative source “on what constitutes a ‘Recess of the Senate.’” Riddick’s Senate Procedure 947 & n.46 (1992), http://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/pdf/ GPO-RIDDICK-1992-88.pdf (citing report). The Comptroller General attributed a similar understanding to the entire Congress when he opined that the “primary purpose” of the Pay Act was 32 Recess Appointments Amid Pro Forma Senate Sessions to relieve “recess appointees” of the burden of serving without compensation during periods when the Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date. Appointments—Recess Appointments, 28 Comp. Gen. at 37 (emphasis added). 2. Guided by these principles, we conclude that the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause. Our conclusion rests on three considerations. First, both the Framers’ original understanding of the Recess Appointments Clause and the longstanding views of the Executive and Legislative Branches support the conclusion that the President may make recess appointments when he determines that, as a practical matter, the Senate is not available to give advice and consent to executive nominations. The Recess Appointments Clause was adopted to allow the President to fill offices when the Senate was not “in session for the appointment of officers.” The Federalist No. 67, at 410 (Alexander Hamilton). And, from the early days of the Republic, the Executive has taken the position that “all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President.” Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. at 633. Likewise, in 1905, the Senate Judiciary Committee defined “recess” as used in the Clause to be the period of time when the Senate cannot “participate as a body in making appointments.” S. Rep. No. 58-4389, at 2. We do not believe that the convening of periodic pro forma sessions precludes the President from determining that the Senate is unavailable during an intrasession recess otherwise long enough to support the President’s recess appointment authority. During the last three Congresses, such sessions ordinarily have lasted only a few seconds. See, e.g., 157 Cong. Rec. D1404 (daily ed. Dec. 30, 2011) (noting that day’s pro forma session lasted from 11:00:02 until 11:00:34 a.m.); see also supra note 2. 33 36 Op. O.L.C. 15 (2012) Records of the sessions typically do not disclose the presence of any Senator other than the single convening member. See, e.g., 157 Cong. Rec. S8793 (daily ed. Dec. 30, 2011) (reflecting the presence of only Senator Reed). And importantly, the pertinent Senate order states in advance that there is to be “no business conducted” during the ensuing sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011); see also supra pp. 16–17. 17 The purpose of these sessions avowedly is not to conduct business; instead, either the Senate has intended to prevent the President from making recess appointments during its absence or the House has intended to require the Senate to remain in session (toward the same end). See supra pp. 17–18; see also Henry B. Hogue, Cong. Research Serv., RS21308, Recess Appointments: Frequently Asked Questions 3 (rev. Mar. 2008) (noting use of such sessions “for the stated purpose of preventing [recess] appointments”). Under these circumstances, the President could properly consider the pertinent intrasession recess period to be one during which the Senate is not genuinely “capable of exercising its constitutional function of advising and consenting to executive nominations,” Recess Appointments, 41 Op. Att’y Gen. at 467; see Dellinger Opinion, 20 Op. O.L.C. at 161 (noting the President’s “discretion to make a good-faith determination of whether a given recess is adequate to bring the Clause into play”); Daugh- 17 The Senate’s rules would also prevent it from acting on nominations or transacting other legislative business during such sessions if, as expected, only a few Senators are present. Under those rules, a quorum consists of “a majority of the Senators duly chosen and sworn.” Senate Rule VI(1), Senate Standing Rules at 5. Whenever it is determined that “a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.” Senate Rule VI(4), id. at 5–6; see also Riddick’s Senate Procedure at 1046 (“No debate nor business can be transacted in the absence of a quorum[.]”). We recognize that, as a practical matter, neither the scheduling order nor the quorum requirement will always prevent the Senate from acting without a quorum through unanimous consent. Indeed, the Senate has occasionally enacted legislation by unanimous consent during pro forma sessions. See infra p. 45. But as more fully explained below, we do not believe that this sporadic practice requires the President to consider the Senate available to perform its constitutional functions when it is in recess and, particularly, when it has provided by order that no business will be conducted. 34 Recess Appointments Amid Pro Forma Senate Sessions erty Opinion, 33 Op. Att’y Gen. at 25 (discussing the President’s “large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate”). Indeed, as noted above, presidential messages delivered to the Senate during previous recesses were not laid before that body and entered into the Congressional Record until after the recess was over, notwithstanding the convening of pro forma sessions before that date. See supra note 5 & accompanying text. And the Senate has made special arrangements for the appointment of its own officers during the recess, in apparent recognition of the fact that it will not be in session for the purpose of making appointments under its usual procedures. See supra note 4 & accompanying text. “[T]he rationale for treating substantial intrasession adjournments as ‘recesses’ for purposes of the Recess Appointments Clause is that substantial adjournments prevent the Senate from acting on nominations.” Intrasession Recess Appointments, 13 Op. O.L.C. at 273. By the same reasoning, brief pro forma sessions of this sort, at which the Senate is not capable of acting on nominations, may be properly viewed as insufficient to terminate an ongoing recess for purposes of the Clause. 18 This view of the effect of pro forma sessions on the President’s recess appointment power finds additional support in one of this Office’s prior opinions, Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. 15. That opinion addressed the propriety of making recess appointments during a recess that began on January 3, 1992, and ended on January 21, 1992. We noted that, aside from a “brief formal session on January 3” at which the body conducted no business (and which evidently was held to address the terms of the Twentieth Amendment, see infra note 22), the Senate had been in recess since November 27, 1991. 16 Op. O.L.C. at 15 n.1. Thus, we observed that “[f]or practical purposes with In reaching this conclusion, we need not look behind the actual terms of the Senate’s orders. The Senate itself labels the sessions “pro forma” and specifies that there is to be “no business conducted” during those sessions. See, e.g., 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). These orders make clear that the Senate cannot perform its advise-andconsent role during the pro forma sessions. The issue we have been asked to address relates to the legal effect of such sessions on the intrasession recess, and the Senate orders on their face warrant the conclusion that the Senate is unavailable to provide advice and consent during the intrasession recess. 18 35 36 Op. O.L.C. 15 (2012) respect to nominations, this recess closely resembles one of substantially greater length.” Id. To be sure, this Office there stated only that two recesses broken solely by a pro forma session “closely resemble[]” a single recess of greater length, not that they were constitutionally indistinguishable from one. Nevertheless, we thought the effective length of the recess relevant in determining whether the President could make a recess appointment. The same consideration applies here. A lengthy intrasession recess broken only by pro forma sessions closely resembles an unbroken recess of the same length; thus, “[e]xcept for its brief formal session[s] . . . the Senate will have been absent from [January 3, 2012] until [January 23, 2012], a period of [twenty] days.” Id. And in determining whether such a recess triggers the President’s appointment authority under the Recess Appointments Clause, we believe the critical inquiry is the “practical” one identified above—to wit, whether the Senate is available to perform its advise-and-consent function. For practical purposes, the President may properly view the Senate as unavailable for twenty days. Second, allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma sessions would be inconsistent with both the purpose of the Clause and historical practice in analogous situations. As explained above, the Recess Appointments Clause has long been understood as intended to provide a method of appointment when the Senate was unavailable to provide advice and consent, so that offices would not remain vacant to the detriment of the public interest. If the Senate can avoid a “Recess of the Senate” under the Clause by having a single Member “gavel in” before an empty chamber, then the Senate can preclude the President from making recess appointments even when, as a practical matter, it is unavailable to fulfill its constitutional role in the appointment process for a significant period of time. The purpose of the Clause is better served by a construction that permits the President to make recess appointments when the Senate is unavailable to advise and consent for lengthy periods. See Power of President to Fill Vacancies, 2 Op. Att’y Gen. 525, 526–27 (1832) (“[A] construction that defeats the very object of the grant of power cannot be the true one. It was the intention of the constitution that the offices created by law, and necessary to carry on the operations of the government, should always be full, or, at all events, that the vacancy should not be a protracted one.”); cf. Wright v. United States, 302 U.S. 36 Recess Appointments Amid Pro Forma Senate Sessions 583, 596 (1938) (“We should not adopt a construction [of the Veto Clauses] which would frustrate either of the[ir] purposes.”). Further, Presidents have routinely exercised their constitutional authority to make recess appointments between sessions of Congress since President Washington made such appointments in the earliest days of the Republic. Although we have focused in this opinion on the twenty-day intrasession recess at the beginning of the second session, the Senate in fact adjourned pursuant to an order that provided that there would also be “no business conducted” for the final seventeen days of the first session. This period of time, a total of thirty-seven days, in substance closely resembles a lengthy intersession recess. See Recess Appointments During an Intrasession Recess, 16 Op. O.L.C. at 15 n.1. Thus, an understanding of the Recess Appointments Clause that permits the President to make appointments during this recess also would be consistent with historical practice. Third, permitting the Senate to prevent the President from making recess appointments through pro forma sessions would raise constitutional separation of powers concerns. To preserve the constitutional balance of powers, the Supreme Court has held that congressional action is invalid if it “‘undermine[s]’ the powers of the Executive Branch, or ‘disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.’” Morrison v. Olson, 487 U.S. 654, 695 (1988) (quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856 (1986); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977) (alterations in Morrison)); accord Loving v. United States, 517 U.S. 748, 757 (1996) (“[I]t remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. Even when a branch does not arrogate power to itself . . . the separationof-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” (citations omitted)). The Constitution expressly confers upon the President the power to make recess appointments when the Senate is unable to give its advice and consent because it is in recess. It is the established view of the Executive Branch that Congress may not derogate from the President’s constitutional authority to fill up vacancies during recesses, by granting less power to 37 36 Op. O.L.C. 15 (2012) a recess appointee than a Senate-confirmed occupant of the office would exercise: “Provisions purporting to grant authority only to individuals confirmed by the Senate interfere with the President’s recess appointment power, and are unconstitutional.” Memorandum for J. Paul Oetken, Associate Counsel to the President, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Displacement of Recess Appointees in Tenure-Protected Positions at 6 (Sept. 1, 2000) (quoting Statement Upon Signing H.R. 5678 (Oct. 6, 1992), 2 Pub. Papers of Pres. George H.W. Bush 1767, 1768 (1992); see also Memorandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Richard Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Foreign Claims Settlement Commission at 6 (Nov. 12, 1993) (the principle that “recess appointees have the powers and rights of Senate-confirmed appointees” is “a constitutional principle of great importance”). 19 In such circumstances, however, the President can still make recess appointments. Senate action that would completely prevent the President from making recess appointments in situations where the Senate is as a practical matter unavailable would do even more to “disrup[t] the proper balance between the coordinate branches,” Morrison, 487 U.S. at 695, and “intrud[e] upon” the President’s constitutional prerogatives, Loving, 517 U.S. at 757; cf. Daugherty Opinion, 33 Op. Att’y Gen. at 23 (“If the President’s power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to 19 These concerns also have been enunciated in other presidential signing statements. See Statement on Signing the Energy Policy Act of 1992 (Oct. 24, 1992), 2 Pub. Papers of Pres. George H.W. Bush 1962, 1963 (1992) (stating that a provision that “authorizes a Transition Manager to exercise the powers of the Corporation until a quorum of the Board of Directors has been ‘appointed and confirmed,’ must be interpreted so as not to interfere with my authority under Article II, section 2 of the Constitution to make recess appointments to the Board”); Statement on Signing the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1985 (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan 1210, 1211 (1984) (explaining that a bill intended to restrict powers of recess appointees would raise “troubling constitutional issues”). 38 Recess Appointments Amid Pro Forma Senate Sessions believe that the framers of the Constitution ever intended such a catastrophe to happen.”). 20 There is also some judicial authority recognizing the need to protect the President’s recess appointment authority from congressional incursion. See McCalpin v. Dana, No. 82-542, at 14 (D.D.C. Oct. 5, 1982) (“The system of checks and balances crafted by the Framers . . . strongly supports the retention of the President’s power to make recess appointments.”), vacated as moot, 766 F.2d 535 (D.C. Cir. 1985); id. at 14 (explaining that the “President’s recess appointment power” and “the Senate’s power to subject nominees to the confirmation process” are both “important tool[s]” and “the presence of both powers in the Constitution demonstrates that the Framers . . . concluded that these powers should coexist”); Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) (“it is . . . not appropriate to assume that this Clause has a species of subordinate standing in the constitutional scheme”); id. at 598 (“It follows that a construction of [a statute] which would preclude the President from making a recess appointment in this situation—i.e., during a Senate recess and after the statutory term of the incumbent [official] has expired—would 20 This Office occasionally has raised similar concerns about the constitutionality of the Pay Act, 5 U.S.C. § 5503 (2006), which imposes certain restrictions on the payment of recess appointees. See Memorandum for the Attorney General, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments at 7 n.7 (July 7, 1988) (“Because it places limitations on the President’s exercise of his constitutional authority, 5 U.S.C. § 5503 may be unconstitutional.”); Intrasession Recess Appointments, 13 Op. O.L.C. at 276 n.6 (“If the [Pay Act] were to preclude the President from paying a recess appointee in these circumstances, it would raise serious constitutional problems because of the significant burden that an inability to compensate an appointee would place on the textually committed power of the President to make recess appointments.”). The Senate’s use of pro forma sessions to prevent the President from making recess appointments, if valid, would constitute a greater restriction on recess appointment authority than the terms of the Pay Act. The latter allows payment of recess appointees under a number of circumstances and permits retroactive payment after a person serving under a recess appointment has been confirmed. Foreign Claims Settlement Commission at 9; Memorandum for Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal Counsel, from Herman Marcuse, Attorney-Adviser, Office of Legal Counsel, Re: Constitutionality of 5 U.S.C. 56 (Recess Appointments) at 1 (Sept. 27, 1961). In contrast, the Senate’s use of pro forma sessions, if it had the effect of shortening recesses to a period insufficient to constitute a “recess” under the Recess Appointments Clause, would prevent the President from making recess appointments in the circumstances presented, even if the person to be appointed would serve without compensation. 39 36 Op. O.L.C. 15 (2012) seriously impair his constitutional authority and should be avoided [if it] is possible to do so.”); see also Swan v. Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (rejecting an argument that “rests on the assumption that a recess appointment is somehow a constitutionally inferior procedure”). But see Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C. 1994) (concluding, contrary to McCalpin and Staebler, that a holdover provision could preclude a recess appointment), rev’d on other grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 57–58 (D.D.C. 1993) (same), vacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir. Mar. 9, 1994). We recognize that the Senate may choose to remain continuously in session and available to exercise its advise-and-consent function and thereby prevent the President from making recess appointments. But, under the legal authority set forth above, the President may properly determine that the Senate is not available under the Recess Appointments Clause when, while in recess, it holds pro forma sessions where no business can be conducted. Such sessions do not have the legal effect of interrupting a Senate recess for purposes of the Recess Appointments Clause. 3. We have considered several counterarguments to our analysis. In our judgment, these points, while not insubstantial, do not overcome the conclusion presented above. First, we considered that the Senate has employed pro forma sessions in other contexts and that, in those contexts, a pro forma session may have the same legal effect as any other session and thus may fulfill certain constitutional requirements. For example, pro forma sessions are most commonly used to address the requirement that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” U.S. Const. art. I, § 5, cl. 4; see U.S. Senate Glossary, http://www.senate.gov/reference/glossary_term/pro_ forma_session.htm (last visited ca. Jan. 2012) (defining “pro forma session” as a “brief meeting (sometimes only several seconds) of the Senate in which no business is conducted”; “[i]t is held usually to satisfy 40 Recess Appointments Amid Pro Forma Senate Sessions the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other”). 21 In addition, in 1980, and sporadically thereafter, pro forma sessions have been used to address the Twentieth Amendment’s direction that, in the absence of legislation providing otherwise, Congress must convene on January 3. 22 Pro forma sessions have also been employed for parliamentary purposes, e.g., to permit a cloture vote to ripen, or to hear an address. 23 Those precedents provide only weak support for the claim that a series of consecutive pro forma sessions may be used to block recess appointments in the circumstances presented here. There is no evidence of a Riddick’s Senate Procedure identifies several examples in which “the Senate pursuant to a previous order has met for very brief periods and recessed over until a subsequent date, not in excess of 3 days,” the earliest of which occurred in 1949. Id. at 251 & nn.1–3. 22 U.S. Const. amend. XX, § 2 (“Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”). Congress routinely enacts legislation when it wishes to vary the date of its first meeting. See, e.g., Pub. L. No. 111-289 (2010); Pub. L. No. 105-350 (1998); Pub. L. No. 99-613 (1986); Pub. L. No. 94-494 (1978); Pub. L. No. 89-340 (1965); Pub. L. No. 83-199 (1953); Pub. L. No. 79-289 (1945). Occasionally, however, Congress (or an individual House) uses a pro forma session to comply with the Twentieth Amendment’s default date. The first such use of a pro forma session that we are aware of occurred in 1980. See H.R. Con. Res. 232, 96th Cong., 93 Stat. 1438 (1979) (“[W]hen the Congress convenes on January 3, 1980, . . . neither the House nor the Senate shall conduct organizational or legislative business until Tuesday, January 22, 1980, [unless convened sooner by House and Senate leaders].”). Thereafter, it appears to have remained rare until the last decade. See H.R. Con. Res. 260, 102d Cong., 105 Stat. 2446 (1991) (providing that neither House shall “conduct organizational or legislative business” on January 3, 1992); 151 Cong. Rec. S14,421 (daily ed. Dec. 21, 2005) (Senate order providing for “a pro forma session only” on January 3, 2006”); 153 Cong. Rec. S16,069 (daily ed. Dec. 19, 2007) (same for January 3, 2008); 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (same for January 3, 3012). On at least one occasion, Congress has changed the date of the first meeting of a session by law and both Houses held pro forma sessions to comply with that law. See Pub. L. No. 111-121, 123 Stat. 3479 (2009) (providing that the second session of the 111th Congress begin on January 5, 2010); 155 Cong. Rec. S14,140 (daily ed. Dec. 24, 2009) (Senate order providing for “a pro forma session only” on January 5, 2010); 156 Cong. Rec. H2–H8 (daily ed. Jan. 5, 2010) (“[N]o organizational or legislative business will be conducted on this day.”). 23 See 133 Cong. Rec. 15,445 (1987) (“The Senate will go over until Monday pro forma, no business, no speeches, just in and out, and the pro forma meeting on Monday would qualify the cloture motion to be voted on Tuesday[.]”); 139 Cong. Rec. 3039, 3039 (1993) (“Any sessions will be pro forma or solely for the purpose of hearing the Presidents’ Day address on Wednesday morning.”). 21 41 36 Op. O.L.C. 15 (2012) tradition of using pro forma sessions to prevent a “recess” within the meaning of the Recess Appointments Clause. That attempt began in 2007 with the 110th Congress. 24 There may be at least a limited tradition of a House of Congress using consecutive pro forma sessions to avoid adjournments of more than three days without obtaining the other House’s consent. 25 But past uses of pro forma sessions for housekeeping purposes are not good analogies for the current use of pro forma sessions to block appointments under the Recess Appointments Clause. The former uses affect the operations of only the House in question, and the Constitution provides that “[e]ach House may determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2. Even uses in connection with interchamber relations affect the Legislative Branch alone. The question whether the 24 It does appear, though, that the use of pro forma sessions to prevent recess appointments was at least contemplated as early as the 1980s. See 145 Cong. Rec. 29,915 (1999) (statement of Sen. Inhofe) (“[Senator Byrd] extracted from [the President] a commitment in writing that he would not make recess appointments and, if it should become necessary because of extraordinary circumstances to make recess appointments, that he would give the list to the majority leader . . . in sufficient time in advance that they could prepare for it either by agreeing in advance to the confirmation of that appointment or by not going into recess and staying in pro forma so the recess appointments could not take place.”). 25 For example, in 1929, a concurrent resolution provided that the House return from summer recess on September 23, 71 Cong. Rec. 3045 (June 18, 1929). The House passed a separate resolution providing that “after September 23, 1929, the House shall meet only on Mondays and Thursdays of each week until October 14, 1929,” provided that the Speaker could call them back sooner if “legislative expediency shall warrant it,” id. at 3228 (June 19, 1929). Although it was not so stated in the text of the resolution, it was “agreed that there shall be nothing transacted [during the Monday and Thursday sessions] except to convene and adjourn; no business whatever.” Id. at 3229 (statement of Rep. Tilson); see also 8 Cannon’s Precedents of the House of Representatives § 3369, at 820 (1935) (describing this incident as one in which the House “provid[ed] for merely formal sessions”). This arrangement was subsequently extended twice. 71 Cong. Rec. 4531–32 (Oct. 14, 1929) (H.R. Res. 59, described by Rep. Tilson as “the same resolution, the dates being changed, as the original recess resolution passed by the House last June); id. at 5422 (Nov. 11, 1929). Subsequent examples from the Senate involve more formal agreements to the pro forma nature of the sessions. See, e.g., 96 Cong. Rec. 16,980 (Dec. 22, 1950) (setting schedule of two consecutive pro forma sessions); id. at 17,020 (Dec. 26, 1950); id. at 17,022 (Dec. 29, 1950); 126 Cong. Rec. 2574 (Feb. 8, 1980) (setting schedule of two consecutive pro forma sessions); id. at 2614 (Feb. 11, 1980); id. at 2853 (Feb. 14, 1980); 127 Cong. Rec. 190 (Jan. 6, 1981) (setting schedule of three consecutive pro forma sessions); id. at 238 (Jan. 8, 1981); id. at 263 (Jan. 12, 1981); id. at 276 (Jan. 15, 1981). 42 Recess Appointments Amid Pro Forma Senate Sessions use of pro forma sessions for those purposes is consistent with the Constitution is not presented here. Assuming that such uses are constitutional, however, it does not follow that pro forma sessions may be used to prevent the President from exercising his constitutional authority to make recess appointments when he determines that the Senate is unavailable to provide advice and consent. 26 Put differently, whether the House has consented to the Senate’s adjournment of more than three days does not determine the Senate’s practical availability during a period of pro forma sessions and thus does not determine the existence of a “Recess” under the Recess Appointments Clause. Second, it might be argued that, in light of the Senate’s power to “determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, the Executive Branch would be bound by the Chamber’s own understanding of whether the pro forma sessions have the legal effect of interrupting a “Recess of the Senate” for the purposes of the Recess Appointments Clause. The Rules of Proceedings Clause has been understood to grant the Houses of Congress broad discretion in managing their internal affairs. See, e.g., United States v. Ballin, 144 U.S. 1, 5 (1892) (“[A]ll matters of method [of proceeding] are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.”). That Clause might also be understood to permit them conclusively to determine when they are in session and when they are in recess. See, e.g., Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 Cardozo L. Rev. 443, 459 (2005) (“I would think that pursuant to the authority of each House to make rules for its own proceedings Congress could decide to hold twelve ‘sessions’ each calendar year, with a few days off— perhaps just a weekend—between them.”); cf. Arthur S. Miller, Congressional Power to Define the Presidential Pocket Veto Power, 25 Vand. L. Cf. Letter for Peter W. Rodino, Jr., Chairman, Committee on the Judiciary, U.S. House of Representatives, from Robert G. Dixon, Assistant Attorney General, Office of Legal Counsel at 4 –5 (Dec. 4, 1973) (“Under Section 2 of H.R. 7386, Congress could prevent the exercise of a pocket veto, except at the close of a Congress, when one or both Houses adjourned for several months, by adjourning either to a date certain or pro forma to a date close to the beginning of the next working session. . . . To the extent that H.R. 7386 unconstitutionally permits Congress to keep a bill in suspended animation for lengthy periods during adjournments other than sine die, it unconstitutionally narrows the President’s pocket veto authority.”). 26 43 36 Op. O.L.C. 15 (2012) Rev. 557, 567 (1972) (“Surely the determination of what constitutes adjournment is a ‘proceeding’ within the terms of that section [the Rules of Proceeding Clause].”). The Supreme Court, however, has made clear that Congress’s power under this provision is not unlimited, and specifically that Congress “may not by its rules ignore constitutional restraints or violate fundamental rights.” Ballin, 144 U.S. at 5. Thus, the validity and application of congressional rules are subject to review in court when the rules affect interests outside of the Legislative Branch. See, e.g., United States v. Smith, 286 U.S. 6, 33 (1932) (“As the construction to be given the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one.”); Ballin, 144 U.S. at 5 (“[T]here should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.”); Vander Jagt v. O’Neill, 699 F.2d 1166, 1173 (D.C. Cir. 1983) (“Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.”). A Senate rule that pro forma sessions interrupt a “Recess of the Senate” (or that otherwise seeks to prevent the President from exercising authority under the Recess Appointments Clause) would affect other persons—the President and potential appointees at the least. It would also disrupt the Constitution’s balancing of executive and legislative authority in the appointments process. To be sure, as explained above, the President’s authority to make recess appointments is constrained when the Senate is continuously in session and available to perform its advise-and-consent function. But the Senate could not by rule unilaterally prevent the President from exercising his authority to make temporary appointments under the Clause by declaring itself in session when, in practice, it is not available to provide advice and consent, any more than the President could make a recess appointment when the Senate was in practice available to do so. See Daugherty Opinion, 33 Op. Att’y Gen. at 25 (recognizing that a “palpable abuse” of the President’s “discretion to determine when there is a real and genuine recess” of the Senate might subject his appointment to review”). 27 The Senate’s scheduling of pro forma sessions to frustrate the President’s recess appointment authority does not require us to treat the President’s constitutional recess appointment authority as operating at the “lowest ebb” of presidential power under the framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. 27 44 Recess Appointments Amid Pro Forma Senate Sessions Third, it could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions. Twice in 2011, the Senate passed legislation during pro forma sessions by unanimous consent, evidenced by the lack of objection from any member who might have been present at the time. 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011); id. at S5297 (daily ed. Aug. 5, 2011). During one of these sessions, the Senate also agreed to a conference with the House, and messages received from the House earlier in the intrasession recess were put into the Congressional Record. 157 Cong. Rec. S8789–90 (daily ed. Dec. 23, 2011). Conceivably, the Senate might provide advice and consent on pending nominations during a pro forma session in the same manner. We do not believe, however, that these examples prevent the President from determining that the Senate remains unavailable to provide advice and consent during the present intrasession recess. The scheduling order under which the pro forma sessions are held during this recess expressly provides that there is to be “no business conducted.” 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2001). In our judgment, the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions. Moreover, even absent a Senate pronouncement that it will not conduct business, there may be circumstances in which the President could properly conclude that the body is not available to provide advice and consent for a sufficient period to support the use of his recess appointment power. It is common for Sawyer, 343 U.S. 579, 637 (1952). The Constitution explicitly grants recess appointment authority to the President, and the Attorney General has long taken the position that, through enactment of the Pay Act, Congress has “acquiesce[d]” to recess appointments under circumstances where that Act would permit payment. See Recess Appointments, 41 Op. Att’y Gen. at 466; see also Appointments—Recess Appointments, 28 Comp. Gen. at 34, 37 (recognizing the “accepted view” that an extended intrasession adjournment of the Senate is a “recess” in the constitutional sense during which “an appointment properly may be made” and that recipients of such appointments were entitled to pay). Moreover, it is unclear that Justice Jackson’s framework would apply in matters involving the balance between the President’s constitutional authority to make recess appointments and a single House of Congress’s constitutional authority to set its internal rules. 45 36 Op. O.L.C. 15 (2012) resolutions of adjournment authorizing extended intrasession recesses to provide that the Senate “stand[s] recessed or adjourned until [a specified date], . . . or until the time of any reassembly” ordered by the leaders of the two Houses “as they may designate whenever, in their opinion, the public interest shall warrant it.” See, e.g., H.R. Con. Res. 361, 108th Cong. (2004). That potential for reassembly by itself does not deprive an extended Senate absence of its character as a recess. In fact, the Senate had adjourned pursuant to such a resolution before the intrasession recess during which Judge Pryor was appointed to the Eleventh Circuit. That recess appointment was approved by this Office, see Goldsmith Memorandum, and upheld by the court of appeals en banc, see Evans v. Stephens, 387 F.3d 1220. Fourth, legal precedent addressing the President’s authority to pocket veto during a recess a bill passed by Congress conceivably might be viewed as constraining the President’s recess appointment authority in the current recess. For example, in Wright v. United States, 302 U.S. 583, the Supreme Court held that a temporary adjournment of the Senate (for which consent of the House was not required under Article I, Section 5, Clause 4 of the Constitution) did not prevent the President from vetoing a bill. And in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the D.C. Circuit extended Wright to reach all intrasession adjournments, provided that arrangements were made for the receipt of presidential messages. 28 It could be argued that these cases either delineate the types of Senate adjournments that are insufficient to qualify as a “Recess of the Senate” under the Recess Appointments Clause, or establish that the Senate can take some action short of actually remaining in session to mitigate the consequences of its absence. We have previously observed that “[w]hile the Pocket Veto and Recess Appointments Clauses deal with similar situations, that is, the President’s powers while Congress or the Senate is not in session, their language, effects, and purposes are by no means identical.” Recess Appointments Issues, 6 Op. O.L.C. 585, 589 (1982). And “[i]n light of the[se] differen[ces] . . . we do not believe [that Sampson] should be read as having any significant In Barnes v. Kline, 759 F.2d 21, 41 (D.C. Cir. 1985), the court held that the President is not “prevent[ed]” from returning a bill even during an intersession recess if a duly authorized officer of the originating house is available to receive it. That decision was later vacated as moot. See Burke v. Barnes, 479 U.S. 361 (1987). 28 46 Recess Appointments Amid Pro Forma Senate Sessions bearing on the proper interpretation of the Recess Appointments Clause.” Id. at 590. Moreover, we have concluded that “there are sound reasons to believe that the President has authority to make recess appointments in situations in which a pocket veto might well be inappropriate.” The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982). The Pocket Veto Clause “ensures that the President will not be deprived of his constitutional power to veto a bill by reason of an adjournment.” Recess Appointments Issues, 6 Op. O.L.C. at 590. The holdings in Wright and Sampson—that the President could not pocket veto a bill during an intrasession recess where the Senate had designated an agent to receive the return of a bill—were “bottomed on the theory that [the adjournments at issue] did not ‘prevent’ the return of disapproved bills.” The Pocket Veto, 6 Op. O.L.C. at 149. Put another way, the designation of an agent to receive messages and the pocket veto serve the same purpose, i.e., protecting the President’s right to disapprove bills, and therefore obviate the need for the power provided by the Clause. The Recess Appointments Clause, however, serves a different purpose. It “enables the President to fill vacancies which exist while the Senate is unable to give its advice and consent because it is in recess.” Recess Appointments Issues, 6 Op. O.L.C. at 590. The designation of an agent to receive messages neither allows the President to fill vacancies nor makes the Senate available to advise and consent. Thus, the President’s ability to make appointments during a recess is necessary to further the Recess Appointments Clause’s purpose, while the President’s authority to pocket veto arguably is not necessary when the presence of a congressional agent allows him to return a bill, exercising his constitutional prerogative to disapprove legislation. While the congressional designation of an agent arguably addresses the constitutional concerns embodied in the President’s pocket veto authority, the periodic convening of pro forma sessions at which no business is to be conducted simply does not address the constitutional concerns arising from the Senate’s unavailability to consider appointments. Finally, we considered whether the Department of Justice has already taken a different view. In arguing that the recess appointment of a member of the National Labor Relations Board (“NLRB”) did not render moot the controversy about legal consequences of the absence of a Board quorum, the Solicitor General said that “the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over 47 36 Op. O.L.C. 15 (2012) a lengthy period,” using the Senate’s 2007 pro forma sessions as an example. Letter for William K. Suter, Clerk, Supreme Court of the United States, from Elena Kagan, Solicitor General, Office of the Solicitor General, at 3 (April 26, 2010), New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (No. 08-1457). This portion of the letter is focused on the question whether an intrasession recess of three days or fewer constitutes a recess under the Recess Appointments Clause. See id. (“[T]he Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.”); id. at 3 n.2 (“[O]fficial congressional documents define a ‘recess’ as ‘any period of three or more complete days . . . when either the House of Representatives or the Senate is not in session.’” (quoting 2003–2004 Congressional Directory 526 n.2 (Joint Comm. on Printing, 108th Cong., comp. 2003)). The letter (like this opinion, see supra note 13) does not answer that question. Instead, the letter uses the uncertain status of recess appointments during intrasession recesses of three or fewer days to argue that the possibility of recess appointments did not render New Process Steel moot. Thus, it does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause. III. In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments. VIRGINIA A. SEITZ Assistant Attorney General Office of Legal Counsel 48

Write a legal research memo on the following topic.

Applicability of 18 U.S.C. § 207(a) to the Union Station Development Corporation 18 U .S .C . § 207(a) does not prohibit a fo rm er em ployee o f the D istrict o f C olum bia governm ent now w o rking fo r the U nion S tation Redevelopm ent C orporation from com m unicating with the D istrict g overnm ent co n cerning m atters on w hich she worked as a D istrict em ployee, because the Corpo­ ration should be regarded as “the U n ited S tates” for the purposes o f that statute. May 10, 1988 M em o ran d u m O O f f ic e p in io n f o r t h e of D eputy D ir e c t o r G o v e r n m e n t E t h ic s This responds to your request for the opinion of this Office whether 18 U.S.C. § 207(a) bars a former employee of the District of Columbia government now working for the Union Station Redevelopment Corporation (“USRC”) from com­ municating with the District government in connection with matters on which she worked as a District employee. Section 207(a) prohibits former federal gov­ ernment employees, including employees of the District of Columbia govern­ ment, from representing “any other person (except the United States)” in matters on which the employee worked as a government employee. For the reasons set forth below, we conclude that section 207(a) poses no bar to the former em­ ployee’s communicating with the District government because USRC should be regarded as “the United States” for purposes of that statute. In the past, we have looked to the definition of “agency of the United States” in 18 U.S.C. § 6 to determine if an entity should be regarded as the United States for the purposes of the conflict of interest laws. See Applicability o f 18 U.S.C. § 205 to Union Organizing Activities o f Department o f Justice Employee, 5 Op. O.L.C. 194 (1981) (Office of the Architect of the Capitol an agency of the United States for purposes of 18 U.S.C. § 205); Letter for the Secretary of the Army, from Attorney General Clark (Dec. 2, 1948) (Panama Railroad Company an agency of the United States for purposes of the conflict of interest laws). Section 6 provides: The term “agency” includes any department, independent es­ tablishment, commission, administration, authority, board or bu­ reau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense. 84 18 U.S.C. § 6. The legislative history of the provision adds: The phrase “corporation in which the United States has a pro­ prietary interest” is intended to include those governmental cor­ porations in which stock is not actually issued, as well as those in which stock is owned by the United States. It excludes those cor­ porations in which the interest of the Government is custodial or incidental. H.R. Rep. No. 304, 80th Cong., 1st Sess. A6 (1947) (revisers’ notes reprinted in 18 U.S.C. § 6). Few judicial precedents are available to guide us in interpreting 18 U.S.C. § 6, and none of those involve corporations similar to USRC.' In his 1948 letter to the Secretary of the Army, supra, the Attorney General concluded that the Panama Railroad Company was an agency of the United States under 18 U.S.C. § 6. Although he did not explain what factors led to that conclusion, an exami­ nation of the status of the Panama Railroad Company in 1948 reveals several rel­ evant considerations. Under the Act of June 29, 1948, 62 Stat. 1075, 1076-80, the Panama Railroad Company was “an agency and instrumentality of the United States,” funded by congressional appropriations and transfers from other gov­ ernment agencies, with the responsibility for operating a railroad across the Panamanian Isthmus and for building and maintaining the infrastructure of the Canal Zone. More helpful is the discussion of the definition of “agency of the United States” in this Office’s opinion finding the Federal National Mortgage Association (“FNMA”) an agency of the United States for the purposes of 18 U.S.C. § 431. Section 431, another conflict of interest provision, prohibits Members of Con­ gress from entering into contracts with agencies of the United States. In a mem­ orandum for Joseph F. Dolan, Assistant Deputy Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel (Dec. 18, 1963) (“Schlei Memorandum”), we concluded that the status of the FNMA as an agency of the United States precluded the FNMA’s representation by a law firm of which a Congressman was a member. We examined the charter of the FNMA and de­ termined that it was a “corporation in which the United States has a proprietary interest.” Id. at 3. In making this determination we took into account the follow­ ing factors: 1) the corporation was created by federal statute; 2) one of the FNMA’s functions was “to provide Government assistance for certain types of mortgages”; 3) the FNMA was a mixed-ownership corporation in which the Sec­ retary of the Treasury owned the preferred stock; and 4) the United States exer­ cised substantial control over the FNM A’s activities. Id. at 4—6. 1 Compare United States v Allen, 193 F. Supp. 954,957 (S D. Cal. 1961) (a federal grand jury is not an agency of the United States) with United States v. Stark, 131 F. Supp. 190, 194 (D. Md. 1955) (the FBI is an agency o f the United States). Neither o f these cases suggests any standards that can be used to decide whether a particular cor­ porate entity should be regarded as an “agency o f the United States" under the statute. 85 Based upon these precedents, we believe that USRC should be regarded as an agency of the United States for purposes of title 18 if the interest of the United States in the corporation is “proprietary,” but not if the interest of the United States is “custodial or incidental.” In making this determination, we look to USRC’s functions, financing, control, and management. Cf. Government Nat’I Mortgage Ass’n v. Terry, 608 F.2d 614, 618 (5th Cir. 1979).2 U SR C ’s functions are those entrusted by Congress to the Department of Trans­ portation in the Union Station Redevelopment Act of 1981, 40 U.S.C. §§ 801-819. Congress anticipated that “a nonprofit, public-private development cor­ poration” could be created to manage the redevelopment of the Union Station complex. S. Rep. No. 269, 97th Cong., 1st Sess. 13 (1981), reprinted in 1981 U.S.C.C.A.N. 2711,2723. USRC “was formed to assist the Secretary in achiev­ ing the objectives of the Redevelopment Act and generally to facilitate the rede­ velopment o f the Union Station complex.” Union Station Redevelopment Coop­ erative Agreement at 3 (Nov. 1983) (“Union Station Agreement”). In particular, USRC’s responsibilities include selecting and monitoring the developer of the station complex, ensuring that adequate provision is afforded Amtrak for its cur­ rent and future use of the station, and working with other interested parties in the redevelopment of the station. Id. at 6-7. Although these functions presumably could be handled by private enterprise without federal control, that is not an ad­ equate basis for finding that an entity is not an agency of the United States. See Rauscher, 789 F.2d at 315. See also Schlei Memorandum at 5 (FNMA is an agency of the United States even though it is empowered “to engage in its busi­ ness activities in a manner comparable to that of private institutions engaged in similar activities”). In this case, Congress assigned USRC’s responsibilities to the Department of Transportation. USRC is simply the vehicle created by that Department to accomplish the congressional mandate. USRC is financed by several sources. Amtrak is obligated to provide up to sev­ enty million dollars to USRC for the redevelopment project. Union Station Agree­ 2 Terry construed the meaning of “agency” under 28 U.S.C. § 451, which defines “agency” in a manner similar to the definition in 18 U.S.C. § 6. Moreover, the historical and revisions notes o f section 451 state that “agency” in section 451 conform s to the definition of “ agency” in 18 U.S.C. § 6. Accordingly, the court in Terry used the dis­ cussion o f “proprietary corporation" in the revisers’ notes to 18 U.S.C. § 6 to determine if Ginnie Mae should be held an agency o f the United States for the'purposes o f determining federal jurisdiction See 608 F.2d at 618-20 (G innie Mae is an agency because of the control HUD exercises over Ginnie Mae, the intent o f Congress to retain governm ental control over the federal housing program, and the funds provided by— and profits returned by Gin­ nie M ae to— the federal government). See a lso Rauscher Pierce Refsnes, Inc. v. FDIC, 789 F.2d 313, 314-16 (5th Cir. 1986) (FDIC is an agency because of the “ important governmental functions" performed by the FDIC, the pres­ ence o f the Comptroller General and two presidential appointees on the three member board, the authority to issue regulations, and the control by Treasury over the money o f the FDIC); LPR Land Holdings v. Federal Land Bank, 651 F. Supp. 2 8 7 ,2 9 0 (E.D. Mich. 1987) (a federal land bank is not an agency because being chartered by and reg­ ulated by the federal government is not sufficient to make an entity an agency of the United States). A lthough title 28 incorporates the definition o f agency in title 18, the converse is not true. It is possible that different considerations influence whether an agency should be considered part of the United States for jurisdic­ tional purposes and w hether an agency is part of the United States for the purpose of defining a criminal offense. Thus, cases decided under title 28 are not dispositive under title 18, but they are useful in examining the factors that courts have found relevant to deciding w hether an entity is an “agency” o f the United States. 86 ment at 8.3 The Federal Railroad Administration (“FRA”), an agency within the Department of Transportation, was required to provide $340,000 for the opera­ tion and maintenance of Union Station between October 1, 1983 and September 30, 1984; the FRA has a continuing obligation to provide financial assistance to USRC to the extent that its funds are available for this purpose. Id. at 4—5,9. The District of Columbia contributes federal highway funds to USRC. Also, any in­ come that USRC earns in the course of its work is to be used “to further project objectives.” Id. at 11. USRC has no obligation to seek funds from any source. Id. at 7. USRC is managed by a five member board of directors. Two members— the Secretary of Transportation and the Federal Railroad Administrator— are offi­ cials of the federal government. A third member— the Mayor of the District of Columbia— has the status of a federal official under the conflicts laws. Another member—the president of Amtrak—represents a mixed-ownership government corporation. See supra note 3. The president of the Federal City Council repre­ sents a private entity.4 The day-to-day operations of USRC are handled by a pres­ ident, a vice-president, two full-time employees, and one part-time employee, al­ though the members of the board of directors also play significant, albeit varying, roles in this regard.5 While the question seems to us a close one, on balance we believe that the functions, financing, management and control of USRC make that entity an “agency of the United States” under 18 U.S.C. § 6, and that accordingly it should be considered “the United States” under 18 U.S.C. § 207(a). Our conclusion in this regard is reinforced by the purposes of section 207(a) itself. Several justifi­ cations for the restrictions imposed by that section on post-government employ­ ment have been advanced: the need to prevent the use of confidential govern­ ment information for the benefit of a private party, the unseemliness of switching sides, the fear of undue influence over former colleagues, avoidance of pressure on government employees who anticipate future private employment, and pro­ tection from the appearance of a conflict of interest. See, e.g., Bayless Manning, Federal Conflict of Interest Law 179-81 (1964) (reviewing the legislative his­ tory of the predecessor statute to section 207). See also ABA Comm, on Ethics and Professional Responsibility, Formal Op. 342 (1975). These same dangers are 3 Amtrak is a “mixed-ownership Government corporation.” 31 U.S.C § 910l(2)(A ). It is not “an agency o r es­ tablishment o f the United States Government.” 45 U S C. §§ 541, 581(b)(1). Nonetheless, we have advised that Amtrak is an “agency” for the purposes o f the Privacy Act, 5 U.S.C. § 552a, because Amtrak is a “Government controlled corporation” under 5 U.S.C. § 552(e). Letter for William M. Nichols, General Counsel, Office of M an­ agement and Budget, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Oct. 7, 1976) Further, more than one-third o f Amtrak’s total expenses for fiscal year 1987 was funded by congressional appro­ priations. See H R. Rep No. 202, 100th Cong , 1st Sess. 101-02 (1987) 4 The Federal City Council is a civic organization comprised o f prominent W ashington residents It essentially operates as a booster group for the city. 5 The General Counsel o f the FRA has daily contact with USRC and is involved in most of the substantive de­ cisions made by the corporation The Federal Railroad Administrator has perhaps weekly contact with the USRC. The other members o f the board o f directors have less frequent contact with the corporation. 87 not posed when a government employee moves “from one salaried government position to another.” Id. at 6. Thus, for example, it would be entirely permissible for an individual to work on the redevelopment of Union Station as an employee of the District of Columbia and then work on the same matter as an employee of the Department of Transportation. We believe that the nature of USRC, as the entity performing the statutory responsibilities of the Department of Transporta­ tion for the Union Station project, under the guidance of government officials and with the assistance of federal funding, suggests that the same result should be reached when an individual moves from employment with the District of Co­ lumbia to employment with USRC. In sum, we believe that the exclusively federal functions of USRC, and the sig­ nificant control over its operations exercised by the federal government, warrant the conclusion that USRC should be considered “the United States” for the pur­ poses of 18 U.S.C. § 207(a). Accordingly, the prohibitions of that section do not apply where a former employee of the District of Columbia accepts employment with USRC. M ic h a e l C a r v in Deputy Assistant Attorney General Office of Legal Counsel 88

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Indirect Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001 The Establishment Clause of the First Amendment does not necessitate that the charitable choice provisions of H.R. 7, the Community Solutions Act, require faith-based organizations receiving indirect payments of federal money to segregate such funds into an account separate from the organizations’ general operating accounts. June 22, 2001 MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT You have asked for our opinion whether the charitable choice provisions set forth in section 1994A of H.R. 7, the Community Solutions Act (“the Act”), must, consistent with the Establishment Clause, require faith-based organizations (“FBOs”) receiving indirect payments of federal money to segregate such funds into an account separate from the FBO’s general operating account. We conclude that the Establishment Clause does not require such segregation to preserve the Act’s constitutionality. The Supreme Court distinguishes, as a threshold matter, between direct and indirect aid. 1 For any given program, charitable choice allows, at the government’s option, for direct or indirect forms of funding, or both. 2 Indirect aid is where the ultimate beneficiary is given a coupon or voucher, or some other means of payment, such that he or she has the power to select from among qualified providers at which the coupon or voucher may be “redeemed” and the services rendered. In a series of cases, and in more recent commentary contrasting indirect aid with direct aid cases, the Supreme Court has consistently upheld the constitutionality of mechanisms providing for indirect means of aid distributed without regard to religion. 3 1 See, e.g., Mitchell v. Helms, 530 U.S. 793, 841-44 (2000) (O’Connor, J., concurring in the judgment). 2 Charitable choice typically provides for both direct and indirect forms of aid to FBOs. See, e.g., 42 U.S.C. § 604a(a)(1) (Supp. II 1996). This is most apparent in H.R. 7 by comparing the subparts of section 1994A(g). 3 See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing special education services to Catholic high school student not prohibited by Establishment Clause); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481 (1986) (upholding a state vocational rehabilitation grant to disabled student who elected to use the grant to obtain training as a youth pastor); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a state income tax deduction for parents paying school tuition at religious schools); see also Rosenberger v. Rector and Visitors, 515 U.S. 819, 878-79 (1995) (Souter, J., dissenting) (distinguishing cases upholding indirect funding to individuals, admitted to be the law of the Court, from direct funding to religious organizations). 127 227-329 VOL_25_PROOF.pdf 137 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 As Justice O’Connor recently noted in Mitchell v. Helms, the Supreme Court has approved the indirect payment of federal money to religious organizations for services so long as “‘[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.’” Mitchell v. Helms, 530 U.S. at 841 (O’Connor, J., concurring in judgment) (ellipses in original; citation omitted). In the quoted passage, Justice O’Connor explained why the Court declined to find a violation of the Establishment Clause in Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (holding plaintiff could use vocational training grant to become a minister), and Mueller v. Allen, 463 U.S. 388 (1983) (upholding state tax deduction for educational expenses such as parochial school tuition). Indeed, because indirect aid to an FBO is “akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that check to a religious institution,” Mitchell v. Helms, 530 U.S. at 841, such aid is permissible under the Establishment Clause and need not be segregated into a separate account. 4 SHELDON BRADSHAW Deputy Assistant Attorney General Office of Legal Counsel 4 The Child Care and Development Block Grant Program of 1990, see 42 U.S.C. §§ 9858-9858q (1994), for example, has been providing low-income parents indirect aid for child care via “certificates” redeemable at, inter alia, churches and other FBOs. The Act has never been so much as even challenged in the courts as unconstitutional. 128 227-329 VOL_25_PROOF.pdf 138 10/22/12 11:10 AM

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Indirect Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001 The Establishment Clause of the First Amendment does not necessitate that the charitable choice provisions of H.R. 7, the Community Solutions Act, require faith-based organizations receiving indirect payments of federal money to segregate such funds into an account separate from the organizations’ general operating accounts. June 22, 2001 MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT You have asked for our opinion whether the charitable choice provisions set forth in section 1994A of H.R. 7, the Community Solutions Act (“the Act”), must, consistent with the Establishment Clause, require faith-based organizations (“FBOs”) receiving indirect payments of federal money to segregate such funds into an account separate from the FBO’s general operating account. We conclude that the Establishment Clause does not require such segregation to preserve the Act’s constitutionality. The Supreme Court distinguishes, as a threshold matter, between direct and indirect aid. 1 For any given program, charitable choice allows, at the government’s option, for direct or indirect forms of funding, or both. 2 Indirect aid is where the ultimate beneficiary is given a coupon or voucher, or some other means of payment, such that he or she has the power to select from among qualified providers at which the coupon or voucher may be “redeemed” and the services rendered. In a series of cases, and in more recent commentary contrasting indirect aid with direct aid cases, the Supreme Court has consistently upheld the constitutionality of mechanisms providing for indirect means of aid distributed without regard to religion. 3 1 See, e.g., Mitchell v. Helms, 530 U.S. 793, 841-44 (2000) (O’Connor, J., concurring in the judgment). 2 Charitable choice typically provides for both direct and indirect forms of aid to FBOs. See, e.g., 42 U.S.C. § 604a(a)(1) (Supp. II 1996). This is most apparent in H.R. 7 by comparing the subparts of section 1994A(g). 3 See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing special education services to Catholic high school student not prohibited by Establishment Clause); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481 (1986) (upholding a state vocational rehabilitation grant to disabled student who elected to use the grant to obtain training as a youth pastor); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a state income tax deduction for parents paying school tuition at religious schools); see also Rosenberger v. Rector and Visitors, 515 U.S. 819, 878-79 (1995) (Souter, J., dissenting) (distinguishing cases upholding indirect funding to individuals, admitted to be the law of the Court, from direct funding to religious organizations). 127 227-329 VOL_25_PROOF.pdf 137 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 As Justice O’Connor recently noted in Mitchell v. Helms, the Supreme Court has approved the indirect payment of federal money to religious organizations for services so long as “‘[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.’” Mitchell v. Helms, 530 U.S. at 841 (O’Connor, J., concurring in judgment) (ellipses in original; citation omitted). In the quoted passage, Justice O’Connor explained why the Court declined to find a violation of the Establishment Clause in Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (holding plaintiff could use vocational training grant to become a minister), and Mueller v. Allen, 463 U.S. 388 (1983) (upholding state tax deduction for educational expenses such as parochial school tuition). Indeed, because indirect aid to an FBO is “akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that check to a religious institution,” Mitchell v. Helms, 530 U.S. at 841, such aid is permissible under the Establishment Clause and need not be segregated into a separate account. 4 SHELDON BRADSHAW Deputy Assistant Attorney General Office of Legal Counsel 4 The Child Care and Development Block Grant Program of 1990, see 42 U.S.C. §§ 9858-9858q (1994), for example, has been providing low-income parents indirect aid for child care via “certificates” redeemable at, inter alia, churches and other FBOs. The Act has never been so much as even challenged in the courts as unconstitutional. 128 227-329 VOL_25_PROOF.pdf 138 10/22/12 11:10 AM

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Indirect Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001 The Establishment Clause of the First Amendment does not necessitate that the charitable choice provisions of H.R. 7, the Community Solutions Act, require faith-based organizations receiving indirect payments of federal money to segregate such funds into an account separate from the organizations’ general operating accounts. June 22, 2001 MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT You have asked for our opinion whether the charitable choice provisions set forth in section 1994A of H.R. 7, the Community Solutions Act (“the Act”), must, consistent with the Establishment Clause, require faith-based organizations (“FBOs”) receiving indirect payments of federal money to segregate such funds into an account separate from the FBO’s general operating account. We conclude that the Establishment Clause does not require such segregation to preserve the Act’s constitutionality. The Supreme Court distinguishes, as a threshold matter, between direct and indirect aid. 1 For any given program, charitable choice allows, at the government’s option, for direct or indirect forms of funding, or both. 2 Indirect aid is where the ultimate beneficiary is given a coupon or voucher, or some other means of payment, such that he or she has the power to select from among qualified providers at which the coupon or voucher may be “redeemed” and the services rendered. In a series of cases, and in more recent commentary contrasting indirect aid with direct aid cases, the Supreme Court has consistently upheld the constitutionality of mechanisms providing for indirect means of aid distributed without regard to religion. 3 1 See, e.g., Mitchell v. Helms, 530 U.S. 793, 841-44 (2000) (O’Connor, J., concurring in the judgment). 2 Charitable choice typically provides for both direct and indirect forms of aid to FBOs. See, e.g., 42 U.S.C. § 604a(a)(1) (Supp. II 1996). This is most apparent in H.R. 7 by comparing the subparts of section 1994A(g). 3 See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing special education services to Catholic high school student not prohibited by Establishment Clause); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481 (1986) (upholding a state vocational rehabilitation grant to disabled student who elected to use the grant to obtain training as a youth pastor); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a state income tax deduction for parents paying school tuition at religious schools); see also Rosenberger v. Rector and Visitors, 515 U.S. 819, 878-79 (1995) (Souter, J., dissenting) (distinguishing cases upholding indirect funding to individuals, admitted to be the law of the Court, from direct funding to religious organizations). 127 227-329 VOL_25_PROOF.pdf 137 10/22/12 11:10 AM Opinions of the Office of Legal Counsel in Volume 25 As Justice O’Connor recently noted in Mitchell v. Helms, the Supreme Court has approved the indirect payment of federal money to religious organizations for services so long as “‘[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.’” Mitchell v. Helms, 530 U.S. at 841 (O’Connor, J., concurring in judgment) (ellipses in original; citation omitted). In the quoted passage, Justice O’Connor explained why the Court declined to find a violation of the Establishment Clause in Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (holding plaintiff could use vocational training grant to become a minister), and Mueller v. Allen, 463 U.S. 388 (1983) (upholding state tax deduction for educational expenses such as parochial school tuition). Indeed, because indirect aid to an FBO is “akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that check to a religious institution,” Mitchell v. Helms, 530 U.S. at 841, such aid is permissible under the Establishment Clause and need not be segregated into a separate account. 4 SHELDON BRADSHAW Deputy Assistant Attorney General Office of Legal Counsel 4 The Child Care and Development Block Grant Program of 1990, see 42 U.S.C. §§ 9858-9858q (1994), for example, has been providing low-income parents indirect aid for child care via “certificates” redeemable at, inter alia, churches and other FBOs. The Act has never been so much as even challenged in the courts as unconstitutional. 128 227-329 VOL_25_PROOF.pdf 138 10/22/12 11:10 AM

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Anti-Lobbying Restrictions Applicable to Community Services Administration Grantees T he anti-lobbying rider in the Community Services Administration (CSA) appropriation act is broader than the generally applicable restrictions on lobbying by executive officers, and prohibits recipients o f CSA grant funds from engaging in any activity designed to influence legislation pending before Congress, including direct contacts with Congress. Congress is under no obligation to make funds available to any agency for every authorized activity in any given fiscal year, and there should be no presumption that it has done so. T he anti-lobbying statute, 18 U.S.C. § 1913, and the general “publicity and propaganda” rider in the G eneral Government Appropriations A ct, have been narrowly construed to prohibit the use o f federal funds for “grassroots” lobbying, but not to prohibit a wide range of necessary communications betw een the Executive on the one hand, and Congress and the general public on the other. The considerations that underlie this narrow construction are irrelevant to a prohibition against lobbying by private persons receiving federal grants and contracts. Statements made by individual legislators and committees after the enactment of legisla­ tion carry little weight in statutory interpretation, and are not a sufficient basis for altering a conclusion required by the plain meaning o f the statutory language. June 17, 1981 M EM ORANDUM O PIN IO N FO R T H E CO UN SEL TO T H E D IR E C T O R , O FFIC E O F M A N A G EM EN T A N D BU DG ET On January 19, 1981, the D irector of the Community Services Administration (CSA) published in the Federal Register an interpretive ruling by the CSA General Counsel discussing the legal effect of an “anti-lobbying” rider that applies to CSA appropriations. See 46 Fed. Reg. 4919. T he history and language of the rider are set out in the m argin.1 In his ruling, the CSA General Counsel concluded that the ! The rider derives from a provision that first appeared in the FY 1979 appropriation for the D epartm ents o f Labor, Health, E ducation and Welfare, and related agencies. See Pub. L. No 95-480, § 407, 92 Stat. 1589 (1978). The provision has since been carried forward in successive public laws and resolutions applicable to those agencies. See, e.g., Pub. L. No. 96-536 [H.J. Res. 644], 94 Stat. 3166 (1980), as amended by A ct of June 5, 1981 [H.R. 3512], Pub. L. No. 97-12, 95 Stat. 14, See 127 Cong. Rec. S5796-S5807 (daily ed. June 4, 1981). The language of the n d er is as follows: No part of any appropriation contained in this A ct shall be used, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, for the preparation, distribution, o r use of any kit, pamphlet, booklet, publi­ cation, radio, television, o r film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself. No part of any appropriation contained in this Act shall be used to pay the salary or expenses of Continued 180 rider, in its application to CSA grantees, imposes anti-lobbying restric­ tions that are no more stringent than those imposed upon executive officers and employees by 18 U.S.C. §1913 2 and by the traditional “publicity and propaganda” rider contained in the Treasury, Postal Service, and General Government Appropriations A ct.3 In reliance upon that legal conclusion, the Director of CSA “waived” certain antilobbying restrictions contained in existing CSA grants. Those restric­ tions were apparently based upon an older, more stringent interpreta­ tion of the rider. You have asked whether, in the opinion of this Office, the conclusions reached by the General Counsel were legally correct. I. The CSA rider imposes two different kinds of restrictions on the use of appropriated funds. The first, set forth in the first sentence of the rider, prohibits the use of funds “for publicity and propaganda pur­ poses” or for the preparation or use of any “kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before Congress, except in presentation to the Congress itself.” This language is similar to the language of the traditional “publicity and propaganda” rider contained in the General Appropriations Act. Unlike the traditional rider, however, the CSA rider catalogs the kinds of materials and “presentations” for which appropriated funds may not be expended (kits, pamphlets, etc.), and it authorizes at least two kinds of expenditures. It expressly permits ex­ penditures for the maintenance o f “normal and recognized executiveany grant o r contract recipient or agent acting for such recipient to engage in any activity designed to influence legislation or appropriations pending before the Con­ gress. In its present form, the rider applies by its terms to all appropriations made or continued by the relevant Act, including appropriations for the Departments of Labor, Health and Human Services, Education, and the Community Services Administration, among others 2Section 1913 provides as follows: No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor o r oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction o f any bill or resolution proposing such legislation or appropriation; but thts shall not prevent officers or employees of the United States o r o f its departments or agencies from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct o f the public business Whoever, being an officer or employee o f the United States or of any department or agency thereof, violates or attempts to violate this section, shall be fined not more than $500 or imprisoned not more than one year, or both; and after notice and hearing by the superior officer vested with the power of removing him, shall be removed from - office or employment. 3See Pub. L. No. 96-74, §607, 93 Stat. 575. T he language of the traditional rider is as follows: No part of any appropriation contained in this or any other Act, or of the funds available for expenditure by any corporation or agency, shall be used for publicity or propaganda purposes,designed to support or defeat legislation pending before Con­ gress. 181 legislative relationships,” and it seems to contemplate that funds may be expended for the preparation of kits, pamphlets, and other “presenta­ tions” that are made directly to Congress itself. The second restriction is set out in the second sentence of the rider. Unlike the first, it applies only to persons w ho receive appropriated funds under government grants or contracts. The second sentence states flatly that “[n]o part of any appropriation contained in this Act shall be used to pay the salary or expenses of any grant or contract recipient or agent acting for such recipient to engage in any activity designed to influence legislation or appropriations pending before Congress.” Be­ cause this language forbids the payment of expenses for “any activity” designed to influence legislation pending before Congress, it is far broader than the language of the traditional “publicity and propaganda” rider. M oreover, because it applies expressly to grantees and contrac­ tors and makes no express provision for direct contacts with Congress, it is quite unlike the language of the “anti-lobbying” statute, 18 U.S.C. § 1913. In his interpretive ruling, the General Counsel concluded that the tw o sentences of the CSA rider should be read together. His opinion states that the two sentences impose a single restriction upon the use of federal funds, a restriction that applies equally to federal agencies and federal grantees. He concluded that for agencies and grantees alike, the rider prohibits “grassroots lobbying” and nothing more. We agree with the General Counsel’s conclusion regarding the appli­ cation of the rider to federal agencies; but for the reasons given below, we cannot agree with his conclusion regarding the application of the rider to federal grantees. II. In our view, the language of the second sentence of the rider imposes an unqualified prohibition against payment o f expenses incurred by grantees in any activity designed to influence legislation pending before Congress. The meaning of the language is quite clear when the second sentence is considered alone. The meaning is made even clearer when the second sentence is read in context with the first. The first sentence makes provision for normal and appropriate “relationships” between the Legislative and Executive Branches of government; it is conspicu­ ously silent with regard to federally financed “relationships” between Congress and federal grantees. The first sentence prohibits federal agen­ cies from expending appropriated funds only for “publicity and propa­ ganda” or for the preparation of certain kits, pamphlets, and presenta­ tions. The second sentence forbids grantees and contractors to expend appropriated funds for any activity designed to influence pending litiga­ tion. 182 We believe, in short, that these two sentences impose two different anti-lobbying restrictions: one, a traditional “publicity and propaganda” restriction applicable to officers and employees of the government; the other, an unqualified prohibition against lobbying by federal grantees. The meaning of the rider is so plain on the face o f the text that we could not accept another interpretation unless there were persuasive reasons for doing so. The General Counsel gave three reasons for interpreting the rider narrowly in its application to CSA grantees. He argued, first, that if the rider were read broadly, it would prevent CSA grantees from carrying out their contractual obligation to be advocates for the poor. He also noted that CSA itself is required by statute to “stimulate a better focusing of federal resources on behalf of the poor,” and he argued that the rider should not be read to frustrate that statutory mission. Second, he argued that 18 U.S.C. § 1913 and the General Appropriations rider have been construed narrowly and that the CSA rider should be given a similar interpretation so that the mission of CSA and the CSA grantees will not be frustrated. Finally, he noted that Senator Warren Magnuson, Chairman of the Senate Labor, Health and Human Services and Education’s Appropriation Subcommittee, stated in a letter to the Director of CSA that his subcommittee did not intend the rider to prevent CSA and its grantees from: (1) responding to any request for information from Members of Congress; (2) providing educational in­ formation to Congress and the public in general on the effects of legislative issues on individuals an d /o r communities; and (3) providing information to Congress concerning legislative issues which directly affect the continued existence of CSA or its grantees. In our opinion, the reasons given in support of the General Counsel’s interpretation neither require nor justify a narrow reading of the statu­ tory prohibition against lobbying by grantees. Our research has not uncovered any other consideration that would require us to alter our initial conclusion that the rider means what it says. We will discuss the relevant points below. Contractual and statutory obligations. The General Counsel suggested that a strict reading of the rider would prevent grantees from discharg­ ing their obligations under their grants. But federal grantees cannot be required to do what federal law prohibits. Even if we could accept the contention that existing grant provisions require CSA grantees to use appropriated funds to lobby for or against specific legislation pending before Congress,4 the existence of that “requirement” would not be a valid reason for interpreting the appropriations rider either narrowly or broadly. 4 In fact, existing CSA grants contain express anti-lobbying provisions, which were “waived” in the January 19, 1981, publication. In light of those provisions, we simply do not understand the argument that the contractual obligations of CSA grantees collided with the appropriations rider. 183 Regarding the related but somewhat different contention that the organic legislation governing CSA conflicts with the rider, tw o obser­ vations are in order. First, insofar as CSA itself is concerned, the rider expressly authorizes normal legislative-executive relationships, and it prohibits only “publicity and propaganda.” A similar prohibition applies to each agency o f the government. There is nothing in the CSA rider that prevents CSA itself from discharging its statutory mission. Second, insofar as the grantees are concerned, we have reviewed the relevant legislation carefully; 5 and it is far from clear to us that any specific congressional purpose behind that legislation would be frustrated if CSA grantees were forbidden to use federal money to lobby for or against specific measures actually pending before Congress. More im­ portantly, even if one could conclude that the grantees are authorized by the organic legislation to use federal money for lobbying purposes, Congress is under no obligation to make money available for that purpose in any given fiscal year. Indeed, the express language o f the rider suggests that Congress has expressly declined to make money available for that purpose in the current fiscal year, and there is no principle o f interpretation or construction that prevents executive offi­ cers o r the courts from giving full effect to that fiscal purpose. It is true, as the General Counsel points out, that statutes should be con­ strued harmoniously and that unnecessary conflicts should be avoided, but that principle carries little force in the appropriations context. Just as there is no presumption that the availability of funds alters substan­ tive limitations on statutory authority, see TVA v. Hill, 437 U.S. 153 (1978), there is no presumption that Congress has made funds available for every authorized purpose in any given fiscal year. See Opinion of C om ptroller General for Honorable F. James Sensenbrenner, Jr., printed in 127 Cong. Rec. H1843, 1845 (daily ed. May 5, 1981) (“An appropriation restriction may forbid the use o f funds by an agency even for some activity authorized in its organic legislation.”). Traditional interpretation o f the anti-lobbying statute and the general appropriations rider. As the General Counsel points out, the anti-lobby­ ing statute and the general “publicity and propaganda” rider have been construed to prohibit federal officers and employees from using federal funds to mount “grassroots campaigns.” W e know of no reason to conclude that the same narrow construction should be given to the language of the second sentence o f the CSA rider, which on its face imposes an unqualified prohibition against “any activity” by federal grantees designed to influence pending legislation. We have already noted the significant differences between the language of the CSA rider and the language of the other two provisions. There are more funda­ mental differences as well. 5 T he relevant statutes are codified in scattered sections o f Chapter 34 o f 42 U.S C. See, e.g., 42 U.S C. § 2790 et seq., § 2861 et seq., § 2981 et seq. 184 The Constitution contemplates that there will be an active inter­ change between Congress, the Executive Branch, and the public concerning matters of legislative interest. For that reason alone, this Department has traditionally declined to read the criminal statute and the general rider as requiring federal officers and employees to use their own funds and their own time to frame necessary communications to Congress and the public. We have taken the view that the criminal statute and the general rider impose no such requirement. They permit a wide range o f contact between the Executive and the Congress and the Executive and the public in the normal and necessary conduct of legislative business. The prudential considerations that underlie this narrow and necessary construction are largely irrelevant to prohibitions against lobbying by private persons and organizations that receive federal funds under fed­ eral grants and contracts. Although private persons and organizations have a right to petition Congress and to disseminate their views freely, they can be expected, within the framework established by the Consti­ tution, to do their lobbying at their own expense. They have no inher­ ent or implicit right to use federal funds for that purpose unless Con­ gress has given them that right. In the case of the CSA grantees and other grantees covered by the rider, Congress appears to have expressly intended to forbid the use of federal funds by grantees for lobbying purposes. Subsequent legislative history. The General Counsel declared that there is no formal legislative history that casts light on the legislative inten­ tions behind the CSA rider. We do not disagree with that conclusion; however, the General Counsel relied upon a letter addressed to the Director of CSA by Senator W arren Magnuson, in which the Senator expressed the view that his subcommittee did not intend the rider to prevent CSA grantees from engaging in certain activities. We have described the contents of that letter in some detail in the paragraphs above. When a legislative proposal is pending before Congress, the state­ ments and reports of individual legislators or legislative committees concerning the meaning or effect of the proposal are part of the legislative record; and they carry force, as sources for interpretation, if the proposal is enacted into law. Because they were before the Con­ gress and were presumably considered by Congress at the time of enactment, they are some evidence of what a majority of the Congress may have intended the proposal to accomplish. On the other hand, statements made by individual legislators and committees after enact­ ment carry little force as a legal matter, because at best they are evidence only o f what individual intentions may have been. Thus it is a traditional rule that “subsequent legislative history” is entitled to little weight in matters of statutory interpretation. See, e.g., TVA v. Hill, 185 supra; Regional Rail Reorganization A ct Cases, 419 U.S. 102, 132 (1974); Allyn v. United States, 461 F.2d 810, 811 (Ct. Cl. 1972); 2A Sutherland Statutory Construction § 48.16 (Sands ed. 1973). In accordance with that rule, even if Senator Magnuson’s statements had been made, not in a letter to the Director of CSA, but in a subsequent committee report or a subsequent congressional debate, they w ould carry little force as a matter o f interpretation and would not be a sufficient basis for altering the conclusion that seems to be required by the plain meaning of the statutory language. CSA grantees, and other grantees covered by the rider, may not use appropriated funds to engage in activities designed to influence legisla­ tion pending before Congress. T h e o d o r e B. O l s o n Assistant Attorney General Office o f Legal Counsel 186

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Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall The Ineligibility Clause of the Constitution would not bar the President from appointing Congressman Tony P. Hall as United States Representative to the United Nations Agencies for Food and Agriculture, with the rank of Ambassador. May 30, 2002 MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT You have asked for our opinion whether the Ineligibility Clause, U.S. Const. art. I, § 6, cl. 2, would bar the President from appointing Congressman Tony P. Hall as United States Representative to the United Nations Agencies for Food and Agriculture, with the rank of Ambassador. As we previously advised you orally, we believe that the Ineligibility Clause would not bar the appointment. Under the Ineligibility Clause, “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” U.S. Const. art. I, § 6, cl. 2. Congressman Hall’s current term began January 3, 2001, see U.S. Const. amend. XX, § 1; 146 Cong. Rec. D1228 (Dec. 15, 2000), and he thus cannot be appointed to an office “the Emoluments whereof” were raised after that date. 1 The office of United States Representative to the United Nations Agencies for Food and Agriculture was created under 22 U.S.C. § 287(d) (2000), a section of the United Nations Participation Act providing that the President may appoint “such . . . persons as he may deem necessary to represent the United States in organs and agencies of the United Nations.” Under 22 U.S.C. § 287(g), “[a]ll persons appointed in pursuance of authority contained in this section shall receive compensation at rates determined by the President upon the basis of duties to be performed but not in excess of rates authorized . . . for chiefs of mission, members of the Senior Foreign Service, and Foreign Service officers occupying positions of equivalent importance.” The President has delegated to the Secretary of State his authority to fix this compensation, see Memorandum for the Secretary of State, from President William J. Clinton, Re: Delegation of Authority on Rates of Compensation for U.S. Representatives to the United Nations, 62 Fed. Reg. 18,261 (Apr. 15, 1997), and the Secretary of State in turn has delegated such “manage- 1 We do not address here whether a rollback of a salary increase can satisfy the Ineligibility Clause. Compare Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. 286, 289-90 (1979) (accepting the validity of such rollbacks), with Memorandum for the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting Congressman to Assume a Vacancy on the Supreme Court (Aug. 24, 1987) (“1987 Opinion”) (rejecting the validity of such rollbacks). 40 227-329 VOL_26_PROOF.pdf 50 10/22/12 11:13 AM Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall ment-related functions” to the Under Secretary of State for Management, see Delegation of Authority No. 198 (Sept. 16, 1992). The last occupant of the office was former Senator George S. McGovern, who left the position on September 27, 2001. 2 At the beginning of Senator McGovern’s service, the responsible official at the State Department assessed the “duties to be performed” by Senator McGovern and determined that he should receive the pay of a “Minister-Counselor” in the Senior Foreign Service compensated at a rate equivalent to Level 5 of the Executive Schedule (“FE-MC 5,” which is equivalent to “ES 5”). See Exec. Order No. 12293, § 4, 3 C.F.R. § 137 (1982), reprinted in 22 U.S.C. § 3901 note (2000). On two recent occasions, Presidents have exercised their authority under 5 U.S.C. § 5382 to raise the salary specified for Level 5 of the Executive Schedule, to which the FE-MC 5 pay is tied. The first increase was ordered December 23, 2000, and took effect January 14, 2001, Exec. Order No. 13182, 3 C.F.R. § 330 (2001); the second was ordered December 28, 2001, and took effect January 13, 2002, Exec. Order No. 13249, 3 C.F.R. § 832 (2002). We will assume that one or both of these increases should be deemed to have occurred during the time for which Congressman Hall was elected. 3 If the “Emoluments” of the office of United States Representative to the United Nations Agencies for Food and Agriculture include an FE-MC 5 salary, then that office is one “the Emoluments whereof . . . have been encreased” during the time for which Congressman Hall was elected. We do not believe, however, that the FE-MC 5 pay or any other salary can properly be seen as the emoluments of this office. On the contrary, the office itself has no fixed emoluments. The President or his delegate is free to set any level of pay he deems suitable for the duties he expects the particular appointee to perform, as long as the pay does not exceed the statutory ceilings. Therefore, if appointed, Congressman Hall will not necessarily succeed to the same compensation that Senator McGovern was receiving. Indeed, the instrument that directed how much Senator McGovern was to be paid was a “Notification of Personnel Action,” which was personal to him, rather than an order referring generally to the pay of the office. Section 287(g) calls for the President or his delegate to set the pay of 2 As we understand the facts, only one other person—Millicent Fenwick, during the 1980s—has held the position of United States Representative to the United Nations Agencies for Food and Agriculture, with the Senate-confirmed rank of Ambassador. We understand that the paperwork showing how her pay was fixed no longer exists. For the facts set out in this memorandum, we rely on the Department of State. 3 Arguably, the relevant date for the first increase was the date on which the President issued his order, which preceded Congressman Hall’s current term. But cf. Member of Congress—Appointment to Civil Office Prior to Pay Increase, 42 Op. Att’y Gen. 381 (1969) (under a statute providing for an effective date after a report to Congress and a waiting period to allow congressional action, the relevant date was the date on which the increase took effect). Moreover, because the office was vacant at the time of the second increase and because (as explained below) the pay of the office must be set each time a new appointee assumes the office, arguably the pay of the office was not tied to the FE-MC 5 rate, or any other rate, at the time of the second increase. 41 227-329 VOL_26_PROOF.pdf 51 10/22/12 11:13 AM Opinions of the Office of Legal Counsel in Volume 26 “[a]ll persons appointed in pursuance of authority contained in” section 287, and this compensation pertains to the “person[],” not to the office. This is not a case in which the President raised the pay for a class of offices, in which the office in question was included. Cf. Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. at 286-87 (judicial salaries); 1987 Opinion, supra note 1, at 1 n.1 (same); Member of Congress—Appointment to Civil Office Prior to Pay Increase, 42 Op. Att’y Gen. 381 (1969) (salaries of cabinet officers). Nor even is it a case in which the statute calls on the President to set the salary for a specified office. Cf. Memorandum for the Files, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Appointment of Congressman to the Office of Director of the Office of Economic Opportunity at 1 (Apr. 14, 1969) (“1969 Memorandum”) (third attachment to Letter for Edward L. Morgan, Deputy Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel (Apr. 14, 1969)) (the statute required the President to fix the salary of the Director). Instead, the President is to fix the salary of a “person[]” appointed to an office that the President largely defines. Under the statute here, the President or his delegate is to set a salary each time a person is appointed. To be sure, it would not be an unnatural reading of the Ineligibility Clause if the salary paid to Senator McGovern were considered the emoluments of the office of United States Representative, within the meaning of the Clause. That salary was, after all, actually paid for Senator McGovern’s work in the office. Nevertheless, we believe that, on the better view of the Ineligibility Clause, this salary does not constitute the emoluments of the office because the office does not continue to carry that salary after Senator McGovern’s resignation. The President or his delegate will have to act affirmatively to set a salary when Senator McGovern’s successor is appointed and will have the discretion to set the salary for the next occupant of the office at any rate that does not exceed the salary cap. 4 The Ineligibility Clause was designed to limit the danger that offices might be created or their emoluments increased “in order to gratify some members” of Congress, 1 The Records of the Federal Convention of 1787, at 380 (Max Farrand ed., rev. ed. 1966) (statement of James Madison), but this danger, insofar as it arises from action taken with respect to an office before a member’s appointment, exists only if the prior action would carry over to the office when the member assumes it. Here, although prior action raising Senator McGovern’s salary arguably might 4 In our 1969 Memorandum, the President was to fix the compensation of the Director of the Office of Economic Opportunity (“OEO”) at a level not exceeding that for the Director of the Bureau of the Budget. The Budget Director’s salary had been raised during the time for which a prospective Director of OEO had been elected to Congress, and the 1969 Memorandum found that if the Director of the OEO received a salary at the new ceiling, the Ineligibility Clause would be violated. Id. at 1-2. We take it, however, that once the President had set a salary for the office of OEO Director, that salary would have continued to apply to successors in the office, unless the President acted to change his earlier decision. 42 227-329 VOL_26_PROOF.pdf 52 10/22/12 11:13 AM Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall lead to some expectations about the salary to be paid to Congressman Hall, see 119 Cong. Rec. 38,331 (1973) (letter of then-Professor Stephen G. Breyer, arguing that past salary increases, even if not given to an appointee, make future increases likely), this expectation is, in the end, a matter of speculation. Until the President acts or his delegate acts, there are no emoluments attached to the office in question. JAY S. BYBEE Assistant Attorney General Office of Legal Counsel 43 227-329 VOL_26_PROOF.pdf 53 10/22/12 11:13 AM

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Construction o f § 406 of the Federal Employees Pay Comparability Act of 1990 Section 4 06 o f the Federal E m ployees Pay C om parability Act o f 1990 does not extend the authority to m ake bon u s paym ents to em ployees at the N ew York Field D ivision o f the Federal Bureau o f In­ vestigation pursuant to section 601 of the Intelligence A uthorization Act for fiscal years 1989 and 1990 b ey o n d the ex p iration date of the dem onstration project established by section 601. August 23, 1993 M O p in io n em orandum fo r th e A s s is t a n t D i r e c t o r , L e g a l C o u n s e l F ederal B u r ea u of I n v e s t ig a t io n This m em orandum responds to your request for our opinion whether § 406 of the Federal Em ployees Pay Comparability Act of 1990 (“FEPCA”), 104 Stat. 1427, 1467,1 preserves extraordinary benefits payable under § 601 o f the Intelli­ gence A uthorization Act, Fiscal Y ear 1989, Pub. L. No. 100-453, 102 Stat. 1904, 1911 (1988), as am ended by the Intelligence Authorization Act, Fiscal Year 1990, Pub. L. No. 101-193, § 601, 103 Stat. 1701, 1710 (1989), even after expiration of § 601 ’s paym ent authority. We conclude that § 406 does not preserve the § 601 benefits beyond the expiration of the latter provision. Section 601 establishes a demonstration project that attempts to improve re­ cruitm ent and retention at the New Y ork Field Division (“NYFD”) of the Federal Bureau of Investigation (“FBI”) by increasing pay. See H.R. Rep. No. 100-591(1), at 11-12 (1988), reprinted in 1988 U .S.C.C.A.N. 2469, 2479-80. Pursuant to § 601, any FBI em ployee transferred to the NYFD receives a lump sum payment of up to $20,000, conditioned upon the em ployee’s agreement to serve at least three years in that office. § 601(a)(1). In addition, all employees in the NYFD receive periodic bonus paym ents o f between 20 and 25% o f their basic pay for the period covered by the bonus. § 601(a)(2). Section 601(b) provides that these benefits will term inate after five years. We understand from you that the program will end on Septem ber 30, 1993. FEPCA institutes a system of pay adjustments for general schedule employees throughout the Federal government, including locality pay to accommodate the higher cost o f living in certain areas. Under FEPCA, special agents in the NYFD currently receive a 16% increase over base pay to account for New Y ork’s higher cost o f living. Sim ilarly, support staff who receive pay under the general schedule 1 FEPCA was enacted as § 529 of the Treasury, Postal Service and General Government Appropriations Act, 1991, Pub L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions o f FEPCA in this memorandum will cite the internal section num bers and corresponding pages in the statutes at large. 34 Construction o f § 406 o f the F E P C A ct o f 1990 receive an 8% increase. Support staff who receive pay under the federal wage system do not receive any increase. See FEPCA §§ 101, 404, 104 Stat. at 1429-30, 1466; Exec. Order No. 12786, Schedule 9, reprinted in 5 U.S.C. § 5332 note (Supp. Ill 1991). Thus, § 601 and FEPCA each provide extra pay for NYFD employees (except for wage employees who receive benefits under § 601 but not FEPCA). F E P C A ’s § 406, however, instructs the Office of Personnel Management (“O PM ”) to coordi­ nate the two programs to ensure that their payments are not cumulated: Notwithstanding [§601], as amended, the Office of Personnel M anagement shall reduce the rate of periodic payments under such section as the provisions o f this Act [FEPCA] are implemented: Provided, That no such reduction results in a reduction of the total pay for any employee o f the New York Field Division of the Fed­ eral Bureau of Investigation. Notwithstanding [§ 601], the Office of Personnel M anagement may make such periodic payments inappli­ cable to employees newly appointed to, or transferred to, the New York Field Division on or after January 1, 1992. The main clause in the first sentence of § 406 clearly does not authorize a con­ tinuation of § 601 pay beyond the life of the demonstration project. On the con­ trary, it expressly directs OPM to reduce § 601 payments to NYFD employees as FEPCA is implemented. The second sentence of § 406 also contemplates the cur­ tailing of § 601; it instructs that employees hired after January 1, 1992, need not receive any § 601 benefits. Notwithstanding this general thrust o f § 406, it has been suggested that the pro­ viso in the first sentence might be intended as independent authority to “grandfather” current NYFD employees with continued extra pay at the § 601 level. The suggestion is that the proviso forbids any reduction in the total pay o f NYFD employees as a result of a reduction in § 601 benefits. Since the term ina­ tion of § 601 benefits will cause a decrease in the pay of NYFD em ployees (because FEPC A ’s benefits are lower and also do not extend to wage employees), it is urged that the proviso would prevent any reduction in pay by authorizing con­ tinued pay at the § 601 level. This suggestion misconstrues the purpose o f the proviso. As indicated above, the main clause o f § 406 directs OPM to reduce § 601 payments in response to FEPCA. That clause, however, does not specify by how much the payments are to be reduced. It is the proviso that limits O PM ’s discretion in this regard. T he pro­ viso precludes any reduction of § 601 benefits that “results in a reduction o f the total pay for any employee of the [NYFD].” In effect, this means that OPM may not reduce § 601 benefits by more than one dollar for every dollar introduced un­ der FEPCA; if it did, an em ployee’s total pay would be reduced, in violation o f the 35 Opinions o f th e Office o f L eg a l Counsel proviso. Thus, for each reduction in § 601 paym ents implemented pursuant to the main clause o f § 406, the proviso caps the reduction at the amount of FEPCA dol­ lars that the em ployee receives, which prevents any net loss of pay. It m ust be understood that the proviso’s protection applies only with respect to O PM ’s reduction o f § 601 benefits pursuant to § 406. This much is established by the phrase, “no such reduction,” w hich unmistakably links the proviso’s operation with the preceding clause. See also 2A Norman J. Singer, Sutherland Statutory Construction §§ 47.08-.09 (5th ed. 1992) (in general, a proviso should be strictly construed to relate to the enactment o f which it is part). In this case, the reduction o f pay will occur as a result of the winding down o f § 601 ’s internal clock, and not pursuant to § 406. Thus, the proviso will not be triggered. Accordingly, § 406 cannot be said to authorize continued extra pay at the § 601 rate.2 W ALTER DELLINGER A cting A ssistant Attorney General Office o f Legal Counsel 2 We can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest that § 406 was intended to continue § 601 benefits beyond their natural span. 36

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Construction o f § 406 of the Federal Employees Pay Comparability Act of 1990 Section 4 06 o f the Federal E m ployees Pay C om parability Act o f 1990 does not extend the authority to m ake bon u s paym ents to em ployees at the N ew York Field D ivision o f the Federal Bureau o f In­ vestigation pursuant to section 601 of the Intelligence A uthorization Act for fiscal years 1989 and 1990 b ey o n d the ex p iration date of the dem onstration project established by section 601. August 23, 1993 M O p in io n em orandum fo r th e A s s is t a n t D i r e c t o r , L e g a l C o u n s e l F ederal B u r ea u of I n v e s t ig a t io n This m em orandum responds to your request for our opinion whether § 406 of the Federal Em ployees Pay Comparability Act of 1990 (“FEPCA”), 104 Stat. 1427, 1467,1 preserves extraordinary benefits payable under § 601 o f the Intelli­ gence A uthorization Act, Fiscal Y ear 1989, Pub. L. No. 100-453, 102 Stat. 1904, 1911 (1988), as am ended by the Intelligence Authorization Act, Fiscal Year 1990, Pub. L. No. 101-193, § 601, 103 Stat. 1701, 1710 (1989), even after expiration of § 601 ’s paym ent authority. We conclude that § 406 does not preserve the § 601 benefits beyond the expiration of the latter provision. Section 601 establishes a demonstration project that attempts to improve re­ cruitm ent and retention at the New Y ork Field Division (“NYFD”) of the Federal Bureau of Investigation (“FBI”) by increasing pay. See H.R. Rep. No. 100-591(1), at 11-12 (1988), reprinted in 1988 U .S.C.C.A.N. 2469, 2479-80. Pursuant to § 601, any FBI em ployee transferred to the NYFD receives a lump sum payment of up to $20,000, conditioned upon the em ployee’s agreement to serve at least three years in that office. § 601(a)(1). In addition, all employees in the NYFD receive periodic bonus paym ents o f between 20 and 25% o f their basic pay for the period covered by the bonus. § 601(a)(2). Section 601(b) provides that these benefits will term inate after five years. We understand from you that the program will end on Septem ber 30, 1993. FEPCA institutes a system of pay adjustments for general schedule employees throughout the Federal government, including locality pay to accommodate the higher cost o f living in certain areas. Under FEPCA, special agents in the NYFD currently receive a 16% increase over base pay to account for New Y ork’s higher cost o f living. Sim ilarly, support staff who receive pay under the general schedule 1 FEPCA was enacted as § 529 of the Treasury, Postal Service and General Government Appropriations Act, 1991, Pub L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions o f FEPCA in this memorandum will cite the internal section num bers and corresponding pages in the statutes at large. 34 Construction o f § 406 o f the F E P C A ct o f 1990 receive an 8% increase. Support staff who receive pay under the federal wage system do not receive any increase. See FEPCA §§ 101, 404, 104 Stat. at 1429-30, 1466; Exec. Order No. 12786, Schedule 9, reprinted in 5 U.S.C. § 5332 note (Supp. Ill 1991). Thus, § 601 and FEPCA each provide extra pay for NYFD employees (except for wage employees who receive benefits under § 601 but not FEPCA). F E P C A ’s § 406, however, instructs the Office of Personnel Management (“O PM ”) to coordi­ nate the two programs to ensure that their payments are not cumulated: Notwithstanding [§601], as amended, the Office of Personnel M anagement shall reduce the rate of periodic payments under such section as the provisions o f this Act [FEPCA] are implemented: Provided, That no such reduction results in a reduction of the total pay for any employee o f the New York Field Division of the Fed­ eral Bureau of Investigation. Notwithstanding [§ 601], the Office of Personnel M anagement may make such periodic payments inappli­ cable to employees newly appointed to, or transferred to, the New York Field Division on or after January 1, 1992. The main clause in the first sentence of § 406 clearly does not authorize a con­ tinuation of § 601 pay beyond the life of the demonstration project. On the con­ trary, it expressly directs OPM to reduce § 601 payments to NYFD employees as FEPCA is implemented. The second sentence of § 406 also contemplates the cur­ tailing of § 601; it instructs that employees hired after January 1, 1992, need not receive any § 601 benefits. Notwithstanding this general thrust o f § 406, it has been suggested that the pro­ viso in the first sentence might be intended as independent authority to “grandfather” current NYFD employees with continued extra pay at the § 601 level. The suggestion is that the proviso forbids any reduction in the total pay o f NYFD employees as a result of a reduction in § 601 benefits. Since the term ina­ tion of § 601 benefits will cause a decrease in the pay of NYFD em ployees (because FEPC A ’s benefits are lower and also do not extend to wage employees), it is urged that the proviso would prevent any reduction in pay by authorizing con­ tinued pay at the § 601 level. This suggestion misconstrues the purpose o f the proviso. As indicated above, the main clause o f § 406 directs OPM to reduce § 601 payments in response to FEPCA. That clause, however, does not specify by how much the payments are to be reduced. It is the proviso that limits O PM ’s discretion in this regard. T he pro­ viso precludes any reduction of § 601 benefits that “results in a reduction o f the total pay for any employee of the [NYFD].” In effect, this means that OPM may not reduce § 601 benefits by more than one dollar for every dollar introduced un­ der FEPCA; if it did, an em ployee’s total pay would be reduced, in violation o f the 35 Opinions o f th e Office o f L eg a l Counsel proviso. Thus, for each reduction in § 601 paym ents implemented pursuant to the main clause o f § 406, the proviso caps the reduction at the amount of FEPCA dol­ lars that the em ployee receives, which prevents any net loss of pay. It m ust be understood that the proviso’s protection applies only with respect to O PM ’s reduction o f § 601 benefits pursuant to § 406. This much is established by the phrase, “no such reduction,” w hich unmistakably links the proviso’s operation with the preceding clause. See also 2A Norman J. Singer, Sutherland Statutory Construction §§ 47.08-.09 (5th ed. 1992) (in general, a proviso should be strictly construed to relate to the enactment o f which it is part). In this case, the reduction o f pay will occur as a result of the winding down o f § 601 ’s internal clock, and not pursuant to § 406. Thus, the proviso will not be triggered. Accordingly, § 406 cannot be said to authorize continued extra pay at the § 601 rate.2 W ALTER DELLINGER A cting A ssistant Attorney General Office o f Legal Counsel 2 We can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest that § 406 was intended to continue § 601 benefits beyond their natural span. 36

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Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges Section 458 o f title 28 does not apply to presidential appointments o f judges to the federal judiciary. December 18, 1995 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t On April 25, 1995, President Clinton nominated Mr. William A. Fletcher to be a judge on the United States Court of Appeals for the Ninth Circuit. See 141 Cong. Rec. 11,243 (1995). While Mr. Fletcher’s nomination has been pending before the United States Senate, questions have arisen as to whether his appoint­ ment would violate 28 U.S.C. § 458 because Mr. Fletcher’s mother, the Honorable Betty B. Fletcher, has served as a judge on the same court since her appointment in 1979. Section 458 of title 28 provides as follows: “ No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge o f such court.” We have previously opined that 28 U.S.C. §458 does not apply to presidential appointments of judges to the federal judiciary. See Memorandum for Eleanor D. Acheson, Assistant Attorney General, Office of Policy Development, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Applicability o f 28 U.S.C. § 458 to Presidential Appointments o f Federal Judges (Mar. 13, 1995). In light o f subsequent questions, you have asked whether we adhere to that position. For the reasons that follow, we do. A Two bedrock principles of statutory construction guide our analysis. First, “ we start, as we must, with the language of the statute.” Bailey v. United States, 516 U.S. 137, 144 (1995). Second, “ the meaning of statutory language, plain or not, depends on context.” 1 Id. at 145. In this case, the particularly relevant constitu­ ents o f context upon which statutory meaning depends are the constitutional framework within which all statutes are drafted and enacted, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (stating principle that statutes be read to protect “ the usual constitutional balance” of power), the statutory language taken as a whole, see, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (stating 1 As Learned Hand explained, “ words are n o t pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning o f each interpenetrate the other, but all in their aggregate take their [meaning] from the setting in which they are used.” NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941); see also King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (quoting Federbush); Shell Oil Co. v. Iowa Dept, o f Revenue, 488 U.S. 19, 25 n.6 (1988) (same). 350 Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges the “ cardinal rule” that a “ statute is to be read as a whole” ), and the amendment history of the statute, see, e.g., Bailey, 516 U.S. at 144 (taking account of amend­ ment history of 18 U.S.C. § 924(c)(1) to determine the meaning of the word “ use” ). Based on our review, we conclude that the plain meaning o f the statute precludes its application to presidential appointments to the federal judiciary. We begin, as indicated, with the language of the statute. The current language of §458 was adopted in 1911,2 amending a statute originally enacted in 1887.3 Quoting the language again, §458 in its current form provides that: “ No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to any justice or judge of such court.” The statute does not by its express terms apply to the Presi­ dent, nor does it expressly ijame judgeships as one of the offices to which a related person may not be appointed. We believe that the inapplicability of this provision to presidential appointments of federal judges is conclusively established by the text of this provision, the history of its amendment, and the text of the Act of 1911 taken as a whole. We elaborate on these reasons in Parts II and III of this memorandum, which to a considerable degree recapitulate the analysis contained in our earlier memorandum. Before revisiting these points, however, in this part we analyze a feature of the constitutional framework within which statutes must be read that, in our view, also dictates the conclusion that §458 does not apply to presidential appointments of federal judges, even if the text and its textual his­ tory did not conclusively establish the point. Any argument that §458 does apply to presidential appointments of federal judges depends entirely upon the fact that, while the statute refers to positions to which related persons may not be appointed, it makes no mention at all of the appointing authority, worded as it is in the passive voice. In this context, however, this silence must lead to just the opposite conclusion, because of the well-settled principle that statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). We can refer to this principle as a clear statement rule, one that is very well-established and that dic­ tates the plain meaning of § 458. Then-Assistant Attorney General William H. Rehnquist articulated this principle without limiting it to cases in which application of the statute would raise a con­ stitutional question, opining that statutes “ are construed not to include the Presi­ dent unless there is a specific indication that Congress intended to cover the Chief Executive.” Memorandum for Egil Krogh, Staff Assistant to the Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Closing o f Government Offices in Memory o f Former President 2 Act o f Mar. 3, 1911, ch. 231, §297, 36 Stat. 1087, 1168 ("A c t o f 1911” ). 3 Act o f Mar. 3, 1887, ch. 373, §7 , 24 Stat. 552, 555. 351 Opinions o f the Office o f Legal Counsel in Volume 19 Eisenhower at 3 (Apr. 1, 1969) ( “ Rehnquist Memorandum” ). Even if this unquali­ fied statement o f the principle is overly broad, the narrower formulation given above clearly covers §458, because its application to presidential appointments to the federal judiciary would raise serious constitutional questions regarding the President’s authority under the Appointments Clause, U.S. Const, art. II, § 2 , cl. 2, as we explain below. Therefore, under the precedents of the Supreme Court as well as of the Department o f Justice, §458 may not be read as applying to presidential appointments. The principle that general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the Presi­ dent’s constitutional role has two sources. First, it is a long-recognized “ cardinal principle” o f statutory interpretation that statutes be construed to avoid raising serious constitutional questions. See, e.g., Crowell v; Benson, 285 U.S. 22 (1932). This canon of statutory construction is a cornerstone of judicial restraint in that it ‘ ‘not only reflects the prudential concern that constitutional issues not be need­ lessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). The canon is equally applicable to executive branch interpretations. Appropriations Limitation fo r Rules Vetoed by Congress, 4B Op. O.L.C. 731, 732 n.3 (1980). The second source is the constitutional principle o f separation of powers. The fundamental device by which the framers sought to prevent tyranny was the divi­ sion of power to prevent an excessive accumulation in any single repository. Thus, the Constitution divides power between the federal and the state governments as well as among the federal government’s three coordinate and independent branches. See Gregory, 501 U.S. at 458. The clear statement rule exists in order to protect “ th[is] ‘usual constitutional balance’ ” of power. See id. at 460 (quoting Will v. Michigan Dept, of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985))), Franklin, 505 U.S. at 801 (“ requiring] an express statement by Congress before assuming it intended” to subject presidential action to judicial review); id. (“ As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements.” ). Given the central position that the doctrines of federalism and separation of powers occupy in the Constitution’s design, this rule also serves to “ assure[] that the legislature has in fact faced, and intended to bring into issue, the critical matters” of the balance of power among the three branches of the federal government, in the context of separation of powers, and between the federal and state governments, in the context of fed­ eralism. See Gregory, 501 U.S. at 461; United States v. Bass, 404 U.S. 336, 349 (1971). This clear statement rule has been applied frequently by the Supreme Court as well as the executive branch with respect to statutes that might otherwise be 352 . Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges susceptible of an application that would affect the President’s constitutional prerogatives, were one to ignore the constitutional context. For instance, in Franklin the Court was called upon to determine whether the Administrative Procedure Act (“ APA” ), 5 U.S.C §§701-706, authorized “ abuse of discretion” review of final actions by the President. The APA authorizes review of final actions by “ agencies,” which it defines as “ each authority of the Government of the United States.” 5 U.S.C. § 701(b)(1). From this definition, the APA expressly exempts Congress, the courts, the territories, and the District of Columbia government— but not the President. Even though the statute defined agency in a way that could include the President and did not list the President among the express exceptions to the APA, Justice O’Connor wrote for the Court: [t]he President is not [expressly] excluded from the APA’s purview, but he is not explicitly included, either. Out of respect for the sepa­ ration of powers and the unique constitutional position of the Presi­ dent, we find that textual silence is not enough to subject the Presi­ dent to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion. 505 U.S. at 800-01. To amplify, she continued, “ [a]s the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements.” Id. at 801. If anything, the case for reading the APA provision as applying to the President was stronger than is the case with respect to §458, because the APA contains a list of express exceptions to its broad coverage and that list does not include the President. One might have con­ tended that the omission of the President from a list o f persons excluded is suffi­ ciently clear evidence of a congressional decision to include him within the reach of the APA to alter the otherwise applicable rule of constitutional context. To the contrary, however, the Court affirmed the principle that the inclusion of the President must be express. In a case that is closely analogous and that involves the President’s appointment power, the Supreme Court held that the Federal Advisory Committee Act (“ FACA” ), 5 U.S.C. app. §2, does not apply to the judicial recommendation panels o f the American Bar Association because interpreting the statute as applying to them would raise serious constitutional questions relating to the Presi­ dent’s constitutional authority to appoint federal judges. See Public Citizen v. United States D ep’t o f Justice, 491 U.S. 440 (1989). The FACA imposes open meeting and reporting requirements on advisory committees, which it defines to be any committee or similar group that is “ utilized by one or more agencies, 353 Opinions o f the Office o f Legal Counsel in Volume 19 in the interest o f obtaining advice or recommendations for the President.” 5 U.S.C. app. § 3(2)(c). Two public interest groups, Public Citizen and the Wash­ ington Legal Foundation, sought to have FACA applied to the ABA judicial screening committees. The Court unanimously rejected the public interest groups’ argument. The majority ruled that while a “ straightforward reading,” Public Cit­ izen, 491 U.S. at 453, o f FACA would seem to require its application to the ABA committee, the “ cardinal principle” o f statutory interpretation that a statute be interpreted to avoid serious constitutional question drove the majority to interpret FACA as not applying to the ABA committee. Id. at 465-67. Notably, the majority stated, “ [o]ur reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government,” and “ [t]hat construing FACA to apply to the Justice Department’s consultations with the ABA Committee would present formidable constitutional difficulties is undeniable.” 4 Id. at 466. A recent Supreme Court case that applied the clear statement rule in protecting the constitutional separation of powers is Sale v. Haitian Centers Council, 509 U.S. 155 (1993). This case dealt with the extraterritorial application of the Refugee Act.5 Prior to 1980, the act provided that the Attorney General was “ authorized to withhold deportation of any alien within the United States” who was a refugee.6 In 1980, the statute was amended to delete the “ within the United States” lan­ guage and to make it mandatory that the Attorney General not deport the refugee.7 The petitioners, an organization advocating on behalf of Haitian refugees, plau­ sibly argued that, by deleting “ within the United States,” Congress plainly meant to give the act extraterritorial application. See id. at 170. The Court rejected this argument, holding that “ Acts o f Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has spe­ cial force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility.” Id. at 188.8 Sale is but another example o f the clear statement principle: Statutes will be read to exclude what they do not explicitly include when the inclusionary reading would involve a possible conflict with the President’s unique responsibilities, so as potentially to upset the constitutional balance of powers. The President’s con­ stitutional appointment power, expressly assigned to him and him alone in Article II, is similarly a unique responsibility of the President, one that has been recently 4 The three concurring justices reached the merits and found that application o f the FACA would violate the Appointments Clause (as opposed to raising a serious question). 491 U.S. at 482-89 (Kennedy, J., concurring). ’ Refugee Act o f 1980, Pub. L. No. 9 6 -2 1 2 ,9 4 Stat. 102, 107. 6 Im m igration and N ationality Act of 1952, Pub. L. No. 82-414, §243(h), 66 Stat. 163, 214 (1952) (emphasis added). 7 Pub. L. No. 96 -2 1 2 , §203(e), 94 Stat. at 107. 8 To the sam e effect, see American Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989). 354 Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges termed a “ central feature” of the President’s constitutional role under Article II. Freytag v. Commissioner, 501 U.S. 868, 902 (1991) (Scalia, J., concurring). In addition to the numerous Supreme Court precedents,9 this Department has frequently applied the clear statement rule in the context of the separation of powers between the executive and legislative branches. For example, we applied this rule to a closely analogous question. We were asked whether the Age Discrimination in Employment Act, 29 U.S.C. §§621-634 (“ ADEA” ), prohibits the President from considering the age of judicial candidates when determining whom to nominate for federal judgeships. See Judges— Appointment— Age Factor, 3 Op. O.L.C. 388 (1979). We concluded that the ADEA should not be read to apply to the presidential appointment of federal judges: The power to appoint Federal judges, who hold office on good behavior, is by tradition and design one of the most significant powers given by the Constitution to the President. It provides one of the few administrative mechanisms through which the President can exert a long-term influence over the development and adminis­ tration of law in the courts. The President’s present power to exert that influence to the fullest by preferring candidates for appointment who are likely to have long, rather than short, careers on the bench is therefore a matter of constitutional significance. Whether Con­ gress could deny the President that power by requiring him to dis­ regard utterly the age of candidates for appointment has never been considered by the courts, but because of the gravity of the constitu­ tional questions it raises, we would be most reluctant to construe any statute as an attempt to regulate the President’s choice in that way, absent a very clear indication in the [ADEA]. Id. at 389. In another important instance, Congress sought to apply the criminal contempt of Congress statute against the administrator of the Environmental Protection Agency when she asserted a claim of executive privilege on behalf of the Presi­ dent. That statute has a broad formulation that is similar to the formulation of §458. Specifically, it applies to “ [e]very person who ha[s] been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers.” 2 U.S.C. § 192. 9 The foregoing discussion analyzes only a sample o f these precedents. Nixon v. Fitzgerald , 457 U.S. 731 (1982), is yet another such example. A former executive branch employee brought a variety o f claims against former President Nixon arising from the em ployee's termination. The Court held that the President was immune from suit because Congress had failed to create a cause o f action expressly against the President o f the United States, stating 44[w]e consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition o f the separation o f powers and supported by our history.” Id. at 749; see also id. at 748 & n.27. Other examples include United States ex rel. French v Weeks, 259 U.S. 326, 332 (1922), and Tenney v. Brandhove, 341 U.S. 367, 376(1951). 355 Opinions o f the Office o f Legal Counsel in Volume 19 We concluded that, despite the broad language, the criminal contempt of Con­ gress statute does not apply to the President or presidential subordinates who assert executive privilege. See Prosecution fo r Contempt o f Congress o f an Executive Branch Official Who Has Asserted a Claim o f Executive Privilege, 8 Op. O.L.C. 101 (1984). First, we examined the legislative history o f the contempt statute and determined that nothing in that history expressed an intent to apply the statute in the context of assertions of executive privilege. Id. at 129-32. We then cited the general rule that statutes are to be construed to avoid serious constitutional questions and further elaborated that, “ [w]hen a possible conflict with the Presi­ dent’s constitutional prerogatives is involved, the courts are even more careful to construe statutes to avoid a constitutional confrontation.” Id. at 132. We then discussed how application of the contempt statute against an assertion of executive privilege would seriously disrupt the balance between the President and Congress. Because Congress had no “ compelling need” to create this disruption, “ the con­ stitutionally mandated separation of powers requires the statute to be interpreted so as not to apply to Presidential assertions o f executive privilege.” Id. at 140. Then-Assistant Attorney General William Barr opined that the Anti-Lobbying Act, 18 U.S.C. §1913, does not apply fully against the President. See Constraints Imposed by 18 U.S.C. §1913 on Lobbying Efforts, 13 Op. O.L.C. 300, 304-06 (1989). The Anti-Lobbying Act prohibits any appropriated funds from being “ used directly or indirectly to pay for any personal service, advertisement, telegram, tele­ phone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress.” 18 U.S.C. § 1913. The statute provided an exception for communications by executive branch officers and employees if the communication was made pursuant to a request by a member of Congress or was a request to Congress for legislation or appropriations. Assist­ ant Attorney General Barr concluded that applying the Act as broadly as its terms might otherwise allow would raise serious constitutional questions as an infringe­ ment of the President’s Recommendations Clause power. It is also the long-standing position of the Department of Justice that 18 U.S.C §208 does not apply to the President. That statute prohibits any “ officer or employee of the executive branch” from “ participat[ing] personally and substan­ tially” in any particular matter in which he or she has a personal financial interest. Id. In the leading opinion on the matter, then-Deputy Attorney General Laurence Silberman first determined that the legislative history disclosed no intention to cover the President and doing so would raise “ [s]ome doubt . . . as to the con­ stitutionality’ ’ of the statute, because the effect o f applying the statute to the Presi­ dent would be to impose a qualification on his serving as President. See Memo­ randum for Richard T. Burress, Office of the President, from Laurence H. Silber­ man, Deputy Attorney General, Re: Conflict o f Interest Problems Arising out o f the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974). 356 Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges In the Rehnquist Memorandum, we considered a statute the text of which is similar to §458. 5 U.S.C. §6105 provides that, “ [a]n Executive department may not be closed as a mark to the memory of a deceased former official of the United States.” Then-Assistant Attorney General William Rehnquist first reviewed the legislative history and determined that there was nothing to indicate that Congress meant to prohibit the President from closing a department as a mark to the memory of a deceased former official and that instead the purpose of the act was to prevent department heads from closing their departments. He then noted the general rule that statutes “ are construed not to include the President unless there is a specific indication that Congress intended to cover the Chief Executive.” Rehnquist Memorandum at 3. In summary, there are numerous precedents of the Supreme Court as well as of the Department of Justice 10 holding that a statute that does not by its express terms apply to the President may not be applied to the President if doing so would raise a serious question under the separation of powers.11 We believe there to be no dispute that such a serious question would be raised were §458 read to apply to presidential appointments to the federal judiciary. In the next section we amplify on the reasons for that conclusion. B Congressional attempts to limit the class of persons from whom the President may appoint the highest officers of the government, including judges, raise serious constitutional concerns. The Appointments Clause provides that the President 10 Again, the foregoing discussion covers a small sample o f the Department’s applications o f this principle. Other significant examples include: The President's Compliance with the 'Timely Notification’ Requirement o f Section 501(b) o f the National Security Act, 10 Op. O.L.C. 159 (1986); Inter-Departmental Disclosure o f Information Sub­ mitted under the Shipping Act o f 1984, 9 Op. O.L.C. 48 (1985); Removal o f Members o f the Advisory Council on Historic Preservation, 6 Op. O.L.C. 180, 185 n.7 (1982). 11 The clear statement principle we have identified does not apply with respect to a statute that raises no separation of powers questions were it to be applied to the President. So, for instance, the Department o f Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President. Memo­ randum for Laurence H. Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Whether Governor Rockefeller, I f Appointed as Vice President, Is Required to Execute a Blind Trust in Order to Avoid Possible Violation o f 18 U.S.C. §208 at 2 (Aug. 20, 1974). 18 U.S.C §201 establishes that “ (w]hoever, being a public official” receives a bribe commits a criminal offense. Id. §201(c)(l)(B ). “ Public official” is defined as a “ M ember o f Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, o r an officer o r employee o r person acting for or on behalf of the United States . . . in any official function . . . . * ’ Id. §20 1 (a)(l). Application of §201 raises no separation of powers question, let alone a serious one. The Constitution confers no power in the President to receive bribes; in fact, it specifically forbids any increase in the President’s compensation for his service while he is in office, which is what a bribe would function to do. See U.S. Const, art. II, § 1, cl. 7. Moreover, the Constitution expressly authorizes Congress to impeach the President for, inter alia, bribery. Id. §4. The Constitution further provides that any party impeached and convicted may “ nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to L aw .” Id. art. I, §3. We also opined that the Federal Advisory Committee Act applies to the Department of Justice Journal Board, because this application raises no separation o f powers concerns. See Application o f Federal Advisory Com­ mittee Act to Editorial Board o f Department o f Justice Journal, 14 Op. O.L.C. 53 (1990). 357 Opinions o f the O ffice o f Legal Counsel in Volume 19 shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Con­ suls, Judges o f the supreme Court, and all other Officers of the United States . . . but the Congress may by Law vest the Appoint­ ment o f such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U.S. Const, art. II, §2, cl. 2. Because the Constitution gives the President alone the power to nominate non-inferior officers o f the United States, any attempt by Congress to restrict his choice of nominees, otherwise than by the Senate’s refusing its consent to a nomination, is questionable under the Constitution. We hasten to add that we do not take a final position on the difficult question of whether, and under what circumstances, Congress has authority to impose a quali­ fication requirement on a constitutional office. It is sufficient for the purposes of this memorandum to demonstrate that applying a restriction such as that con­ tained in § 458 to presidential appointment of federal judges would at a minimum raise a serious constitutional question. This office has not had the occasion to opine on this issue, and we cite previous statements for the sole purpose of dem­ onstrating the difficulty and seriousness of the questions that the issue raises. As the United States Court o f Appeals for the District of Columbia Circuit recently wrote, “ Congressional limitations— even the placement of burdens — on the President’s appointment power may raise serious constitutional questions. . . . Presidents have often viewed restrictions on their appointment power not to be legally binding.” Federal Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) (Silberman, J.), cert, dismissed, 513 U.S. 88 (1994). To support this conclusion, the court cited, as examples, statements issued by President Bush upon signing various pieces of legislation. See Statement on Signing the Cranston-Gonzalez National Affordable Housing Act, 2 Pub. Papers of George Bush 1699, 1701 (Nov. 28, 1990) ( “ National Affordable Housing Act Statement” ); Statement on Signing the National and Community Service Act of 1990, 2 Pub. Papers of George Bush 1613, 1614 (Nov. 16, 1990); Statement on Signing the Intelligence Authorization Act, Fiscal Year 1990, 2 Pub. Papers of George Bush 1609, 1610 (Nov. 30, 1989). President Bush asserted, for example, that limitations set out in legislation “ do[] not constrain the President’s constitu­ tional authority to appoint officers o f the United States, subject only to the advice and consent o f the Senate.” National Affordable Housing Act Statement at 1701, quoted in part in NRA Political Victory Fund, 6 F.3d at 824-25.12 12The position taken by President Bush w as based on the principles set out in Justice Kennedy’s concurring opinion in Public Citizen v. United States Dep’t o f Justice, 491 U.S. 440 (1989), joined by C hief Justice Rehnquist and Justice O ’Connor. “ By its term s,” Justice K ennedy wrote, “ the [Appointments] Clause divides the appointment power into tw o separate spheres: the President's pow er to 'nom inate,’ and the Senate’s pow er to give or withhold its ‘Advice and Consent.’ No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated fo r appointment.” Id. at 483. Furthermore, “ where the Constitution by explicit text commits the pow er at issue to th e exclusive control o f the President, we have refused to tolerate 358 Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges There has been a particular concern about applying qualifications for appoint­ ments o f Article III judges. In 1979, for example, our Office rejected the argument that the ADEA applied to the President’s choice of nominees for judgeships. Judges— Appointment— Age Factor, 3 Op. O.L.C. 388 (1979). We there accepted that Congress might impose some qualifications on some constitutional offices, but nevertheless noted that applying the ADEA to judicial nominations would constrain the President’s ability to exercise a long-term influence on the develop­ ment of the law. We concluded that, “ because o f the gravity of the constitutional questions [a requirement to ignore the age of potential nominees] raises, we would be most reluctant to construe any statute as an attempt to regulate the President’s choice in that way.” Id. at 389. As we stressed, “ [t]he power to appoint Federal judges, who hold office on good behavior, is by tradition and design one o f the most significant powers given by the Constitution to the President.” Id. The Constitution vests in the President the power to nominate judges and vests in the Senate the power to give, or refuse, its advice and consent to the nomina­ tions. Without taking a position on whether, and under what circumstances, Con­ gress has authority to impose qualification requirements on constitutional offices, it is clear that, if a Congress tried to bind future Presidents and future Senates by imposing statutory constraints on eligibility, such legislation would raise serious constitutional questions. n The clear statement rule settles the meaning of §458. Section 458 does not apply to presidential appointments of federal judges. Even without applying this constitutionally based principle, however, analysis of the text of § 458, its prede­ cessor, and the text of the Act of 1911 taken as a whole, establishes the same result. That result is further supported by every available piece of contempora­ neous, extra-statutory evidence of the understanding of members o f Congress, as well as by a consistent practice of non-application of the statute to the appointment of federal judges. In this part, we discuss the meaning of §458 as it might be ascertained on the face of the statutes themselves, without reference to the clear statement principle. In the subsequent part, we review the contemporaneous congressional understandings of the statute’s meaning. Finally, we review some of the instances in which related persons within the meaning of the statute have been appointed to the federal bench by the President. As indicated earlier, the present statute appears to have originated as Act of Mar. 3, 1887, ch. 373, §7, 24 Stat. 552, 555. In its original form, the provision stated that: any intrusion by the Legislative Branch.” Id. at 485. With regard to the highest officers of the government, therefore, the President “ has the sole responsibility” for making nominations, id. at 487, and Congress may not intrude. 359 Opinions o f the O ffice o f Legal Counsel in Volume 19 no person related to any justice or judge of any court of the United States by affinity or consanguinity, within the degree of first cousin, shall hereafter be appointed by such court or judge to or employed by such court or judge in any office or duty in any court of which such justice or judge may be a member. Id. (emphasis added). In that version, the statute referred specifically to appoint­ ments by the courts or judges, and could not be understood to encompass presi­ dential appointments as well. In our constitutional scheme, judicial appointments are not made by judges, but rather have always been vested in the President with the advice and consent of the Senate. The statute was next codified as Act of Aug. 13, 1888, ch. 866, §7, 25 Stat. 433, 437. In that form too, it prohibited only the appointment of any person related to any federal justice or judge within the degree of first cousin “ by such court or judge.” This provision was repealed by the Act o f Mar. 3, 1911, ch. 231, §297, 36 Stat. 1087, 1168.13 The language substituted for the repealed provision did not, in terms, refer only to appointment “ by such court or judge.” Instead, it stated: No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree o f first cousin to the judge of such court. Id. §67, 36 Stat. at 1105. The repeal and re-enactment in 1911 left the description of the offices or duties to which related persons may not be appointed unchanged. It did alter the descrip­ tion of the persons who may not make such appointments. Whereas prior to 1911 only a “ court or judge” was prohibited from appointing related persons to such offices or duties, after 1911, the prohibition was simply that no related person could be appointed to such offices or duties. The evident purpose of the change was to remove an obvious loophole. Prior to 1911, the clerk of court, or the chief bailiff, or the chief stenographer, or any other official who worked in a court could appoint relatives o f sitting judges to positions on his or her staff, without 13The A ct o f Mar. 3, 1911, was designed to restructure the federal judicial system. A s Senator, later Justice, Sutherland explained, the legislation was: fram ed upon the theory that we shall hereafter have but one court o f original jurisdiction, instead o f two, as w e have at present . . . . [W]e have to-day two separate and distinct courts of jurisdiction— a circuit court o f the U nited States and a district co u rt o f the U nited States. Jurisdiction has been conferred upon the district court in a class o f cases which m ight as well have been conferred upon the circuit court and jurisdiction has been conferred upon the circu it court which might as well have been conferred upon the district court . . . . There is absolutely n o reason why the circuit court should possess a certain class o f jurisdiction rather than that it should b e possessed by the district court. The vital thing is to have a court o f original jurisdiction for the trial o f cases, and then a court o f appellate jurisdiction, which may review the decisions o f the trial court 46 C ong. Rec. 2137 (1911). 360 Application o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges violating the statute. Because such individuals as these might possibly be suscep­ tible to influence by sitting judges, the predecessor statute seemed to permit an evasion of the statute’s anti-nepotistical purposes through the expedient of having a non-judge who worked in the court appoint a judge’s relative. Beyond closing this appointment loophole, the statute remained otherwise intact. Because the language of the statute describing the offices or duties to which related persons may not be appointed remained the same, no change was made in the class of offices or duties covered by the statute — a class that at no time included judges. This conclusion is reinforced by a rule of construction that was written into the Act of 1911 itself, which reads as follows: [t]he provisions of this Act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change o f intent by reason o f a change of words in such statute, unless such change of intent shall be clearly manifest. Id. §294, 36 Stat. at 1167. With respect to its description of the offices or duties to which related persons may not be appointed, section 297 of the Act is “ substantially the same” as prior law. Nor is any “ change of intent . . . clearly manifest” by reason of the lin­ guistic change from the earlier provision. Accordingly, following the rule of construction set forth in the statute itself, we find that it does not vary prior law — judgeships were not in that class prior to 1911, and they are not in that class subsequent to 1911.14 14 We note that our reading does not violate the maxim o f statutory construction that words in a statute should not be construed so as to render them meaningless. It is true that the vast majority o f the positions to which §458 applies are “ em ploym ents” rather than “ offices.” For a discussion o f the difference between an employment and an office, see Untied Slates v. Hartwell, 73 U.S. (6 Wall.) 385 (1867); United States v. Germaine, 99 U.S. 508 (1878); United Slates v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C ircuit Justice). Never­ theless, the Supreme Court long ago concluded that the clerk o f a district court is an officer in the constitutional sense, Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839), and has recently reaffirmed that view, see Morrison v. Olson, 487 U.S. 654 (1988). This office has traditionally been filled by an appointment “ by [a] couit[] o f law,” specifically by the chief judge o f the relevant district o r circuit. We believe that the provision would continue to apply to appoint­ ments to the office o f clerk by a federal judge. We also note that our view avoids a serious question regarding the legality o f the recent designation o f District Judge Gordon Thompson, Jr., to sit by designation on a panel o f the United States Court o f Appeals for the Ninth Circuit with his brother. Judge David Thompson. See Howard Mintz, Nepotism Law Threatens Nomination; Mother and Child Reunion on Bench?, Legal Times, Dec. 11, 1995, at 8. Because we do not believe that §458 applies to the office o f judge, it is o u r conclusion that Chief Judge J. Clifford W allace could not have violated § 4 5 8 by exercising his authority under 28 U.S.C § 292(a) to designate District Judge Thompson to sit as a Judge on a Ninth Circuit panel with his brother. 361 Opinions o f the Office o f Legal Counsel in Volume 19 in We have reviewed the legislative debate over the Act of 1911, and have found no evidence that the textual alteration of the earlier statutory language was intended to work any change in the class of offices or duties covered, and certainly none that it was meant to reach presidential appointments to the federal bench. Moreover, contemporaneous and near contemporaneous evidence of Congress’s own understanding clearly substantiates that Congress did not intend to extend the scope of the earlier prohibition to include judicial appointments by the Presi­ dent. Section 297 of the Act of Mar. 3, 1911, was to go into effect on January 1, 1912, abolishing the circuit courts and causing the district courts to succeed them, so that clerks would have to be appointed for the district courts. Shortly before the law went into effect, it was pointed out in Congress that these changes “ would prevent any man who is related within certain degree by affinity or con­ sanguinity to the district judge from being appointed clerk.” 48 Cong. Rec. 309 (1911) (remarks of Rep. Clayton). Thus, even incumbents who had not been appointed to circuit court clerkships by judicial relatives would be ineligible to be appointed to clerkships in the succeeding district courts if it happened that their close relatives sat on those district courts. Several members of Congress objected to that unforeseen and unintended outcome. Legislation was introduced, and eventually adopted, to “grandfather in” such incumbents.15 In the course of the House debate on this amendatory measure, several members adverted to the prohibition of the then-recent prior law. Congressman Mann described section 297 as “ providing that the judge o f the Federal court shall not be permitted to appoint his first cousin an officer o f the court . . . . It should be the policy of the country to uphold the dignity o f the Federal bench, to guard against the possibility o f favoritism on the part o f the judges because of close kinship.” 48 Cong. Rec. at 310 (remarks of Rep. Mann) (emphasis added). Simi­ larly, in colloquy, Mr. Hardy asked if the proposed amendment “ opposes the appointment o f relatives by public officials?” , and Mr. Bartlett, referring to sec­ tion 297, responded that “ [t]he original section, I apprehend, had that purpose in view.” Id. Plainly, then, the members of the House interested in the amendment in the December 1911 debate understood that the March 1911 enactment had only restricted the power o f judges to appoint their near kin to positions with their courts. Although these remarks occurred after the enactment of section 297, they were made only a few months after that section had become law, and thus provide useful evidence of what the enacting Congress intended by it. Later codifications carried forward the language adopted in 1911, with changes not relevant here. See Act of June 25, 1948, ch. 646, §458, 62 Stat. 869, 908; 15 See Act o f Dec. 21, 1911, ch. 4, 37 Stat. 46 ( “ [N]o such person at present holding a position or employment in a circuit court shall be debarred from sim ilar appointment or em ployment in the district court succeeding to such circuit court jurisdiction.” ). 362 Application o f 28 U.S.C. § 458 to Presidential Appointments o f Federal Judges H.R. Rep. No. 80-308, at A55 (1947). In light of this legislative history, we see no reason to suppose that Congress ever intended to do more than to make fully effective the original prohibition against nepotistical appointments by judges, and that the sole function of the change of 1911 was to close a loophole in the original statutory scheme. rv Finally, we note that the consistent practice since the present version of §458 was enacted in 1911 has been to construe the statute as not applying to presidential appointments. On at least three occasions since 1911, the President has appointed and the Senate has confirmed relatives within the statutory degree of consanguinity to the same court. In 1914, President Woodrow Wilson, just three years after the enactment of §458 in its present form, appointed Augustus Hand to be a District Judge for the Southern District of New York, even though his first cousin, Learned Hand, had been a District Judge of that court since 1909. In 1927, Presi­ dent Coolidge elevated Judge Augustus Hand to be a Circuit Judge on the United States Court of Appeals for the Second Circuit, even though Judge Learned Hand had been appointed to that court three years earlier. More recently, in 1992, Presi­ dent Bush appointed and the Senate confirmed Judge Morris Arnold to be a Circuit Judge on the United States Court of Appeals for the Eighth Circuit, although his brother, Judge Richard Arnold, was already a member of that body. In addition, if the practical construction of §458 by the President and the Senate were to hold that it applies to presidential appointments, there would be a signifi­ cant question as to the validity of a number of appointments where one relative served on an appeals court while another served on a district court. Specifically, it is not clear whether, for purposes of §458, a district court is a component of the court of appeals for the circuit in which the district is located. Most recently, Diana Motz was confirmed and appointed to the United States Court of Appeals for the Fourth Circuit in 1994, while her husband, Frederick Motz, was a judge for the District of Maryland. We are not aware of anyone ever proposing that §458 applies to presidential appointments of federal judges. In this light, applying §458 to presidential appointments of federal judges would represent a novel construction of the statute. We do not reject this construction, however, because it is novel. We reject it because it is contrary to the statute’s language, structure, and purpose, as well as the consistent practice under that statute from the date of its enactment. WALTER DELLINGER Assistant Attorney General Office o f Legal Counsel 363

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Employment Status of “Volunteers” Connected with Federal Advisory Committees T he D epartm ent o f C om m erce may em ploy volunteers as consultants to the P resident’s Task Force on Private S ector Initiatives pursuant to 5 U .S .C . § 3109, as long as the services involved are tem porary o r interm ittent, and purely advisory in nature. It m ust also be clearly understood that such volunteers expect no governm ental com pensation. Federal agencies ordinarily may not accept voluntary services or other donations in the absence of express statutory authority, and volunteers should not in any case be used on a broad scale or to accom plish tasks ordinarily perform ed by paid governm ent em ployees. February 25, 1982 M EM O RA N D U M OPINION FO R THE COUNSEL TO TH E PRESIDENT M em bers of your staff have asked us for advice concerning the employment status of persons who volunteer to assist a federal advisory committee. We have been given m aterials describing the President’s Task Force on Private Sector Initiatives (Task Force), an advisory com mittee created by Executive Order No. 12329, 46 Fed. Reg. 50919 (1981), and we have been asked to comment specifically on the propriety of accepting certain donations and voluntary serv­ ices in this context. We conclude that, subject to the specific limitations described below, voluntary services of consultants and other donations may be accepted by the governm ent to assist this advisory com m ittee. Background The Task Force was established in accordance with the provisions of the Federal Advisory Committee A ct, as amended (5 U .S .C . App. I), to advise the President and the Secretary o f Commerce concerning methods of promoting private sector activities designed to meet public needs, and to serve as a focal point for such private sector initiatives. See Exec. O rder No. 12329, §§ 1 and 2. The m em bership of the Task Force consists of both private citizens and public officials from the federal, state, and local governments. Id. at § 1. M embers of the Task Force serve without com pensation, but the government may pay their expenses pursuant to 5 U.S.C. §§ 5701-5707. Id. at § 3(b). The Departm ent of Com m erce is responsible for providing the Task Force with “ such administrative 160 services, funds, facilities, staff, and other support services as may be necessary for the effective performance of its functions.” Id. at § 3(c).1 In addition to staff provided by the Department of Com m erce,2 the Task Force would be “ loaned” personnel from various corporations or other private en­ tities,3 and it would receive donations and loans of equipment from such private sources.4 One corporation also has proposed to contribute the salary of another Task Force employee by donating money to a charitable organization5 that would compensate the “ em ployee” directly for his services to the Task Force. Discussion A. Personnel (1) Voluntary Service. The Federal Advisory Committee Act provides that the D irector of the O ffice o f M anagem ent and B udget (OM B) shall establish guidelines with respect to rates of pay for services of members, staffs, and consultants o f advisory com m ittees. 5 U .S .C . App. I, § 7(d). The O M B guidelines address the question of voluntary services as follows: The provisions of this section [dealing with pay for members, staff and consultants] shall not prevent an agency from accepting the voluntary services of a member of an advisory comm ittee, or a m ember of the staff of an advisory com m ittee, provided that the agency has authority to accept such services without compensa­ tion. OMB Circular No. A -6 3 , § 11(d) at A -9 (1974). As a general matter, federal agencies do not have the authority to accept voluntary services. In fact, C ongress has expressly provided in the A ntiDeficiency Act that “ [n]o officer or employee of the United States shall accept voluntary service for the United States . . . except in cases of emergency involving the safety of human life or the protection of property.” 31 U .S.C . § 665(b) (1976). In addition, employees may not waive a salary for which Congress has set a minimum. See, e.g., Glavey v. United States, 182 U .S. 595 (1901). 1 Travel and support services, o f co u rse, may be provided only to the extent otherw ise authorized by law, and subject to the availability of funds. See §§ 3(b) and 3(c) of E xec. O rder N o. 12329 2 T h e C om m erce D epartm ent sta ff includes regular C om m erce D epartm ent em ployees w ho are assigned to assist the Task Force, as well as em ployees hired specifically for the Task Force and paid with funds provided by the C o m m erce D epartm ent 3 We understand that the " lo a n e d ” personnel w ill serve the Task Force in eith er a full-tim e o r a part-tim e capacity, but that they are all otherw ise em ployees of ihe donors. To date, the Task Force has been offered the services o f o ne person from each o f the follow ing entities the A m erican Stock E xchange, RC A C orporation, A rm co S teel, A etna Life an d Casualty, and Call for A ction (a national volunteer netw ork). 4 T h e donations in kind consist o f the follow ing: four typew riters (from IB M ), stationery (from M ead F^per C orporation), one A pple Com puter, w ord processing softw are, and one televideo CRT unit (from A rm co); an d a o n e -y e a r loan o f a d u p licatin g m a ch in e, in c lu d in g free in s ta lla tio n , s e rv ic in g , and s u p p lie s (fro m X ero x C orporation) 5 T h e organization w ould be exem pt from taxation under 26 U S C . § 501(c)(3) 161 A lthough the interpretation o f § 665(b) has not been entirely consistent over the years, the weight of authority does support the view that the section was intended to elim inate subsequent claims against the United States for com pensa­ tion o f the “ volunteer,” rather than to deprive the government of the benefit of truly gratuitous services.6 Section 665(b) accordingly has been read as a com ­ plete bar to subsequent compensation of a “ volunteer,” and as an admonition to federal agencies to reach an express understanding with such volunteers that they will receive no government com pensation.7 In addition to the limitation o f liability rationale underlying § 665(b), agencies contem plating the acceptance o f volunteer services must also take account of the fact that an individual may not waive a salary for which Congress has fixed a m inim um . See, e.g., Glavey, supra. W hether this principle is expressed as a m atter of personnel management or unauthorized augmentation of appropria­ tions, it has always been interpreted to limit the situations in which services may be accepted.8 T here are, however, discrete situations w here Congress has not set minimum salaries for em ployees. For exam ple, there is no minimum salary set for persons em ployed as consultants pursuant to 5 U .S .C . § 3109.9 Although consultants may not be em ployed to perform “ governmental functions,” and their services m ust be interm ittent o r temporary and limited to tasks of a purely advisory nature, it seem s likely to us that some of the Task Force staff positions would fit this d escrip tio n .10 To the extent that individuals serving the Task Force work as consultants, they may do so on a volunteer basis, so long as it is clear that they expect no governm ental compensation. We understand that the Commerce D e­ partm ent will require each “ consultant volunteer” to execute a written waiver of com pensation, which should be sufficient to protect the government from subse­ quent salary claim s. We should em phasize that o u r research on this subject has revealed a virtually unanim ous view that there is an avowed preference for paid government employ­ 6 T h e legislative history, as w ell as the ju d ic ia l and adm inistrative interpretations of § 6 6 5 (b ) are d iscu ssed at som e length in an o p in io n o f this Office dated M ay 25, 1976 You should refer to the 1976 o p in io n fo ra full analysis o f the law o f voluntary serv ices. In this o p in io n , we will sim ply apply the prevailing interpretation of the law to the Task Force A dvisory C o m m ittee. 7 O u r interpretation of § 665(b) is bolstered by a subsequent congressional enactm ent perm itting federal em ployees w ho serve “ w ithout com pensation” (W O Cs) to accep t a salary for their governm ent service from a so u rce outside th e governm ent See 18 U S C . § 209. S ection 209 m akes n o reference in its text o r legislative h isto ry to a b ar on the acceptance of voluntary services by the governm ent, but it surely contem plates that th ere are circu m stan c es w here the acceptance of uncom pensated service is prop er For a discussion o f voluntary services that have been specifically authorized by C ongress, see Antitrust Subcommittee c f the House Comm, on the Judiciary, 84th C o n g , 2d S ess , Interim Report o n W O C s and G overnm en t A dvisory G roups (C om m . P rint, 1956) (h erein afte r referred to as Interim Report). See also 5 U S C § 3111 w hich specifically authorizes the acceptance of v o lu n teer services from students. 8 See d iscu ssio n in o p in io n o f May 25, 1 9 7 6 , referred to in footnote 6 A s you know, m ost federal po sitio n s are co v e re d by the G en eral S alary (G S ) schedule, fo r w hich C ongress has set fixed m im m um s. See 5 U .S .C . § 5101 et seq. W hile this fixed salary schedule actually exem pts persons w ho serve “ w ithout co m p en satio n ,” 5 U S .C § 5 1 0 2 (c) 13, the policy underlying the sch ed u les has been read to counsel against the use o f volunteers to acco m p lish ta sk s that w ould ordinarily be p erform ed by em ployees covered by the schedule 9 A s w e have rece n tly advised y o u , there is a lso no m inim um salary set for certain em ployees o f the W hite H ouse staff. 10 See O M B C irc u lar A - 120 (1980) fo ra fu ll description of the lim itations on the use o f consultants We w ill leave it to the ju d g m e n t o f the C om m erce D epartm ent to determ ine w hich o f the Task Force sta ff positions may ap propriately b e filled by consultants 162 ment. See, e.g.. Interim Report, supra at 2 3 -9 . The express prohibition in § 665(b) on the acceptance of voluntary services admittedly has caused some uncertainty about the propriety of uncompensated government service when such service is not expressly authorized by statute." Although there is no express statutory authorization for volunteer consultants to the Task Force, we are comfortable with the position that the absence of a minimum salary level, and the nature of consultant services, make the use of volunteer consultants acceptable in this context. We must advise caution, however, against the use of volunteers on a broad scale or to accomplish tasks ordinarily performed by paid government em ployees.12 (2) Conflict of Interest. Having determined that it is appropriate as a general matter for the Com merce Department to accept volunteer consultants to serve the Task Force, we next must determine the extent to which the conflict of interest statutes and agency conduct regulations will apply to these volunteers. The Federal Personnel Manual (FPM), Ch. 735, App. C (1969), sets forth the principles for determ ining whether persons serving the government on a tem po­ rary or intermittent basis are subject to the conflict of interest laws. Briefly, the FPM distinguishes between (1) persons “ whose advice is obtained by an agency . . . because of [their] individual qualifications and who serve . . . in an inde­ pendent capacity” and (2) persons who are asked “ to present the views of a non­ governmental organization^] or group[s] which [they] represent, or for which [they are] in a position to speak.” FPM , App. C at p. C—4. The former category of independent experts is deemed to be subject to the conflict of interest laws because their service to the government is expected to be impartial, and free from outside influence or control. The latter category of private representatives, on the other hand, is not subject to the conflict of interest laws because it is expected that such persons would be influenced by the private groups that they have been chosen to represent.13 M For a discussion o f statutes w hich expressly authorize governm ent em ploym ent w ithout co m p en satio n , see Interim Report, supra at 120. See also 5 U S C . § 3111 12 See in particular. Interim Report, supra at 23 and A pp B , citing Executive O rder N o 10182 (Nov. 21, 1950) 15 Fed. Reg 8013 w hich governed the use o f “ W O C s” as authorized by the D efense Production A ct o f 1950. The Executive O rder provides that So far as possible, operations under the Act shall be ea rn e d on by full-tim e, salaried em ployees of the G overnm ent, and appointm ents under this authority shall be to advisory or consultative positions only. A ppointm ents to positions other than advisory o r consultative may be m ade u n d er this ord er only w hen the requirem ents o f the position are such that the incum bent m ust personally possess outstanding experience and ability not obtainable on a full-tim e, salaried basis. Interim Report. supra at 121. 13 We have found that these FPM criteria are ordinarily the m ost useful standard to apply in determ ining w hether particular persons w ho serve an advisory com m ittee are federal em ployees fo r purposes o f the conflict o f interest laws T here are, however, other factors that m ay be relevant to such a determ ination. For exam ple, if a person perform s a governm ent function, recetves a governm ent salary, o r ts supervised directly by governm ent em ployees, it is likely that he w ill be deem ed a federal em ployee for other personnel purposes. See 5 U S C . § 2105(a), and Lodge 1858, AFG E v NASA, 424 F. Supp. 186 (D .D .C 1976) Sim ilarly, the Standards o f C o n d u ct for the C om m erce D epartm ent apply to “ fejvery o th e r person w ho is retained, designated, appointed, o r em ployed b y a Federal officer or em ployee, w ho is engaged in the perform ance of a function o f the D epartm ent u n d er authority of law o r an Executive act, and w ho is subject to the supervision o f a Federal officer o r em ployee w hile engaged in the perform ance o f duties o f his position not only as to w hat he does but also as to how he perform s his d u ties, regardless o f w hether the relationship to the D epartm ent is created by assignm ent, d etail, contract, agreem ent o r oth erw ise ” 1 5 C F .R § 0 7 3 5 -4 (1981). 163 Although the m em bers of the Task Force may not be subject to the conflict of interest laws under this formulation, members of the Task Force staff (i.e., the regular Com m erce Department employees or the staff hired with Commerce D epartm ent funds) would be subject to those statutes. Given our understanding of the Task Force and the role o f the consultant volunteers, we would be inclined to place the volunteers in the category of the staff employees who are fully subject to the conflict of interest law s. We reach this conclusion based upon our understanding that the volunteers will be performing impartial professional services for the Task Force.14 O ne conflict of interest issue will be especially significant to the Task Force volunteers. As Com m erce Departm ent em ployees, the volunteers will be subject to rules governing outside compensation and gifts. While government employees serving without compensation are not prohibited by 18 U .S .C . § 209 from accepting a salary from an outside source, they should not accept anything of value (including a salary) under circum stances that will create, or appear to create, a conflict o f interest. T he Commerce Departm ent Standards of Conduct prohibit em ployees from soliciting or accepting any compensation or other thing of value from a person who: (1) H as, or is seeking to obtain, contractual or other business or financial relations with the D epartm ent of Commerce; (2) Conducts operations or activities that are regulated by the D epartm ent of Commerce; or (3) Has interests that may be substantially affected by the perform ance o r nonperformance of the em ployee’s official duty or by actions o f the Department. 15 C .F.R . § 0 .7 3 5 -1 1(a). There is an exception to this rule when the acceptance of the compensation is determ ined by the head of the operating unit concerned to be necessary and appropriate in view of the work of the Department and the duties and responsibilities of the employee. 15 C .F.R . § 0 .7 3 5 - 1 1(b)(5). We are not in a position to give you a definitive interpretation of this regulation for purposes o f the Task Force. W hile we would note the likelihood that a donor such as Arm co Steel has business relations with the Commerce Department, we are not aware o f any particular interest o f this donor in the work of the Task Force. The Com m erce D epartm ent, therefore, may feel that it is appropriate to apply the above-quoted exem ption to the situation of the “ volunteer” from Armco. In this m anner each paym ent should be reviewed carefully and individually, and we will 14 S ince it appears that the volunteers will b e serving for m ore than 130 days, they w ill be subject to the conflict of interest law s as regular, rather than special go vernm ent em ployees. A ppendix C o f the FPM sum m arizes the conflict statutes as they apply to both regular and sp ecial governm ent em ployees. S pecific questions about the application of these statutes o r the C om m erce D epartm ent Standards o f C onduct should be directed to the D esignated A gency E thics O fficial for that D epartm ent or the O ffice o f G overnm ent E thics. 164 defer to the judgm ent of the Commerce Department about the propriety of payments in specific cases.15 B. Equipment The Secretary of Commerce has been given authority by Congress to accept gifts of property for the purpose of aiding or facilitating the work of that Department. See 15 U .S .C . § 1522. In order to implement this authority, the Secretary has issued an Administrative Order (D A O -203-9), dated July 30, 1965, governing the acceptance of gifts and bequests by the D epartm ent.16 We understand that the anticipated donation of supplies and equipment to the Task Force will b e processed by the Commerce Department pursuant to this order. You should be aware that the order provides that gifts shall not be accepted unless they meet specific conditions, which include the following: [the gift] would not involve in substance, or have the appearance of involving, personal benefit to an employee for or in con­ templation of services to the donor. Its acceptance would not tend to result in public misunderstanding concerning the ability of any Department employee to carry out his official duties in a fair, independent, impartial, or objective manner. Its acceptance would not compromise or appear to compromise the honesty and integrity of departmental programs or of its employees and their official actions or decisions. Administrative Order at p. 2. We would interpret these conditions to suggest that the Com m erce D epartm ent direct the same kind of attention to the identity of donors as we described previously with regard to the volunteers.17 Conclusion For the reasons discussed above, we conclude that it would be appropriate for the Com m erce Department to accept “ volunteer” consultants to assist the Task Force. These volunteer consultants may receive a salary from an outside source, so long as the salary payment does not otherwise create a conflict of interest. 15 We d o not fully understand the reasons for the one proposed corporate paym ent to a volunteer through a taxexem pt organization. W hile we are not prepared to state unequivocally that such paym ent is im proper, we m ust express special concern about the advisability o f this proposal A t the least, we w ould note that the conflict o f interest regulations m ay not be circum vented by such a m echanism , both the corporation and the tax-exem pt organization should be scrutinized as to any disqualifying conflicts. 16 T he order expressly provides that it shall not govern the donation of personal services. 17 You have not asked us for advice concerning the propriety of soliciting, as o pposed to accep tin g , don atio n s o f p roperty o r services. Since we do not know whether, or in w hat manner, the Task Force w ould be so licitin g d o nations, we have not attem pted to address that issue in this m em orandum . 165 Under similar standards, donations of equipment may be accepted on behalf of the Task Force. T h e o d o r e B . O lso n Assistant Attorney General Office of Legal Counsel 166

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Payment of Expenses Associated with TYavel by the President and Vice President B in d s appropriated for the official functioning of the offices of the President and the Vice President m ay b e used fo r travel expenses only if the travel is reasonably related to an official purpose; and, official activities m ay be funded on ly from funds appropriated for such purposes. Thus appropri­ ated funds should not be used to pay fo r political travel and political funds should not be used to pay for official travel. W h eth er an ev en t is official o r political for purposes o f paying its expenses m ust be determ ined on a case-by-case basis, and both the nature o f the event and the nature o f the individual involved should be considered. W here both official and political activities occur on the sam e trip, the expenses of individuals on the trip f o r both political an d official reasons can be apportioned between the governm ent and a political co m m ittee on a basis which reflects the tim e spent on the respective activities. D uring the p eriod of a presidential election cam paign. Federal E lection Com m ission regulations m ay require a differen t rule o f allocation. March 24, 1982 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT This memorandum responds to your request for our advice about the payment of expenses associated with travel by the President or Vice President. We are to assume that travel by the President or Vice President may often include both official events, undertaken as part of the President’s or Vice President’s official roles as governmental leaders, and purely political events, undertaken for par­ tisan purposes in order to advance the interests of the President’s and Vice President’s political party. This mixed character of much presidential and vice presidential travel follows naturally from their dual roles as governmental of­ ficials and leaders of their party. You have asked us to articulate the legal principles governing the allocation and payment of costs associated with such travel. Several caveats must be noted at the outset. First, our opinion should not be read as a declaration that the generally applicable principles will necessarily lead to an inflexible result in a particular case. In fact, the principles are of such generality that they often will generate few determinate results. They thus must be viewed as general guides to decisionmaking. Second, the principles should be applied to a particular trip by the officials most familiar with the facts of the trip. Each case may present unique circumstances that will need to be taken into 214 account in determining, for instance, whether an event is “ official” or “ politi­ cal” in character. As we will indicate, there is considerable room in this context for the careful use of informed discretion. Third, this opinion focuses on broadly applicable legal principles, not on the specific rules adopted by the Federal Election Commission forelection activity. See 11 C.F.R. Chapter 1 (1981). If, in light of this opinion, particular questions arise, we will, of course, be glad to address them. Furthermore, the principles discussed in this opinion may be fully understood only with an appreciation of the unique context presented by the peculiar functions and responsibilities of the President and Vice President in our system of government. They are the senior officials of the Executive Branch of government. Their official roles are necessarily political in the broad sense that they must formulate, explain, advocate, and defend policies. To the extent that the President and Vice President generate support for their policies and programs, they are also executing and fulfilling their official responsibilities. Even the most clearly partisan activity is not without some impact on the official activities of the President and Vice President. By the same token, official success or failure by the President and Vice President has an inevitable and unavoidable impact on the standing of their political party, members of their party, and their party’s candidates for public office. Thus, it is simply not possible to divide many of the actions of the President and Vice President into utterly official or purely political categories. To attempt to do so in most cases would ignore the nature of our political system and the structure of our government. Accordingly, efforts to establish such divisions must be approached with common sense and a good faith effort to apply the spirit of the principles we discuss in this memorandum, and they must be judged with considerable deference to the decisions of the persons directly involved in making the determinations. With this background, our discussion will focus on three major questions. First, what are the basic legal principles to be applied, putting aside specialized restrictions formulated by the Federal Election Commission with regard to election activities? Second, how does one determine whether an event giving rise to an expense is “ official” or “ non-official” in character? Third, assuming that a trip involves events that are both official and non-official (or political) in character, may certain of the expenses for such a mixed trip be apportioned between the government, on the one hand, and a political committee, on the other hand? In the fourth section, we will discuss other considerations that bear on the issues discussed herein. I. TVo Basic Norms When considering payment of expenses associated with presidential and vice presidential travel, two major principles governing the use of appropriated funds must be bome in mind. First, appropriated funds may be spent only for the purposes for which they have been appropriated. 31 U.S.C. § 628; 52 Comp. 215 Gen. 504 (1973); 50 Comp. Gen. 534 (1971). Thus, funds appropriated for the official functioning of the offices of the President and the Vice President may be used for travel expenses only if the travel is reasonably related to an official purpose. If, however, there is no reasonable connection between the expense incurred and the official purposes to be served by an appropriation— as, generally speaking, there would not be when an expense is incurred purely for partisan political purposes— official funds may not be used to pay the expense. The second basic principle is that, in general, official activities should be paid for only from funds appropriated for such purposes, unless Congress has author­ ized the support of such activities by other means. Stated another way, although appropriated funds should not be used for non-official purposes, it is equally true that outside sources of funds may not be used to pay for official activities. This latter principle, which prevents the unauthorized augmentation of appropriations, has been recognized by the Comptroller General on numerous occasions.1 A problem concerning an unauthorized augmentation of an appropriation does not arise when a trip is purely non-official in character and non-official funds are used to pay for it. Rather, the issue arises only where an official activity is supported by non-appropriated funds and where there is no authority for that to occur. In short, appropriated funds should not be used to pay for political events, and absent authority to the contrary, political funds should not be used to pay for official events. The difficulties of applying these principles arise because both types of activities may occur on the same trip and because it is exceedingly difficult in many instances to determine what is official and what is political. II. What Tests Should Be Used for Determining Whether an Expense Should Be Considered “ Political” or “ Official?” Because officials will wish to ensure that appropriated funds are used only to pay for expenses associated with official events and are not used to pay for political expenses, it will be necessary to determine on a case-by-case basis whether an expense is official or political in character. As discussed generally above, there is unfortunately no single litmus test for making such judgments. Indeed, many events could be characterized properly as either political or official or both. Therefore, in making this determination the persons most familiar with the facts of a particular trip will have to assess all of the circumstances involved and apply a large measure of common sense. There are, however, two major variables concerning the source of the expense to be borne in mind: the nature of the event involved, and the nature of the individual involved. Either, or both, of these indicia may be useful in a particular case in determining whether a particular expense should be considered official or political. With respect to the nature of the event giving rise to an expense, an earlier opinion of this Office, entitled “ Political Trips” and transmitted to the Counsel to the President on March 15, 1977, stated the following guidelines: ' S e e .e /> .2 3 C om p. G en 6 9 4(1944), 4 6 Com p. G en . 6 8 9 (1 9 6 7 ) Scralso 9 C om p D ec. 174 (1902), 17Com p. D ec. 712 (1911) 216 As a general rule, Presidential and Vice Presidential travel should be considered ‘political’ if its primary purpose involves their positions as leaders of their political party. Appearing at party functions, fundraising, and campaigning for specific candidates are the principal examples of travel which should be considered political. On the other hand, travel for inspections, meetings, non-partisan addresses, and the like ordinarily should not be considered ‘political’ travel even though they [sic] may have partisan consequences or concern questions on which opinion is politically divided. The President cannot perform his official duties effectively without the understanding, confidence, and support of the public. Travel and appearances by the President and Vice President to present, explain, and secure public support for the Administration’s measures are therefore an inherent part of the President’s and Vice President’s official duties (pages 11-12). We concur with the foregoing rules of thumb, which are based largely on a common sense understanding of the nature of political and official activities.2 While we would hope that the foregoing generalities may be useful guides for the future, they should not be viewed as inflexible. There clearly is much room for discretion in determining whether an event giving rise to an expense is political or official. At bottom, the question is a factual one that can only be answered by those most familiar with the particular facts of a given situation. Nonetheless, in general, if the purpose of an event on a trip is to promote the partisan aims of the President’s or Vice President’s party or candidates of that party, then expenses incurred in performing the event would generally be political in character. Should particular questions arise about specific events, we would be glad to provide more concrete advice concerning them. The second variable that may, in some circumstances, determine the character of a particular expense incurred on a trip is the nature of the individual whose activity generates the expense. There are some individuals who, in particular situations, are on a trip for inherently official or political purposes. Expenses incurred by them should generally be viewed as either official or political depending on their particular role. For instance, there are some persons whose official duties require them to be with the President, whether or not the President himself is on official business.3 This group includes the President’s doctor, his military aide, and the Secret Service agents responsible for his protection.4 A similar group would exist for the Vice President. Expenses incurred during travel with the President or Vice President by this group of individuals should be 2 A lthough we generally agree w ith this earlier opinion of this O ffice, we w ould note that m uch o f its advice is o f a pru d en tial, n o ts tn c tly legal, ch aracter In the present m em orandum , w e do not undertake to specify rules that are not legally m andated. M oreover, the earlier opinion itself takes pains to stress the flexibility that exists in d eterm ining w hether, in a p articu lar case, travel by the President is official o r political (see page 7). 3 T his point is the sam e as stated in the M arch 15, 1977, opinion of this O ffice, entitled “ Political Trips” (p ag es 9, 15-16). 4 T h is list is not intended to be exhaustive T he President may, in his discretio n , d eterm ine that o th ers are necessary m em bers o f his official party w henever he travels. 217 considered official regardless of the character of the event that may be involved in a given trip. Similarly, on an otherwise entirely official trip, an individual may accompany the group for purely political reasons. As a rule, any expenses specifically incurred by such individuals should be considered political expenses, regardless of the events involved in the trip. In short, as we noted at the outset of this section, there is no single test for determining whether an expense is political or official in character. Viewed generally, expenses of individuals whose official duties require them to travel with the President or Vice President should normally be considered official. Expenses of individuals who are on a trip for purely political reasons should normally be considered political. Expenses associated with individuals who are not necessarily serving in either a wholly official or wholly political capacity— such as the President or Vice President or other individuals in the White House who may, consistent with their official duties, perform political functions— should normally be judged to be official or political depending on the character of the event giving rise to the expense. III. On a Mixed TYip Including Both Official and Political Activities, Can Certain Expenses Be Apportioned Between the Government and a Political Committee? Based on what we have said thus far, the following conclusions may be stated. First, if all events during a trip are political in character, the only official expenses on the trip would be those associated specifically with the group of individuals whose official duties require them to accompany the President and Vice Presi­ dent. Second, if all events on a trip are official in character, the only political expenses would be those associated specifically with individuals who accompany the President and Vice President on the trip for purely political reasons. This means that on a trip that is entirely official, any expenses associated with the President or Vice President or others who are not necessarily on the trip for purely official or purely political reasons should be considered official. Conversely, on a trip that is entirely political, expenses associated with persons who are not necessarily on the trip for wholly official or wholly political reasons should be considered political. A question remains, however, concerning expenses associated with individu­ als whose purpose for being on a trip is not necessarily only political or only official, when the trip itself is for both official and political purposes. Specifi­ cally, on a mixed trip involving a substantial official element and a substantial political element, can the expenses associated with the President or Vice Presi­ dent or others who are on the trip for both reasons be apportioned between the government and a political committee? There are several possible views on this question. It might be argued, for example, that the performance of an official event during a trip could not have been accomplished without incurring certain expend­ 218 itures and that, therefore, the entire cost of the trip should be treated as official and should be paid out of appropriated funds, with the sole exception being incremental expenses associated specifically with a political activity (e.g., a hotel bill for an extra night’s lodging necessitated entirely by a political event on the following day). This approach is grounded on the assumption that to permit any other apportionment of the cost of a trip to a political committee would allow the official budget to benefit from an unauthorized augmentation of appropria­ tions. Since the expenses incurred were necessary to accomplish an official purpose, on this view they must be paid for in full with appropriated funds. The opposite theory could also be advanced. That is, if there is any political activity on a trip, a political committee could theoretically be required to pay for the trip’s entire cost (except for incremental expenses specifically attributable to an official event). This theory proceeds on the assumption that any other approach would allow the President’s or Vice President’s political activities to be sub­ sidized by their official appropriations. A third approach, which in effect combines the first two, is suggested by a prior opinion of this Office, transmitted to the Counsel to the President on September 17, 1980, and entitled “ Reimbursement of Travel Expenses Incurred by Government Officials on Mixed Official and Campaign Trips.” That opinion responded to a question about the operation of a Federal Election Commission (FEC) rule under which a campaign committee’s share of the costs of a mixed official-political trip is the full cost of the trip from the point of origin through each campaign-related stop and back to the point of origin. 11 C.F.R. § 9004.F.5 After the FEC adopted this rule, the White House Counsel’s Office assumed that the expense to the government for such a trip would be the difference between the trip’s actual cost and the amount reimbursed by the campaign committee. However, the Counsel’s Office was concerned that such diminishment of the actual expense to the government could constitute an unauthorized augmentation of appropriations. For that reason, it sought an opinion of this Office. The September 17, 1980, opinion concluded that, if the government were to pay only the difference between the actual cost of a trip and the amount reimbursed by the campaign committee under the FEC rule, there would be an unauthorized augmentation of appropriations (assuming no authority to accept contributions) so long as the government were allowed to “ reap the benefit” of the enhanced payment of expenses by the campaign committee under the FEC rule. To cure this problem, the opinion stated that an accounting system should be devised to charge “ the full allocated travel costs to both the Campaign Commit­ tee and the government agency,” with a deposit of any excess funds in the Treasury (page 4, emphasis added). While we express no view regarding the correctness of this third approach during the period of a presidential election campaign when the Federal Election 5 For instance, if a trip from W ashington, D C , to Chicago w ere taken for official purposes, an d then a trip from C hicago to D enver w ere taken for cam paign purposes (with a return from D enver to W ashington, D C ) , u n d e r the FEC rule the cam paign com m ittee w ould have to m ake reim bursem ent for the co st o f travel from Washington* D .C ., to D enver and back to W ashington, D C. 219 Commission’s regulations would be applicable, we do not believe that the approach correctly reflects the requirements that apply outside the campaign period. We believe that the first two approaches are unreasonable solutions to the problem because each tilts the scales completely toward one of the two conflicting guiding principles and results either in an inappropriate augmentation of appro­ priated funds or the subsidization of political activity with appropriated funds. The approach of the September 17, 1980, Office of Legal Counsel opinion attempts to address these problems in, we believe, an unrealistic and unnecessary way by requiring one trip to be paid for twice— both with official funds and with political funds. In our view, a fourth approach which attempts in good faith to apportion the costs of such a trip on the basis o f a reasonable division between the time spent on political activities and the time spent on official activities is a more reasonable and a legal resolution of the underlying problems. For example, if 50 percent of a single day’s events are political and 50 percent are official, approximately 50 percent of the costs associated with participants whose roles are not neces­ sarily either official or political should be reimbursed by the political committee and 50 percent should be paid from appropriated funds, unless such an appor­ tionment, under the particular circumstances, would on some basis be unreason­ able or inequitable. We believe that such an approach faithfully accommodates both of the basic norms discussed in part I. Thus, when there is a mixed trip involving the President or Vice President, the purpose of which is both substantially political and substantially official, ex­ penses should be paid in the following manner: first, expenses for individuals who are necessarily official (Secret Service, etc.) should be paid for with appropriated funds; second, expenses for individuals who are necessarily politi­ cal (campaign officials) should be reimbursed by a political committee; third, incremental expenses specifically attributable to an official event should be paid from appropriated funds, and incremental expenses specifically attributable to a political event should be paid from political funds; and finally, expenses for individuals whose official roles permit them to perform political activity should be reasonably and equitably apportioned so that a share reflecting the amount of a trip that is political in character should be paid by a political committee. If these general guidelines are followed, then the purposes of using appropriated funds for official purposes but not using such funds for political purposes will be achieved. We must reaffirm the limited nature of our conclusion about apportionment. As we have indicated, some categories of expenses may have to be treated as entirely official or entirely political, and thus they would not be subject to apportionment. Apportionment would be appropriate only with respect to ex­ penses associated with individuals whose official roles permit them to perform political functions, and only when those individuals are on a trip that itself is not entirely political or wholly official in nature.6 In such circumstances, to accom­ 6 We are not suggesting any specific form ula for apportionm ent, for several form ulae may b e equally reasonable C o ntinued 220 modate both of the guiding norms noted in part I, we believe that an apportion­ ment of expenses between appropriated funds and the funds of a political committee which reflects the relationship between official and political activities may be made. We urge caution in applying such an approach, particularly in retaining records to substantiate any characterization of an event or trip as political or official that could be used in the future if, for instance, there should be an audit by the General Accounting Office.7 IV. Other Considerations We would add one qualification to the preceding discussion. As noted in part I, official expenses, including expenses incurred during the President’s and the Vice President’s travel for official purposes, may not be paid for by funds other than those appropriated for official purposes unless there is authority to the contrary. An acceptable source of such authority would be a congressional authorization, in the form of a statute, for the President and the Vice President (or their respective offices) to accept gifts to defray their official expenses. This Office has concluded in the past that the White House Office and the Office of the Vice President do not have statutory authority to accept contributions or gifts. This legal premise provides the basis for the conclusion that the payment by a political committee of official travel expenses incurred by the President or Vice President would be an impermissible augmentation of the appropriations for these offices. However, in the course of our research for this opinion, we reviewed a provision of law, 2 U.S.C. § 439a (1982), not considered in any of the prior opinions on this subject by this Office or by the Comptroller General, which appears to grant the President and Vice President gift authority, at least to the extent of authorizing them to accept contributions to defray their ordinary and necessary official expenses. Section 439a states in full: Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other amounts contributed to an individual for the purpose cf supporting his or her activities as a holder cf Federal office, may be used by such candidate or individual, as the case may be, to and som e may be particularly well suited to particular trips For exam ple, a form ula may be predicated o n the num ber o f hours spent on each event, the num ber of hours on the entire trip (including travel tim e) devoted to official o r political affairs, the num ber o f events devoted to each, o r if a trip is devoted to one type o f event in a d istant city and another type in a nearby city on the return flight, on the relative distances travelled to each W hile som e general g uidelines w ithin these lim its should be established for consistency in application, the overrid in g factor is the reasonableness o f the apportionm ent in a specific situation. We w ould not exclude the possibility o f creating an exception fo rd e m inim is involvem ent inofficial activity during a trip that w ould be treated as en tirely p o litical, and vice versa. We note that previous A dm inistrations have m ade use of such a de m inim is exception, as indicated in the background m aterials supplied to us by your office 7 In tw o opinions to several S enators, dated O ctober 6 , 1980, and M arch 6 , 1981, the C o m p tro ller G eneral d iscu ssed the apportionm ent of travel expenses for purposes of their paym ent by official and political funds un d er the C arter A dm inistration (B—196862) A pportionm ent was not objected to by the C om ptroller G en eral. T h e C o m p ­ troller G eneral expressly noted, as we have observed here, that there are “ no guidelines o f a legally binding nature [w hich] have been established by legislation, judicial decision, or otherw ise” (p ag e 2 o f M arch 6 , 1981, opinion). T hese o p in io n s, coupled with prior practice by the W hite H ouse, buttress o u r conclusion that a reasonable ap portionm ent may be made in the circum stances we have described. 221 defray any ordinary and necessary expenses incurred in connec­ tion with his or her duties as a holder cf Federal office, may be contributed to any organization described in section 170(c) of . . . [the Internal Revenue Code of 1954], or may be used for any other lawful purpose, including transfers without limitation to any national, State, or local committee of any political party; except that, with respect to any individual who is not a Senator or Representative in, or Delegate or Resident Commissioner to, the Congress on January 8, 1980, no such amounts may be converted by any person to any personal use, other than to defray any ordinary and necessary expenses incurred in connection with his or her duties as a holder of Federal office. (Emphasis added.) The foregoing provision authorizes “ amounts contributed to an individual for the purpose of supporting his or her activities as a holder of Federal office” to be used by such individual “ to defray any ordinary and necessary expenses incurred in connection with his or her duties. . . .” The term “ Federal office” is defined separately as including the Offices of the President, the Vice President, and Members of Congress. 2 U.S.C. § 431(c). Accordingly, on its face, this provi­ sion would appear to authorize use by the President and Vice President of amounts contributed to such individuals for the purpose of supporting their activities as President or Vice President. This would include expenses incurred in the course of official travel.8 We have consulted the legislative history of 2 U.S.C. § 439a, first adopted as part of the Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93—443, 88 Stat. 1289, and have found nothing that would be inconsistent with such an interpretation. However, in the limited time available, we similarly have found nothing to indicate that Congress specifically considered the provision’s application to the Office of the President or Vice President. The brief floor discussion of this provision9 and of a similar provision in a predecessor bill10 merely focused on its application to Members of Congress, who traditionally have been permitted to accept gifts to defray the expenses of their offices.11 A regulation promulgated by the Federal Election Commission under this provision repeats the language of the statute. See 11 C.F.R. §§ 113.1 & 113.2. Thus, we are aware of no indication that Congress intended it to mean anything other than what it clearly says: that elected officials including the President and the Vice President may accept gifts to defray expenses incurred in connection with the performance of their duties. 9 O f c o u rse, an y ap p licab le conflict of in terest provisions w ould have to b e borne in m ind if § 4 3 9 a were to be used a s au thority fo r th e rece ip t o f contributions f o r the P resident's o r V ice P resid en t’s travel expenses. ’ S ee 120 C o n g . R ec. 3 5 1 3 9 (1974). 10 See 119 C o n g . R ec. 2 6 6 0 6 -0 7 (1973). " C o n g ress am en d ed th e provision in 1980, Pub. L. N o. 9 6 -1 8 7 , §§ 105(4), 113, 93 S tat. 1 3 5 4 ,1 3 6 6 (1980), g en e ra lly to p ro h ib it a fed eral official from co n v e rtin g co n trib u ted funds fo r h is o r h er personal use. A specific ex em ption to th is provision also w as added f o r individuals w ho w ere S enators and R epresentatives on January 8, 1980. 222 Nevertheless, we would caution against complete reliance on § 439a until further consideration has been given to the authority under that statute for political committees to make contributions, and until the matter has been coordinated with the Federal Election Commission. In this connection, the Federal Election Commission has authority to render advisory opinions to federal officeholders about “ the application of a general rule of law stated in” the Federal Election Commission Act, of which § 439a is a part. See 2 U.S.C. § 437(b). To our knowledge, the Commission has not been called upon to and thus has not formally addressed the application of § 439a to gifts made to the President or the Vice President to defray the expenses of their offices. Moreover, even if § 439a ultimately is to be relied upon to grant gift authority for the President and Vice President, we would advise that guidelines be estab­ lished for the receipt of contributions under the provision. This will be necessary since the Standards of Conduct regulations applicable to agencies in the Ex­ ecutive Office of the President, 3 C.F.R. §§ 100.735—(1)—(32), were not drafted with the intent of regulating contributions to meet the official expenses of the President and Vice President. Those regulations as currently drafted might not be consistent with full implementation of § 439a if that were desired. T h eo d o r e B. O lso n Assistant Attorney General Office of Legal Counsel 223

Write a legal research memo on the following topic.

Funds Available for Payment of Natural Resource Damages Under the Oil Pollution Act of 1990 T he P resident, acting through the D epartm ent of T ransportation, is authorized to use the O il Spill L iability T ru st F und to pay the claim s o f Natural R esource T rustees for uncom pensated natural resource dam ages in accordance with section 1013 o f the Oil P ollution A ct o f 1990, w ithout the need fo r fu rth er en actm ent o f appropriations. September 25, 1997 M e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l C iv il D iv is io n This responds to your memorandum of May 28, 1997, requesting this Office to resolve a dispute among several federal departments concerning section 1012 of the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484, 498 (codi­ fied at 33 U.S.C. §§2701-2761 (1994)) (“ O PA ” or “ the Act” ).1 We conclude that the President, acting through the Department of Transportation, is authorized to use the Oil Spill Liability Trust Fund ( “ Fund” ) under section 1012(a)(4) of OPA to pay the claims of Natural Resource Trustees for uncompensated natural resource damages in accordance with section 1013 of OPA, without the need for further appropriation. I. BACKGROUND A, OPA established a comprehensive regulatory framework for a coordinated inter­ governmental response to oil spills that threaten U.S. resources or occur on or near U.S. navigable waters. See 33 U.S.C. §§2701-2761. A key component of the Act is its provision for the designation o f federal, state, tribal, and foreign natural resource trustees (“ Trustees” ) who have authority to recover damages for injury to, destruction of, loss of, o r loss of the use of natural resources under their trusteeship, including the reasonable costs of assessing the damage. Id. §§ 2702(b)(2)(A), 2706(b).2 OPA further provides that the functions of Trustees are to assess natural resource damages and to develop and implement plans for 1 Because this dispute is between execuuve branch departments, and its resolution will affect the position taken by the Department o f Justice in litigation, it is appropriate for resolution by this office See Exec Order No 12146, 3 C .F R . 409 (1980), reprinted in 28 U.SC § 5 0 9 note (1994), 28 C F.R § 0 2 5 (1996) The positions asserted by the several involved departments are discussed in Section I B, infra 2See also 33 U.S C § 2701(20) (1994), which provides. ‘natural resources’ includes land, fish, wildlife, biota, air, water, ground water, dnnking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources o f the exclusive econom ic zone), any State or local government or Indian tn b e, or any foreign government 188 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship. Id. § 2706(c). The party found responsible for a spill (“ responsible party,” see id. §2701(32)) is liable for removal costs and damages specified in the Act. Id. § 2702(b)(1)(2). Among the damages specified are “ natural resource damages.” The Act fur­ ther provides that only Trustees, the statutory custodians of the affected natural resources, may recover natural resource damages from a responsible party, either by settlement or litigation. Id. § 2702(b)(2)(A). Section 1013 of OPA provides the procedural framework for the presentation and processing of claims for removal costs or damages. 33 U.S.C. §2713. After preparing an assessment of damages, claimants must, in general, first present their claims for removal costs and damages to the responsible party for consideration of settlement. If the claim is not settled within 90 days after presentment, the claimant may either sue the responsible party in court or “ present the claim to the [Oil Spill Liability Trust] Fund.” Id. § 2713(a), (c)(2). The presentation and disposition of claims against the Fund pursuant to section 1013 is governed by detailed regulations and is subject to administrative adjudication. Id. § 2713(e); 33 C.F.R. pt. 136 (1996). In pursuing a claim against the Fund, “ [t]he claimant bears the burden of providing all evidence, information, and documentation deemed necessary by the Director, NPFC [National Pollution Funds Center], to support the claim.” Id. § 136.105(a). Among other information, the written claim must include a description of the oil spill and “ the nature and extent of the impact of the incident” on the claimant; a statement of damages claimed; “ [a]n expla­ nation of how and when the [claimed] damages were caused” and what steps were taken to mitigate those damages; supporting evidence; a list of relevant wit­ nesses to the incident and the damages, with a description of each witness’s rel­ evant knowledge; information confirming that the claim was first submitted to the responsible party; and any other information deemed relevant by the National Pollution Funds Center ( “ NPFC” ) of the U.S. Coast Guard. Id. § 136.105. OPA provides that the Oil Spill Liability Trust Fund is “ available to the Presi­ dent” for designated categories of payments. 33 U.S.C. § 2712(a). The Fund, originally created in 1986 as a separate account within the Treasury, has been funded by a flve-cent per barrel fee on domestic and imported oil, by civil and criminal penalties, and by other cost recoveries.3 It is administered by the NPFC under the authority of the Secretary of Transportation. Section 1012(a) of OPA authorizes five separate uses of the Fund, of which the following two lie at the heart of this dispute: The Fund shall be available to the President for— 3 See section 8033(a) o f the Omnibus Budget Reconciliation Act o f 1986, Pub. L No. 99-509, 100 Stat. 1874, 1959-62 (codified at 26 U.S.C §9509(a) (1994)), 26 U.S C. §461 l( a H c ) (1994); id §9509(b)(2), (5) (1994) 189 Opinions of the Office o f Legal Counsel in Volume 21 (2) the payment of costs incurred by Federal, State, or Indian tribe trustees in carrying out their functions under section 2706 of this title for assessing natural resource damages and for developing and implementing plans for the restoration, rehabilitation, replace­ ment, or acquisition of the equivalent o f damaged resources deter­ mined by the President to be consistent with the National Contin­ gency Plan; [and] (4) the payment of claims in accordance with section 2713 [sec­ tion 1013 of OPA] of this title for uncompensated removal costs determined by the President to be consistent with the National Contingency Plan or uncompen-sated damages. 33 U.S.C. § 2712(a)(2), (4). For most of the purposes authorized by section 1012 — including the payment under section 1012(a)(2) of “ costs incurred” by domestic Trustees in carrying out their functions under section 1006 of OPA — payments may be made from the Fund “ only as provided in annual appropriation Acts.” 33 U.S.C. § 2752(a) (1994 & Supp. Ill 1997). Several specified categories of payments, however, may be made directly out of the Fund without the need for further appropriation by Congress. One of those excepted categories is the payment of claims pursuant to section 1012(a)(4), which authorizes the payment of claims in accordance with section 1013. See OPA § 6002(b), 33 U.S.C. § 2752(b). The President has delegated, by Executive Order, the functions vested in him respecting management and use o f the Fund. Exec. Order No. 12777, 3 C.F.R. 351 (1992) (“ Exec. Order” ). His functions regarding the payment of removal costs and claims under section 1012(a)(1), (3), and (4) have been delegated to the Secretary o f Transportation (“ the Department in which the Coast Guard is operating” ). Exec. Order § 7(a)(1)(A), 3 C.F.R. at 357. His functions respecting the paym ent of “ costs incurred” under section 1012(a)(2), on the other hand, have been delegated “ to the Federal trustees designated in the [National Contin­ gency Plan].” Id. § 7(a)(2), 3 C.F.R. at 357. B. As summarized in your memorandum, the Department of Transportation ( “ D O T” ) 4 contends that payments from the Fund to federal, state, and Indian tribe Trustees for natural resource damages may only be made under the provi­ 4 Except where otherwise specified, we refer collectively herein to the Department of Transportation, the Coast Guard, and the National Pollution Funds Center as “ D O T.” 190 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 sions of section 1012(a)(2), and thus require an annual appropriation before they can be made. On the other hand, the Federal agencies designated as Trustees — including the National Oceanic and Atmospheric Administration ( “ NOAA” ) of the Department of Commerce, the Department of the Interior, and the Department of Defense — assert that such damages may be compensated, as appropriate, either as a “ cost incurred” under section 1012(a)(2), or as a claim for “ uncompensated damages” under section 1012(a)(4). Payment under section 1012(a)(2) requires an annual appropriation, while payment under section 1012(a)(4) o f a claim, estab­ lished in accordance with section 1013, does not. Before reaching its current position on Trustee access to the Fund, the Coast Guard issued an “ interim rule” governing the filing of claims authorized to be presented against the Fund under section 1013 of OPA. See Claims under the Oil Pollution Act of 1990, 57 Fed. Reg. 36,314 (1992) (codified at 33 C.F.R. pt. 136 (1996)). With respect to claims against the Fund for natural resource dam­ ages, the Coast Guard regulations provide in relevant part: “Authorized claimants. (a) Claims for uncompensated natural resource damages may be presented by an appropriate natural resources trustee.” 33 C.F.R. § 136.207(a). Thus, the interim regulations characterize natural resource Trustees as “ authorized claimants” for purposes of filing claims against the Fund pursuant to section 1013. The rule goes on to provide detailed requirements for a Trustee’s natural resource damages claims against the Fund, including specific requirements for submitting “ the assessment and restoration plans which form the basis of the claim,” id. § 136.209(a). Although the interim rule suggests that Trustees may pursue claims against the Fund for natural resource damages, the preamble to the rule explains that it is “ an interim measure needed primarily to explain how eligible claimants may file a claim against the [Fund],” and that “ a more comprehensive rule may be devel­ oped and published for public comment.” 57 Fed. Reg. at 36,314. The preamble to the rule further explains: Legal issues concerning whether, under section 1013, Federal, State or Indian tribe trustees can claim against the Fund for natural resources damages and whether Federal agencies can claim against the Fund for any costs or damages have been raised. These issues are presently under review. This interim rule does not resolve these issues and leaves the matter open for future decision. Id. at 36,315. Accordingly, little guidance can be taken from the only imple­ menting regulations promulgated to date. In an attempt to resolve the question left open by the interim rule, in December of 1993, the Coast Guard asked the Comptroller General for an opinion addressing whether Trustees could present claims against the Fund under section 1012(a)(4). 191 Opinions of the Office o f Legal Counsel in Volume 21 In response, the Comptroller General issued an opinion concluding that “ natural resources trustees may be reimbursed from the Fund for costs incurred for damage assessments and the development and implementation of restoration plans only under section 1012(a)(2) of the [OPA], subject to the annual appropriations pro­ cess. Section 1012(a)(4) o f OPA is not available to natural resources trustees for claims for damages.” M atter of U.S. Coast G u ard— O il Spill Liability Trust Fund, B—255979, 1995 WL 632510, at *1 (C.G. Oct. 30, 1995) ( “ CG Op.” ).5 The Coast Guard then sent letters to federal and other Trustees stating that the Comptroller General’s opinion precluded the Coast Guard from entertaining Trustee claims against the Fund under section 1012(a). The Coast Guard stated in one such letter: As a consequence of the Comptroller General’s decision, the Trustees can no longer rely upon OPA’s claims process as a backup should responsible parties be unavailable to pay for natural resource damages resulting from their oil spills. And, the National Pollution Funds Center has no choice but to return all natural resource dam­ age claims to their submitters without adjudication. Those claims held in abeyance pending the Comptroller General’s decision will be returned shortly under a separate cover.6 Subsequently, the Coast Guard has declined to entertain section 1013 claims against the Fund made by Trustees seeking compensation for natural resource damages. The Coast Guard’s rejection of such claims is presently being contested in litigation brought by State Trustees who have been denied their claims against the Fund. See New York v. Oil S pill Liability Trust Fund, No. 96 Civ. 1951 (E.D.N.Y. filed Apr. 24, 1996); W etherell v. National Pollution Funds Center, No. 4:96CV517/MP (N.D. Fla. filed Dec. 6, 1996). You seek resolution of the inter-agency dispute over the proper interpretation of section 1012’s provisions for allowable payments from the Fund in order to formulate the legal position of the United States in the litigation involving Trustees’ access to the Fund. n . ANALYSIS A. The starting point for resolving disputes concerning the interpretation of a statute is, of course, the text of the statute itself. See United States v. Ron Pair 5 A lthough the opinions and legal interpretations o f the Comptroller General often provide helpful guidance on appropriation matters, they are not binding upon departments or agencies of the executive branch. See Bowsher v Syrmr, 478 U.S. 714, 727-32 (1986) 6 Letter for Ms Debra Preble, from Daniel F Sheehan, Director, National Pollution Funds Center, Re. Natural Resource Damage Claims at 1 (Dec 21, 1995) 192 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 Enterprises, Inc. 489 U.S. 235, 241 (1989). Here, the text of the statute seems plainly to authorize natural resource trustees to pursue claims for natural resource damages and to recover directly from the Fund, without requiring a separate appro­ priation, where they have established a valid claim under section 1013 of the Act. Section 1012(a)(4) of the Act authorizes “ the payment of claims in accord­ ance with section [1013 of the Act] for uncompensated . . . damages,” 33 U.S.C. § 2712(a)(4), and section 6002 of the Act provides that a separate appropriation is not required for payments made pursuant to section 1012(a)(4), see 33 U.S.C. §2752. A “ claim ” is defined to include a written request for payment “ for com­ pensation for damages,” id. §2701(3), and, in turn, a “ ‘claimant’ means any person or government who presents a claim for compensation” under the Act, id. §2701(4) (emphasis added).7 Finally, the term “ damages” is defined to include damages to “ natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, o r a foreign trustee.” Id. §§2701(5), 2702(b)(2)(A) (emphasis added). Congress expressly authorized a claimant under section 1013 to present a claim to the Fund in three separate provisions: once in section 1013(c), once in section 1013(d), and once again in section 1012(a)(4). None of those provisions indicate, or in any way suggest, that Trustees are excluded from the category of claimants to which they apply. Nor is there any ambiguity as to which provision of section 1012 governs the payment of such claims. Section 1012(a)(4) expressly governs “ the payment of claims in accordance with section [1 0 1 3 ]” (emphasis added), whereas section 1012(a)(2) makes no reference to the section 1013 claims proce­ dure. The various provisions authorizing payments from the Fund under section 1012, moreover, were drawn with considerable precision. For example, Congress speci­ fied that only costs incurred by “ Federal, State, or Indian tribe trustees” — but not foreign trustees — could be paid pursuant to section 1012(a)(2). Had the congressional drafters similarly intended to exclude Trustees from the class of claimants eligible to receive payments on their claims under section 1012(a)(4) — a class that would naturally encompass Trustees under the straightforward defini­ tions of the statute — it seems unlikely that they would have left such a significant exclusion to be inferred. Rather, the exclusion of Trustees’ claims could have been readily and unambiguously achieved by inserting a single phrase in sub­ section (a)(4) — by selectively authorizing, for example, “ (4) the payment of claims, other than payments otherwise authorized under subparagraph (a)(2) of this section , in accordance with section 2713 of this title.” Congress refrained, however, from drawing any such distinction. 7 It does not appear to be in dispute that OPA’s definition o f “ claimant” includes Trustees who present a claim for natural resource damages compensation under section 1013 o f the Act 193 Opinions o f the Office o f Legal Counsel in Volume 21 The text of OPA, accordingly, seems clearly to provide that the Fund may be used to pay the claims of Trustees, pursuant to the provisions of sections 1012(a)(4) and 1013, without the requirement for annual appropriations. B. DOT interprets the relevant provisions of OPA in a different manner. DOT asserts that, because section 1012(a)(2) of OPA separately authorizes Fund pay­ ments to Trustees for “ costs incurred,” and because such costs overlap to a large extent with the removal costs and uncompensated damages that may form the basis of a claim under section 1012(a)(4), there is a conflict or inconsistency between the two provisions if the latter also applies to Trustees. This asserted inconsistency derives from the related provisions of section 6002, 33 U.S.C. §2752, which make “ costs incurred” payments under section 1012(a)(2) contin­ gent on further appropriations, whereas the payment of perfected claims under section 1012(a)(4) may be paid directly from the Fund without more. In essence, DOT contends that Congress could not have intended to exempt Fund payments to Trustees under subsection (a)(4) from the fiscal discipline of the annual appro­ priations requirement that applies to payments for their costs incurred under sub­ section (a)(2). . 1 DOT first argues that section 1012(a)(4)’s explicit provision for use of the Fund to pay claims presented by Trustees and other claimants pursuant to section 1013 must give way to principles of appropriations law applied in rulings of the Comp­ troller General. Letter for Mr. Charles A. Bowsher, Comptroller General, from Adm. J. W. Kime, Commandant, U.S. Coast Guard at 3 (Dec. 6, 1993) (“ Coast Guard Ltr.” ). Invoking the analysis used by the Comptroller General in his 1995 ruling in this dispute, DOT likens the payment authorization of section 1012(a)(4) to a general appropriation which cannot be used to fund payments covered by a more specific appropriation, in the form of section 1012(a)(2)’s provision for payment of costs incurred by Trustees. Coast Guard Ltr. at 2. Specifically, DOT relies upon the following principle o f statutory construction applied by the Comp­ troller General in his opinion on access to the Fund: Where there is a seeming conflict between a general provision and a specific provision and the general provision is broad enough to include the subject to which the specific provision relates, the spe­ cific provision should be regarded as an exception to the general provision so that both may be given effect, the general applying only where the specific provision is inapplicable. 194 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f J990 CG Op. at 4 (quoting B-163375, 1971 WL 5205 (C.G. Sept. 2, 1971)). Initially, we note that the specific/general principle relied upon by DOT is but a canon of statutory construction, which, like other such rules, must yield to supe­ rior evidence of legislative intent. See Connecticut N a t’I Bank v. Germain, 503 U.S. 249, 253 (1992); Rubin v. United States, 449 U.S. 424, 430 (1981). Here, not only the plain meaning of the statute, but other indicia of statutory intent counsel against the construction proposed by DOT. The principal basis preferred by DOT for precluding federal, state, and Indian tribe trustees from recovering pursuant to section 1012(a)(4), for example, is that they are expressly entitled to recover costs incurred pursuant to section 1012(a)(2). That section, however, by its own terms does not apply to foreign trustees, and thus, under DOT’s rea­ soning, foreign trustees may still recover under section 1012(a)(4), without the discipline of a further appropriation. It seems highly improbable, however, that Congress intended to provide foreign trustees more liberal access to the Fund than it provided to domestic trustees. The most fundamental difficulty with DOT’s argument, however, concerns its critical premise: we do not find an irreconcilable conflict or inconsistency, see CG Op. at 4, between the payment provisions of subsections (a)(2) and (a)(4), even taking into account their relationship with the appropriations provisions of section 6002 o f the Act. Absent such a conflict or inconsistency, or other compel­ ling indicia of contrary congressional intent, there is no need or justification to depart from a straightforward application o f the statutory text. Although compensable “ costs incurred” under subsection (a)(2) concededly overlap to a large extent with the “ uncompensated damages” ttiat may be claimed under subsection (a)(4),8 there are a number of important distinctions between the two payment provisions. First, the Trustees’ access to the Fund under section 1012(a)(4) is specifically limited to those claims that have been pursued “ in accordance with section [1013].” That section requires claimants to first present their claims to the responsible party and to wait at least 90 days before submitting a claim to the Fund in order to provide reasonable opportunity for settlement. 33 U.S.C. § 2713(a), (c). Moreover, the payment of claims under section 1013 is subject to detailed regulations governing the presentation, filing, processing, settlement, and adjudication of such claims. Id. § 2713(e); 33 C.F.R. pt. 136. Those regulatory requirements include, inter alia, the preparation and presentation of the often costly assessment and restoration plans which form the basis of the claim; a description o f damages claimed by category; documented costs and cost esti­ mates for the plan; evidence relating to the spill and the damages; witness lists and descriptions of their knowledge of the incident; certification of the accuracy of claims submitted to the Fund; and certification as to whether the assessment was conducted in accordance with applicable provisions of the natural resources damage assessment regulations. Id. §§ 136.105, 136.209. Only if the NPFC deter­ 8 For purposes o f this opinion, we need not decide whether the overlap is complete or only partial. 195 Opinions o f the Office o f Legal Counsel in Volume 21 mines, after review of the claim, that the claimant has carried its burden of “ pro­ viding all evidence, information, and documentation deemed necessary . . . to support the claim ” is the claimant entitled to payment. Id. § 136.105(a).9 Consequently, a Trustee’s claim that has been prepared and documented (including assessment of damages), presented for settlement to the responsible party, and otherwise perfected in accordance with section 1013’s procedures cannot be equated with a direct application for costs incurred under subsection (a)(2).10 Unlike claims presented under subsection (a)(4), a Trustee seeking pay­ ment under subsection (a)(2) need not first present a claim to a responsible party in order to allow the opportunity for settlement. Nor are subsection (a)(2) payment requests governed by 33 C.F.R. pt. 136’s detailed evidentiary and adjudication requirements, which in terms apply only to “ claims authorized to be presented to the [Fund] under section 1013 of [OPA].” 33 C.F.R § 136.1(a)(1) (1996) (emphasis added). These requirements, moreover, are important to the overall enforcement scheme established under OPA. The 90-day waiting period, for example, was designed to encourage settlement.11 Similarly, the evidentiary and adjudicatory provisions set forth in the regulations governing claims presented to the Fund promote Fiscal discipline.12 In sum, the submission of a subsection (a)(4) claim to the NPFC by a Trustee differs in significant respects from a request for payment under subsection (a)(2). Accordingly, we find no irreconcilable conflict between the provision for these two categories o f payments to Trustees. 9 For a case illustrating the application of the 33 C F R pt. 136 regulatory requirements for presentment of a claim under section 1013, see Johnson v Colonial Pipeline Co., 830 F. Supp 309, 311 (E D Va. 1993) (property ow ner’s claim for oil spill damages held inadequate for compliance with the Coast Guard’s 33 C F R pt 136 claims regulations and section 1013 requirements, “ (t]he need for specificity in OPA claims is underscored by the [Coast Guard] regulations for filing such claims against the OPA Fund.” ). J0This basic distinction between the payment o f costs outside the claims procedure and the payment of claims perfected pursuant to section 1013 was recognized in OPA’s legislative history. Thus, the House Report characterized the kind o f cost reimbursement that could be obtained outside the claims procedure as “ direct uses . . which can be paid from the Fund prior to the presentment and payment o f a claim under section 104 of this Act " H R Rep No. 101-242, pt. 2, at 64 (1989) The Senate Report also recognized this distinction between the tw o modes o f payments from the Fund. See S. Rep No 101-94, at 10 (1989), reprinted in 1990 U S C C A N 722, 731 11 As recognized by the Eleventh Circuit in Boca Ciega Hotel, Inc v. Bouchard Transp. Co., 51 F 3 d 235 (1 Ith Cir 1995), a key purpose o f O PA ’s section 1013 claims procedure — and, in particular, the 90-day waiting penod — “ was to temper the A ct’s increased liability with a congressional desire to encourage settlement and avoid litigation ” Id at 238-39. A ccord Johnson, 830 F. Supp. at 310-11 (“ The purpose of the claim presentation procedure is to promote settlement and avoid litigation ” ). 12 W e acknowledge that payments authorized under section 1012(a)(2) are also subject to certain statutory and regulatory requirements, notably the requirement that actions be taken in a manner “ consistent with the National Contingency Plan.” 33 U S C. § 2712(a)(2), see also 15 C.F R. pi. 990 (1996) (NOAA regulations governing natural resource dam age assessments as required by section 1006(e)(1) of O PA, 33 U S.C § 2706(e)(1)) These requirements cannot, however, be equated with the mandatory claim s exhaustion requirements o f section 1013 or the prerequisites for the presentation, proof, and successful adjudication of a claim under the Coast G uard’s 33 C F R pt 136 regula­ tions. 196 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 2. In a related argument, DOT and the Comptroller General’s opinion assert that allowing Fund payments to Trustees under section 1012(a)(4) would effectively render meaningless the provision for payment of their “ costs incurred” under section 1012(a)(2). CG Op. at 4—5. By this reasoning, Trustees would invariably bypass the subsection (a)(2) mechanism in favor of the claims provision of sub­ section (a)(4) because the latter allows the direct payment of damages without the need for further congressional appropriation. This argument is premised on the interpretive canon providing that a statute should not be interpreted in a way that renders portions of it meaningless or ineffective. See Department o f Revenue v. ACF Industries, Inc., 510 U.S. 332, 340-41 (1994). DOT and the Comptroller General, however, have failed to demonstrate that subsection (a)(2) would be rendered meaningless if Trustees were permitted access to the Fund under subsection (a)(4). Before pursuing a claim under section 1013, for example, a claimant must generally present the claim to the responsible party and wait the required 90 days. When submitted, moreover, the claim must be supported by extensive assessment and documentation of the nature and extent of costs and damages, accompanied by certification of the accuracy and integrity of the claim as presented. See 33 C.F.R. §§ 136.105 to 136.113, 136.209. Payment o f the claim must then await NPFC review, evaluation, and adjudication. Congress might well have contemplated occasions when Trustees would be better served by seeking payments under subsection (a)(2), rather than comply with these substantial requirements applicable to claims under subsection (a)(4), even though payment under subsection (a)(2) would require a congressional appro­ priation. For example, a Trustee with limited resources might find it preferable to obtain payment for at least a portion of its allowable costs under subsection (a)(2) rather than complying with the procedural requirements for the presentation and adjudication of a claim against the Fund under section 1012(a)(4). Addition­ ally, if a Trustee’s claim is denied by the NPFC under subsection (a)(4) — due to noncompliance with the 33 C.F.R. pt. 136 procedural requirements, for example, see 33 C.F.R. § 136.105(a) — it could have a basis for pursuing those portions of its claim that constitute costs incurred under the provisions of sub­ section (a)(2). Indeed, if Congress were to make available a significant portion of the Fund for payments under subsection (a)(2) in an annual appropriations act, see 33 U.S.C. § 2752(a), it seems unlikely that eligible Trustees would bother to pursue payment under sections 1012(a)(4) and 1013 for costs otherwise recover­ able under subsection (a)(2) pursuant to the appropriation. Accordingly, we cannot conclude that the reading of the Act proposed by DOT is necessary to avoid rendering subsection (a)(2) meaningless. 197 Opinions o f the O ffice o f Legal Counsel m Volume 21 3. DOT also argues that the legislative history of OPA supports its understanding of the Trustees’ access to the Fund. Memorandum for the Commander, National Pollution Funds Center, from Chief, General Law Division, U.S. Coast Guard at 4 (Oct. 27, 1992); see also CG Op. at 4. The pertinent legislative history, however, fails to provide persuasive support for DOT’s position. The limited evidence of congressional intent that is available suggests that Congress intended to permit Trustees to obtain compensation directly from the Fund for natural resource dam­ ages under section 1013 of the Act. Moreover, given the great significance of a conclusion that Trustees may not obtain such compensation, the very paucity of evidence supporting the DOT construction of the statute, standing alone, casts doubt on that construction. Because the provision excluding the payment of claims pursuant to section 1012(a)(4) from the annual appropriations requirement was first introduced as part of the Conference substitute version of the bill, our review of the legislative his­ tory must focus on the Conference Report and subsequent debate.13 In describing section 1012(a)(4), the OPA Conference Report stated that “ amounts are available under category (4), without further appropriation, to p a y uncompensated claims in accordance with section 1013." H.R. Conf. Rep. No. 101-653, at 114 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 792 ( “ Conference Report” ) (emphasis added). In differentiating the uses o f the Fund authorized under subsections (a)(1) through (3) of section 1012, which were made subject to appropriations, the Con­ ference Report stressed that “ [t]hese amounts may be obligated by the Federal official or officials designated under the regulations authorized in subsection (c), and are not necessarily subject to the claims procedures in section 1013.” Id. at 113, reprinted in 1990 U.S.C.C.A.N. at 792. (emphasis added). Thus, the Con­ ferees recognized the distinguishing characteristic warranting payment of claims under section 1012(a)(4) without a requirement for further appropriation — i.e., such payments were predicated on prior compliance with the section 1013 claims procedure. The Conference Report also contained a separate explanation of the section 1013 claims procedure and how it was adopted by the Conference. Id. at 117, reprinted in 1990 U.S.C.C.A.N. at 795. The explanation states, “ [i]f full compensation is not available to settle a claim presented in accordance with this section, a claim for uncompensated removal costs and damages may be presented to the Fund.” Id. This explanation contains no suggestion that a claim for damages presented 13 It should also be noted, however, that the legislative history preceding the Conference Report is consistent with the view that Congress intended that Trustees should be able to receive compensation from the Fund pursuant to the section 1013 claim s process See, e g , S R ep No 101-94, at 10 (1989), reprinted in 1990 U .S C .C A N 722, 731 ( “ the Fund is to assure prompi access to sufficient sums to pay all removal costs and restoration o f natural resource dam ages” ) (emphasis added); H .R. Rep. No 101-242, pt 2, at 35 (explaining that “ all claimants, whether governmental or individual,” would be ab le to submit their claims to the Fund following exhaustion of the settlement provisions and “ recover in full for a broad list o f clearly spelled out damages” ) 198 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 to the Fund by Trustees would be treated any differently than one presented by any other claimant. Given the fact that Trustees are the only claimants able to assert natural resource damages claims under section 1013, and given that prompt compensation for natural resource damages was a paramount concern of the legis­ lation, it would be surprising for the Conferees to use such unqualified language if they intended to bar Trustees from obtaining compensation from the Fund on their claims unless an annual appropriation was enacted. Additionally, the floor debates on the Conference Report reflect the fundamental objective that the Fund “ should be available for prompt, adequate compensation to oilspill victims without having to endure endless and costly litigation.” 14 136 Cong. Rec. 22,289 (1990) (remarks of Rep. Stangeland). Similarly, in urging adop­ tion of the Conference Report on the House floor, the House sponsor of the bill, Representative Jones, explained as follows: Finally, we make it easier for victims of oilspills to recover for economic damages, natural resource damages, subsistence loss, and others. They can seek reimbursement from the spiller or directly from the $1 billion Federal trust fund. 136 Cong. Rec. at 22,285 (emphasis added) (remarks of Rep. Jones). Likewise, in further House debate on the Conference Report, Representative Fields observed: [T]his landmark legislation provides that those injured by an oilspill will be fully and swiftly compensated for their losses — such as property damage, lost income, damage to natural resources, and lost business opportunities. Once this legislation is signed into law, those adversely affected will not have to wait years in order to recover their losses. In fact, if an agreement with a spiller cannot be reached within 90 days, injured parties will be compensated from the $1 billion oil industry-financed fund and the fund will seek reimbursement from the spiller later. 136 Cong. Rec. at 22,291 (emphasis added) (remarks of Rep. Fields). A similar understanding of the Conference Substitute was expressed in debate in the Senate. See id. at 21,718 (“ we include [a] $1 billion industry-financed cleanup fund, and full compensation for natural resource damage” ) (remarks of Sen. Kerry); id. at 14 Legislative history preceding the Conference Report also stresses this purpose. As stated in the Senate Committee Report on OPA. One of the purposes o f the Fund is to provide a source o f money for immediate cleanup activities or damage compensation in the event a spiller does not act promptly. In such a case, the Fund w ould be used for removal costs and would be available fo r prompt damage compensation S. Rep. No 101-94, at 5, reprinted in 1990 U .S C C .A .N . at 727 (emphasis added) The Senate Report further stated that the Fund’s availability for such prompt damage compensation extended to natural resource dam ages claims. Id at 10, reprinted in 1990 U.S.C C.A.N. at 731 199 Opinions o f the Office o f Legal Counsel in Volume 21 21,716 (to compensate Federal agencies, States and citizens for damages from oil spills, “ the legislation makes available $1 billion — from a fee on the oil industry — to pay for spills where the polluter cannot be found, cannot pay, or where liability limits have been reached” ) (remarks of Sen. Baucus). These statements demonstrate that providing compensation for damages to nat­ ural resources was a central purpose of OPA and that Congress envisioned that payment of such claims would occur within the comprehensive framework estab­ lished in the Act. Against this backdrop, it seems unlikely that Congress would have precluded Trustees from pursuing these claims under section 1013 without any reference in the text or legislative history to such an important limitation. We recognize that portions of O PA ’s legislative history demonstrate that Con­ gress sought to limit expenditures under OPA by imposing substantial limits on payments from the Fund through the appropriation restrictions of section 6002. See CG Op. at 3. For example, during debate on the Jones Amendment to the House bill, which first subjected most payments from the Fund to the appropria­ tions process, Representatives Jones and Panetta both expressed concern regarding the bill’s direct spending implications as scored by the Congressional Budget Office. 135 Cong. Rec. 28,258-59 (1989). As Representative Panetta explained, the Jones Amendment was intended to address such concerns: The effect of this amendment would be, then, to reduce the direct spending authorized in the bill to $1 million per year, instead of the $114 million in the bill as reported. This is critical, in terms of controlling Federal spending. Id. at 28,259 (remarks of Rep. Panetta). Had such comments reflected congres­ sional understanding of the intended effect of the appropriations restrictions ulti­ mately enacted under section 6002, they would arguably provide some support for DO T’s contentions that permitting Trustee claims to be paid from the Fund without further appropriation conflicts with fiscal restraint objectives underlying the measure. The remarks of Representatives Jones and Panetta, however, were made before the Conference Committee modified the Jones Amendment to provide explicitly that the payment of claims from the Fund pursuant to section 1012(a)(4) of the Act would not require a further appropriation. Rather, the remarks in question were aimed at a fundamentally different provision and could not reflect congres­ sional understanding or intent with respect to the substantially different (and less restrictive) appropriations provisions ultimately enacted in section 6002. 4. Finally, it has been argued that congressional inaction with respect to a subse­ quently proposed amendment intended to overturn the Comptroller General’s 200 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 interpretation of OPA’s Fund access provisions should be regarded as a form of legislative ratification of that interpretation. We do not find this line of reasoning persuasive here for a number of reasons. This argument invokes the Supreme Court’s approach in cases such as United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), where the Court explained: Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reason­ ableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legis­ lation specifically designed to supplant it. Id. at 137; Bob Jones University v. United States, 461 U.S. 574, 599-600 (1983) (although “ [n]onaction by Congress is not often a useful guide,” inaction fol­ lowing prolonged and extensive congressional consideration of legislative pro­ posals to overturn an administrative interpretation may produce “ unusually strong” evidence of legislative acquiescence). The cases ascribing significance to legislative inaction are generally premised upon informed congressional acquiescence in a longstanding interpretation by the executive branch agency charged with administering the statute in question. In Bob Jones University, for example, the Court invoked the principle only after stressing that “ for a dozen years Congress has been made aware — acutely aware — o f the IRS rulings o f 1970 and 1971.” 461 U.S. at 599. Here, the ruling in which Congress allegedly acquiesced was considered only by a committee of Congress in early 1996, only a few months after it had been issued in October, 1995, by the Comptroller General. Thus, the circumstances posed here simply do not fit the pattern of the leading cases finding persuasive evidence of acquies­ cence by inaction.15 Moreover, congressional attention to the proposal that would have effectively nullified the Comptroller General’s ruling was not only very brief in duration but limited in nature. The amendment in question, originally proposed as section 204 of S. 1730 during the 104th Congress, would have added section 1012(a)(2) to the existing Fund payment provisions exempted from section 6002’s subsequent l5The limited congressional attention to the Comptroller General opinion at issue here presents the same consider­ ations addressed by the court in Lanehart v Horner, 818 F 2 d 1574 (Fed. C ir 1987), where the court rejected a similar legislative ratification argument concerning an administrative interpretation of federal firefighters’ overtime pay under the Fair Labor Standards Act As the court stated: We find this argument singularly unpcrsuasive in the context of this case. In the cited cases, the issue involved “ considerable public controversy,” or Congress had a “ prolonged and acute awareness” o f the importance of the issue. Bob Jones, 461 U.S. at 601, 103 S. Ct at 2033. The overtime pay of firefighters did not rise to these levels in Congress. Id. at 1579 (citation omitted) 201 Opinions o f the Office o f Legal Counsel in Volume 21 appropriations requirement. It would thus have removed the crucial premise to the Comptroller General’s decision and would have eliminated any doubt that Trustees could recover natural resource damages from the Fund without further appropriation. However, that amendment was modified by the Senate Committee on Environment and Public Works, which approved and reported S. 1730 with an amendment to section 6002 that did not include the appropriations exemption for section 1012(a)(2) and thus did not nullify the Comptroller General’s opinion. See S. Rep. No. 104-292, at 31-32 (1996). In any event, however, S. 1730 was never taken up by the full Senate or the House. Consequently, congressional consideration of the proposal to override the Comptroller General’s interpretation was apparently limited to action on a single amendment by a single committee of the Senate.16 In Bob Jones University, the Court departed from the general ru le 17 that congressional inaction “ is not often a useful guide” only after stressing that “ few issues have been the subject of more vigorous and widespread debate and discus­ sion in and out of Congress” than the educational segregation issue implicated by the IRS ruling under consideration there. 461 U.S. at 599. In light of the lengthy and widespread congressional exposure to legislation concerning that ruling, the Court observed: It is hardly conceivable that Congress — and in this setting, any Member of Congress — was not abundantly aware of what was going on. In view of its prolonged and acute awareness of so impor­ tant an issue, Congress’ failure to act on the bill proposed on this subject provides added support for concluding that Congress acquiesced in the IRS rulings in 1970 and 1971. Id. at 600-01. Here, the record does not demonstrate anything like the prolonged, acute, and widespread congressional consideration of the Comptroller General’s 1995 opinion that provides the necessary justification for ascribing significance to congressional action under the holding of Bob Jones University. See also Missouri v. Andrews, 787 F.2d 270, 287 (8th Cir. 1986) (rejecting argument that failure to amend statute ratified agency’s interpretation of statute where the “ record fails to show the degree of congressional approval necessary to override the intent of the . . . Con­ gress” ), a ff’d sub nom. ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988). Moreover, the interpretation at issue here was not longstanding and, indeed, was never incorporated in the governing agency regulations. Finally, the interpretation 16 The 104th Congress did enact some unrelated amendments to OPA as part of the Coast Guard Authorization Act of 1996, Pub L No 104-324, 110 Stat 3901, but the amendment originally intended to overturn the Comptroller G eneral’s ruling on Trustee access to the Fund was not included in that legislation See S. Rep. No. 104-160 (1995), reprinted in 1996 U S C C A N. 4239 17See Brecht v Abraham son, 507 U S 619, 632 (1993) 202 Funds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990 is at odds with the language of the statute and is not supported by the legislative history. Under such circumstances, the fact that Congress did not enact legislation overturning the Comptroller General’s interpretation does not provide persuasive evidence of congressional ratification. Considering the legislative record as a whole, therefore, we are unable to con­ clude that Congress’s response to proposed amendments to section 6002 of OPA offered in the 104th Congress provides significant legislative evidence supporting the Comptroller General’s opinion concerning Trustee access to the Fund. Conclusion In light of all the foregoing considerations, we conclude that section 1012(a)(4) of OPA authorizes payments from the Fund to natural resource trustees on claims for uncompensated natural resource damages pursued in accordance with section 1013. Under section 6002(b) of OPA, such payments may be made from the Fund without the need for further enactment of appropriations. RANDOLPH D. MOSS Deputy Assistant Attorney General Office o f Legal Counsel 203

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Congressional Request For Appointment Calendars of a Former GSA Official U n d er G eneral Services A dm inistration records retention regulations, the appointm ent calendars o f current and form er GSA officials are personal records and personal property, rather than official reco rd s and government property. Accordingly, under the facts presented, the G SA sho u ld retu rn a form er GSA o fficial’s calendars to him . T he form er official, not the G SA , is resp o n sib le fo r responding to a congressional com m ittee’s request for the calendars. February 15, 1990 M em orandum G O eneral p in io n fo r t h e S e r v ic e s A G eneral Cou n sel d m in is t r a t io n You have asked for our opinion as to whether, for purposes of an over­ sight request received from the Senate Committee on Governmental Affairs (“the Committee”), the appointment calendars of a former official of the General Services Administration (“GSA”) are government property or the official’s personal property. As discussed below, we have concluded that in these circumstances the calendars are the official’s personal property and should be returned to the official.1 I. Statement o f Facts On September 15, 1989, GSA accepted the resignation of a high-level official (“the former official”).2 The former official promptly began his departure activities, including consideration of the disposition of his files, records and other papers. At his request, his secretary, who had maintained his appointment calendars for him at her desk, delivered them to him so that . he could take them with him. Subsequently, by letter dated September 26, 1989, the Committee re­ quested that GSA provide the Committee with certain specified information and documents, including the former official’s appointment calendars. An agency official then asked the former official for the calendars so that GSA could produce them to the Committee. The former official complied with the 1In light of this conclusion, it is not necessary for us to address the question you raised as to the p otential personal liability o f agency officials who participate in a decision to produce the calendars to the Com m ittee. 2T his statem ent o f facts is based on the inform ation presented to this Office in your letter o f October 24, 1989 and orally by your staff. 34 request and supplied the calendars to the GSA official. Before GSA had produced the calendars to the Committee, however, the former official, by means of an October 12, 1989 letter from his attorney, requested that the calendars be returned to him. In the letter he also objected to GSA produc­ ing the calendars to the Committee, on the grounds that the calendars were his personal property and disclosure to Congress in these circumstances would violate his rights. After receiving the former official’s letter, GSA advised the Committee that it was withholding the calendars pending review by GSA and this Office of the former official’s position. II. Discussion The question presented is whether the former official’s appointment cal­ endars should be treated as government property or personal property for purposes of the Committee’s oversight request. More specifically, the ques­ tion is whether on September 26, 1989 — the date the Committee requested the calendars — they were government property (with respect to which GSA was responsible for responding to the Committee) or the former official’s personal property (with respect to which the former official was responsible for responding to the Committee). Under GSA’s records retention regulations, only “official records” (as defined in the regulations) are government property: “All Federal em­ ployees must understand that official records belong to the Government, not to any individual . . . ” GSA Order entitled “GSA Records Maintenance and Disposition System,” Order OADP1820.2CHGE76, ch. 2, § 1 (Aug. 12, 1985). The section of the regulations entitled “Distinction between official and personal records” makes it clear that appointment calendars are personal records rather than official records: Personal calendars, appointment books, schedules, and diaries showing meetings, appointments, trips, and other activities of a high-level official solely for the convenience of the highlevel official in managing his or her time are personal records. Documents such as these may be disposed of at the discretion of the official. Id., ch. 2, § 4(b)(3). Thus, the appointment calendars of high-level GSA officials are not gov­ ernment property. Rather, they are “personal records . . . [that] may be disposed of at the discretion of the official.” Id. In our view, the actions the former official took, prior to the Committee’s request, to dispose o f the calendars by taking them with him when he departed the agency clearly 35 constituted the exercise of the official’s right under the GSA regulations to treat the calendars as personal property and dispose of them as he wishes. We therefore conclude that at the time the Committee requested the cal­ endars they were the personal property of the former official and not government property. Accordingly, in these circumstances the former offi­ cial and not GSA is responsible for responding to the Committee’s request for the calendars. They should be returned to the former official.3 LYNDA GUILD SIMPSON Deputy Assistant Attorney General Office o f Legal Counsel 5 T hese conclusions are unaffected by the fact that after the Com m ittee’s request was received the form er official supplied the calendars to the agency for production to the Committee. The calendars w ere his personal property at the time o f the request, and any apparent consent to perm it GSA to produce the calendars to the Committee w as clearly retracted by the October 12, 1989 letter from the o fficial’s attorney. 36

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March 4, 1977 77-10 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Drug Enforcement Administration’s Authority to Impose Civil Penalties This is in response to your memorandum posing the question whether the Administrator of the D rug Enforcement Administration (DEA ) has the pow er to fix and settle civil penalties under 21 U.S.C. § 842(c)(1), as amended by the Comprehensive D rug Abuse Prevention and Control A ct o f 1970, Pub. L. No. 91-513, § 402(c)(1), 84 Stat. 1236, 1262, without instituting litigation to obtain an enforceable judgment. We are o f the opinion that it does not. Under § 842(c)(1), which imposes a civil penalty, the Federal district courts have jurisdiction to enforce the penalty. That jurisdiction is both original and exclusive, as appears from the face of the A ct and from its legislative history. The House Report on the Comprehensive Drug Abuse Prevention and Control A ct of 1970 described jurisdiction to enforce § 402 in the following terms: “The U.S. District Court or otherwise proper U.S. court having jurisdiction of matters o f this nature shall have jurisdiction to enforce this paragraph.” H.R. Rep. No. 91-1444 (Part 1), 91st Cong., 2d Sess. 47 (1970), reprinted in [1970] U.S. Code Cong. & Ad. News 4566, 4615. M oreover, it is evident from the structure of the Act that Congress intended penalties to be imposed through the courts rather than through administrative action by the Attorney General or his designees. F or example, § 508 of the Act, listing powers of enforcement person­ nel, does not include any authority whatever to adjudicate violations of the statute or to impose penalties. Section 511, respecting forfeitures of property, requires that they be made in accordance with governing rules of judicial procedure unless incident to a valid warrant, arrest, prior judgment, or equivalent authority. Section 512(a) authorizes the courts—but not the Attorney General or the Administrator—to issue injunctions to forbid violations of Title II o f the Act (which includes 24 § 402), in accordance with the Federal Rules of Civil Procedure. Sec­ tion 512(b) provides jury trials for violators. As a final example, § 513 authorizes persons threatened with enforcement action to show cause why they should not be prosecuted. The House Report states that “[t]his proceeding is generally intended to cover technical violations by registrants, and allows for administrative compliance, if possible, before court action is initiated.” Only the courts of the United States can impose the penalties de­ scribed in § 402; the A ct contains no indication to the contrary. T here­ fore, the Administrator may not rely on the authority of 31 U.S.C. §§ 952 and 953 to “settle, compromise, or close claims” arising out of the activities of DEA. While those provisions would support D E A action to collect a civil penalty once imposed, they do not empower the Administrator to levy it himself. The claims-collection procedure cannot be invoked until a penalty has been imposed by a court of proper jurisdiction.1 In summary, the Administrator is not authorized to adjudicate viola­ tions of 21 U.S.C. § 842 or to impose civil penalties under § 842(c)(1). Jurisdiction to do so is vested exclusively in the courts o f the United States. The appropriate means to enforce the civil penalties provided for in that section are through a civil action in district court. If a judgment and penalty result, the Administrator may then proceed to collection or settlement. John M . H armon Acting Assistant Attorney General Office o f Legal Counsel 1 T h e term “claims” has a m ore restricted m eaning than m ight at first be thought. 4 C F R § 102.6, for exam ple, does not serve to define “claims” generally. It simply states that agencies seeking the collection o f statutory penalties, forfeitures, o r debts provided as an enforcem ent aid should consider suspension o r revocation o f licenses on the p a rt of violators w h o delay in making paym ent. A num ber o f F ederal agencies have express statutory authority to adjudge violations o f law or reguhion and to impose statutory penalties. D E A does not. 25

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March 4, 1977 77-10 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL Drug Enforcement Administration’s Authority to Impose Civil Penalties This is in response to your memorandum posing the question whether the Administrator of the D rug Enforcement Administration (DEA ) has the pow er to fix and settle civil penalties under 21 U.S.C. § 842(c)(1), as amended by the Comprehensive D rug Abuse Prevention and Control A ct o f 1970, Pub. L. No. 91-513, § 402(c)(1), 84 Stat. 1236, 1262, without instituting litigation to obtain an enforceable judgment. We are o f the opinion that it does not. Under § 842(c)(1), which imposes a civil penalty, the Federal district courts have jurisdiction to enforce the penalty. That jurisdiction is both original and exclusive, as appears from the face of the A ct and from its legislative history. The House Report on the Comprehensive Drug Abuse Prevention and Control A ct of 1970 described jurisdiction to enforce § 402 in the following terms: “The U.S. District Court or otherwise proper U.S. court having jurisdiction of matters o f this nature shall have jurisdiction to enforce this paragraph.” H.R. Rep. No. 91-1444 (Part 1), 91st Cong., 2d Sess. 47 (1970), reprinted in [1970] U.S. Code Cong. & Ad. News 4566, 4615. M oreover, it is evident from the structure of the Act that Congress intended penalties to be imposed through the courts rather than through administrative action by the Attorney General or his designees. F or example, § 508 of the Act, listing powers of enforcement person­ nel, does not include any authority whatever to adjudicate violations of the statute or to impose penalties. Section 511, respecting forfeitures of property, requires that they be made in accordance with governing rules of judicial procedure unless incident to a valid warrant, arrest, prior judgment, or equivalent authority. Section 512(a) authorizes the courts—but not the Attorney General or the Administrator—to issue injunctions to forbid violations of Title II o f the Act (which includes 24 § 402), in accordance with the Federal Rules of Civil Procedure. Sec­ tion 512(b) provides jury trials for violators. As a final example, § 513 authorizes persons threatened with enforcement action to show cause why they should not be prosecuted. The House Report states that “[t]his proceeding is generally intended to cover technical violations by registrants, and allows for administrative compliance, if possible, before court action is initiated.” Only the courts of the United States can impose the penalties de­ scribed in § 402; the A ct contains no indication to the contrary. T here­ fore, the Administrator may not rely on the authority of 31 U.S.C. §§ 952 and 953 to “settle, compromise, or close claims” arising out of the activities of DEA. While those provisions would support D E A action to collect a civil penalty once imposed, they do not empower the Administrator to levy it himself. The claims-collection procedure cannot be invoked until a penalty has been imposed by a court of proper jurisdiction.1 In summary, the Administrator is not authorized to adjudicate viola­ tions of 21 U.S.C. § 842 or to impose civil penalties under § 842(c)(1). Jurisdiction to do so is vested exclusively in the courts o f the United States. The appropriate means to enforce the civil penalties provided for in that section are through a civil action in district court. If a judgment and penalty result, the Administrator may then proceed to collection or settlement. John M . H armon Acting Assistant Attorney General Office o f Legal Counsel 1 T h e term “claims” has a m ore restricted m eaning than m ight at first be thought. 4 C F R § 102.6, for exam ple, does not serve to define “claims” generally. It simply states that agencies seeking the collection o f statutory penalties, forfeitures, o r debts provided as an enforcem ent aid should consider suspension o r revocation o f licenses on the p a rt of violators w h o delay in making paym ent. A num ber o f F ederal agencies have express statutory authority to adjudge violations o f law or reguhion and to impose statutory penalties. D E A does not. 25

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Application of 18 U.S.C. § 207(c) to Proposed Communications Between Retired Navy Flag Officer and Marine Corps Commanders in Iraq Regarding Security Issues Although more detailed information is needed to make a complete determination in this factsensitive area, it appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed communications between a retired Navy flag officer and Marine Corps commanders regarding the security situation in Iraq. September 13, 2005 MEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE NAVY Through the General Counsel of the Department of Defense, you have asked for our opinion whether 18 U.S.C. § 207(c) (2000) prohibits certain proposed communications between a retired Navy flag officer, now employed by a defense contractor under contract to provide services to the United States Air Force and Army Corps of Engineers in Iraq, and United States Marine Corps commanders. See Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from William J. Haynes II, General Counsel, Department of Defense (Aug. 17, 2005). These communications “would seek to effect changes . . . in the current state of security” in parts of Iraq and to “make recommendations” about procedures for pursuing the insurgents responsible for attacks on United States military personnel and private contractors. Memorandum for the Assistant Attorney General, Office of Legal Counsel, from Alberto J. Mora, General Counsel of the Navy, Re: Request for Legal Opinion at 1 (Aug. 10, 2005) (“Mora Memorandum”). Although more detailed information is needed to make a complete determination in this fact-sensitive area, it appears that at least some of the proposed communications would be forbidden by section 207(c). I. A rear admiral retired from the Navy and became employed as the President of a company (“Company”) whose parent entity (“Parent”) is currently under contract with the United States Air Force and United States Army Corps of Engineers to provide construction and other services in Iraq. * As President of the Company, the retired officer oversees construction of two bases that the firm is building for the new Iraqi army in an area of the country under the responsibility of the United States Multi-National Force-West (“MNF-W”). The MNF-W command, com* Editor’s Note: For privacy reasons, the name and affiliation of the officer in question have been redacted from the published version of this opinion. 159 Opinions of the Office of Legal Counsel in Volume 29 posed primarily of Marine Corps personnel, reports directly to CENTCOM, which in turns reports to the Secretary of Defense. In recent months, attacks by Iraqi insurgents have killed or injured a number of the Company’s employees and subcontractors. Given the security situation, the Company seeks to coordinate more effectively with the MNF-W commanders responsible for securing the area in which the Company is working to fulfill its contractual obligations. Given the retired officer’s military experience, the Parent would like him to communicate directly with MNF-W personnel on these matters. More specifically, the Parent wants the retired officer to provide information related to his observations about security and defense, areas within the retired officer’s expertise. The Parent desires for the retired officer to ask questions and seek information related to how the Parent’s employees can better protect themselves, including communications regarding the Parent’s scope of work and its coordination of on-site activity. Letter for Marilyn L. Glynn, Acting Director, Office of Government Ethics, from Michael R. Rizzo, McKenna, Long & Aldridge LLP, Re: Request for Formal Advisory Opinion Pursuant to 5 CFR 2638.301 et seq. at 3 (May 31, 2005) (“Rizzo Letter”). The Parent believes that effective communications on these issues between the retired officer and Marine Corps personnel is necessary to ensure the security of the Company’s employees and will potentially save lives. Id. II. Section 207(c) of title 18 provides criminal penalties for a “senior [officer] of the executive branch” who within 1 year after the termination of his or her service or employment as such officer or employee, knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of the department or agency in which such person served within 1 year before such termination, on behalf of any other person (except the United States), in connection with any matter on which such person seeks official action by any officer or employee of such department or agency. 18 U.S.C. § 207(c)(1). Thus, as a recently retired senior naval officer, 1 the retired officer is barred from making certain types of communications with “any officer 1 There is no dispute that flag officers such as the retired officer qualify as “senior personnel” within the meaning of section 207(c). See 18 U.S.C. § 207(c)(2)(iv). 160 Application of 18 U.S.C. § 207(c) to Communications Regarding Security Issues or employee” of the Department of the Navy during the statute’s one year “cooling off” period. Cf. 5 C.F.R. § 2641, app. B (2005) (designating the Department of the Navy as “distinct and separate” from other components of the Department of Defense for purposes of section 207). And because the Marine Corps is part of the Department of the Navy, see 32 C.F.R. § 700.204(a) (2004), the prohibition extends to communications between the retired officer and Marine Corps personnel in Iraq. At the same time, however, “[s]ection 207 does not by its terms forbid a former Executive Branch official from communication with his former agency in all circumstances.” Memorandum for Stuart M. Gerson, Assistant Attorney General, Civil Division, from Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel at 2 (Mar. 15, 1993) (“Gerson Memorandum”). Instead, a communication is prohibited only if it is made (1) “with the intent to influence”; (2) “on behalf of any other person (except the United States)”; and (3) “in connection with any matter on which such person seeks official action.” In addition, the statute offers a safe harbor to former senior officials who make or provide a statement “which is based on the individual’s own special knowledge in the particular area that is the subject of the statement, if no compensation is thereby received.” 18 U.S.C. § 207(j)(4) (emphasis added). Based on the limited factual information available to us, we believe that most of the communications proposed by the retired officer fall within section 207(c)’s prohibition and are not protected by the “special knowledge” exception. That conclusion, however, does not apply to situations in which the retired officer would do nothing more than request generally available factual information from MNF-W relating to security or other matters relevant to the Company’s work. In the first place, the role contemplated for Mr. Kubic is not that of a behindthe-scenes operative, but rather is a direct and personal one in which Mr. Kubic would be speaking to the Marine Corps officers with the intention that the information or views conveyed be attributed to him. Accordingly, Mr. Kubic would undoubtedly be making “communications” within the meaning of section 207(c). See “Communications” Under 18 U.S.C. § 207, 25 Op. O.L.C. 59, 62 (2001) (construing section 207(c) to include an attribution requirement). Moreover, as we understand the retired officer’s proposal, the purpose of at least some of those communications would be to persuade the commanders in MNF-W to use their forces in ways that the retired officer believes will provide better protection for both civilian contractors (including the Company’s employees) and military personnel. (We take it that this understanding is what the Rizzo Letter means when it refers to “discussions regarding scope of work and coordination of on-site activity issues.” Rizzo Letter at 2. 2) Insofar as he seeks to engage in 2 In your memorandum requesting a legal opinion, you describe the retired officer’s proposal this way: “Through personal communication with local Marine commanders, if authorized, he would seek to effect changes in Marine Corps policy or practice regarding the current state of security around 161 Opinions of the Office of Legal Counsel in Volume 29 such communications, the retired officer would clearly be “trying to influence the activities of the agency involved,” and thus would satisfy the scienter and “official action” requirements of section 207(c). Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice Represents a Party, 17 Op. O.L.C. 37, 43 (1993); see also 5 C.F.R. § 2637.204(e) (2005) (section 207(c)’s prohibition on attempting to influence “applies to situations in which there is an appreciable element of actual or potential dispute or an application or submission to obtain Government rulings, benefits or approvals”). 3 After all, decisions about how to deploy troops, and about how best to provide protection to military and civilian personnel in a war zone, are “official actions” of a branch of the Armed Forces. Direct communications with members of that branch by a former senior officer made with the goal of influencing those decisions come within the scope of section 207(c). A different result follows, however, where the retired officer would merely be requesting generally available factual information from MNF-W commanders. OGE has long taken the position, and we have agreed, that a communication aimed solely at eliciting generally available information from a government agency is not made with the requisite “intent to influence” official agency action, and thus is not prohibited by section 207(c). See 5 C.F.R. § 2637.204(e); Memorandum for Component Heads, from Timothy E. Flanigan, Assistant Attorney General, Office of Legal Counsel at 8 (Nov. 18, 1992) (noting that section 207(c) “does not apply to requests for factual information”); Memorandum for Tony Schall, Assistant to the Attorney General, from Timothy Flanigan, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Post Employment Restrictions at 1 (Aug. 15, 1991) (“Schall Memorandum”) (same). The retired officer thus remains free under section 207(c) to seek information or advice from the Marines regarding such matters as the security situation or the steps being taken by the military (or that the Company should take) to protect civilian contractors in Iraq. Although the sparse factual record before us makes it impossible to determine the extent to which the retired officer’s proposed communications would actually fall into this category, it seems that at least some may do so. See, e.g., Rizzo Letter at 3 (“the Parent desires for the retired officer to ask questions and seek information related to how the Parent’s employees can better protect themselves.”). We caution the retired officer, however, that especially where he contemplates communicating with Marine Corps officers himself, the line between Camp India and make recommendations about procedures for pursuing the AIF [Anti-Iraqi Forces] responsible for the mortar attacks.” Mora Memorandum at 1. 3 The Office of Government Ethics (“OGE”) regulations contained in 5 C.F.R. pt. 2637 were written with respect to section 207 as it existed prior to its amendment in 1989, but both OGE and this Office have continued to rely on them when interpreting those portions of the statute that were unchanged by the amendments. See “Communications” Under 18 U.S.C. § 207, 25 Op. O.L.C. at 60 n.3. 162 Application of 18 U.S.C. § 207(c) to Communications Regarding Security Issues seeking information and providing advice or otherwise attempting to influence decisions or actions may not always be clear, and that it is impermissible to use factual inquiries in an effort to influence the agency to take particular official acts. See Schall Memorandum at 2. Next, we must consider whether the proposed communications—at least the ones that are intended to influence—will be made “on behalf of” someone other than the retired officer (or the United States). “By the express terms of the statute, a former officer or employee is free to communicate information or advice . . . as long as he does not do so ‘on behalf of any other person.’” Gerson Memorandum at 2. We have previously opined that this language limits the reach of section 207 to those “communications that are made by one who is acting as an agent or attorney, or in some other representational capacity for another.” Memorandum for Michael Boudin, Deputy Assistant Attorney General, Antitrust Division, from J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. § 207(a) to Pardon Recommendation Made by Former Prosecutor at 6 (Oct. 17, 1990) (“Boudin Opinion”). 4 The “representational relationship” required by the statute “entails at least some degree of control by the principal over the agent who acts on his or her behalf.” Id. Here, because it seems that the retired officer would be speaking not on his own behalf, but rather at the behest and for the benefit of the Company, the statements he proposes to make would clearly satisfy this test. As we understand the situation, the retired officer’s communications with MNF-W would be made in his capacity as President of ECCI and would be designed to help improve security in the parts of Iraq where the Company’s personnel are working. In that context, it is difficult to deny that the retired officer would be acting “subject to the control or direction” of the firm, and thereby as the firm’s agent or representative. Boudin Opinion at 6. Simply put, in this situation the retired officer would not “speak[] for himself alone.” Gerson Memorandum at 3. Instead, he would speak for the Company and his efforts to use direct communications with his former department to influence agency action would fall squarely within the prohibitory terms of section 207(c). Finally, we address the “special knowledge” safe harbor contained in section 207(j)(4). That exception allows a former official to make statements based on the individual’s “own special knowledge,” but only if “no compensation is thereby received.” Even assuming that the security issues that would be the subject of the retired officer’s statements would come within his own special knowledge, we agree with OGE that “the receipt of a salary, or other compensation for doing one’s job generally, is sufficient, if the statement at issue is made as part of the 4 Although the Boudin Opinion addressed only 18 U.S.C. § 207(a), the language it construed—“on behalf of any other person”—also appears in section 207(c), where it is used in the same way. Relying on the interpretive canon that a phrase that appears in multiple places in the same statute should be given the same meaning in each, we have previously applied the Boudin Opinion’s analysis to section 207(c). See Gerson Memorandum at 3 & n.3. 163 Opinions of the Office of Legal Counsel in Volume 29 individual’s duties for his non-federal employer.” Letter for Michael R. Rizzo, McKenna, Long & Aldridge LLP, from Marilyn L. Glynn, Acting Director, Office of Government Ethics at 5 (June 8, 2005). We think the best reading of the phrase “no compensation is thereby received” is that it excludes statements made in the ordinary course of an agency relationship for which the speaker receives compensation. In other words, if a former official is paid to represent the interests of a particular person or company, and makes statements aimed at advancing that end, he receives compensation “thereby,” even if he is not paid on a statement-bystatement basis. Thus, as a salaried employee of the Company who would be communicating with the Marine commanders in the course of his employment, the retired officer may not take shelter in section 207(j)(4). A contrary conclusion— that a statement may be protected by section 207(j)(4) so long as the speaker is not paid specifically for making it—would impermissibly convert the exception into a mere accounting rule. It would suggest, for instance, that a lawyer could represent a client before the same agency where the lawyer was previously a senior official so long as he received a flat fee rather than an hourly rate. We do not think Congress intended to allow the statutory ban on such communications to be capable of evasion merely by clever bookkeeping. We certainly understand, and are sympathetic to, the retired officer’s pleas that he and his firm face a conflict between the federal ethics laws and the need to take steps to protect his employees from further danger. As described above, however, at least some of the communications proposed by Mr. Kubic would be covered by the language of section 207(c). And, although it contains a number of express exceptions for particular types of communications, see, e.g., 18 U.S.C. § 207(j), the statute makes no exception for emergency situations. Nor is there an exception for communications made in war zones involving issues of safety and security. Given that Congress has not seen fit to legislate such exceptions, we are not at liberty to interpret such provisions into existence merely to bring about a desirable result. This conclusion about the scope of section 207 does not leave the Company unable to communicate with military personnel in Iraq in order to help protect its personnel. Any Company employee not covered by section 207(c) remains free to discuss security matters (or any other issue) with MNF-W, and certainly may seek to persuade the military commanders to take whatever protective actions are thought necessary. Indeed, so long as he does not act with the intention that the views or information conveyed to Marine officers be attributed to him, the retired officer may play a “behind the scenes” role in such communications. “Communications” Under 18 U.S.C. § 207, 25 Op. O.L.C. at 63 (observing that under section 207(c), “former officials can sell their expertise to interested clients, and their clients can present all substantive information or views they wish to federal agencies”). In addition, as described above, the retired officer himself may seek generally available factual information from any military officer or department. And, because the Navy is separate from the Department of Defense for purpose of 164 Application of 18 U.S.C. § 207(c) to Communications Regarding Security Issues the federal ethics laws, see 5 C.F.R. § 2641, app. B, the retired officer may always contact and attempt to influence officers and employees of military departments other than the Department of the Navy. STEVEN G. BRADBURY Acting Assistant Attorney General Office of Legal Counsel 165

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(Slip Opinion) Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office Section 105(a) of title 3, U.S. Code, which authorizes the President to appoint employees in the White House Office “without regard to any other provision of law regulating the employment or compensation of persons in the Government service,” exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. § 3110. January 20, 2017 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether section 3110 of title 5, U.S. Code, which forbids a public official from appointing a relative “to a civilian position in the agency . . . over which [the official] exercises jurisdiction or control,” bars the President from appointing his son-in-law to a position in the White House Office, where the President’s immediate personal staff of advisors serve. We conclude that section 3110 does not bar this appointment because the President’s special hiring authority in 3 U.S.C. § 105(a) exempts positions in the White House Office from section 3110. A decision of the D.C. Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), lays out a different, but overlapping, route to the same result. According to the reasoning of Haddon, section 3110 does not reach an appointment in the White House Office because section 3110 covers only appointments in an “agency,” which the statute defines to include “Executive agenc[ies],” and the White House Office is not an “Executive agency” within the definition generally applicable to title 5. Although our analysis does not track every element of the D.C. Circuit’s reasoning about the meaning of “Executive agency,” we believe that Haddon arrived at the correct outcome and that our conclusion here—that, because of the President’s special hiring authority for the White House Office, section 3110 does not forbid the proposed appointment—squares with both the holding and a central part of the analysis in that case. I. Section 105(a) of title 3 authorizes the President “to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service,” as long as the employees’ pay is within listed 1 Opinions of the Office of Legal Counsel in Volume 41 salary caps. 3 U.S.C. § 105(a)(1). These employees are to “perform such official duties as the President may prescribe.” Id. § 105(b)(1). We understand that most White House Office employees are appointed under section 105 or a similar hiring authority, such as 3 U.S.C. § 107 (the authorization for domestic policy staff ). See Authority to Employ White House Office Personnel Exempt from the Annual and Sick Leave Act Under 5 U.S.C. § 6301(2)(x) and (xi) During an Appropriations Lapse, 36 Op. O.L.C. __, at *5 (Apr. 8, 2011); Authority to Employ the Services of White House Office Employees During an Appropriations Lapse, 19 Op. O.L.C. 235, 236 (1995). Such employees are the President’s “immediate personal staff ” and work in close proximity to him. Meyer v. Bush, 981 F.2d 1288, 1293 & n.3 (D.C. Cir. 1993). The appointment at issue here, we understand, would be under 3 U.S.C. § 105(a). Section 3110 of title 5, also known as the anti-nepotism statute, states that “[a] public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.” 5 U.S.C. § 3110(b). The statute expressly identifies the President as one of the “public official[s]” subject to the prohibition, and a son-in-law is a covered “relative.” Id. § 3110(a)(2), (a)(3). Moreover, under Article II of the Constitution, the President exercises “jurisdiction or control” over the White House Office as well as over the rest of the Executive Branch. See Myers v. United States, 272 U.S. 52, 163–64 (1926); Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977). Less certain is whether the White House Office is an “agency”—a term that section 3110 defines to include an “Executive agency,” thereby calling up the definition of “Executive agency” generally applicable to title 5, see 5 U.S.C. § 3110(a)(1)(A); id. § 105. But whether or not the White House Office meets this definition (a subject to which we will return in Part II, infra), we believe that the President’s special hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid. Section 3110 prohibits the appointment of certain persons to positions of employment in the federal government. It is therefore a “provision of law regulating the employment . . . of persons in the Government ser- 2 Application of Anti-Nepotism Statute to Presidential Appointment in White House vice.” 1 Under section 105(a), the President can exercise his authority to appoint and fix the pay of employees in the White House Office “without regard to” such a law. 3 U.S.C. § 105(a)(1). This authority is “[s]ubject” only to the provisions of subsection (a)(2), which limit the number of White House employees the President may appoint at certain pay levels. See id. § 105(a)(2). Thus, according to the most natural and straightforward reading of section 105(a), the President may appoint relatives as employees in the White House Office “without regard to” the antinepotism statute. This reading of the two statutes gives section 105(a) a meaning no more sweeping than its words dictate. The ordinary effect of “without regard” language is to negate the application of a specified class of provisions. In American Hospital Association v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987), for example, the D.C. Circuit declared that the “plain meaning” of a “without regard” exemption, which there enabled the Secretary of Health and Human Services (“HHS”) to carry out his contracting authority “without regard to any provision of law relating to the making, performance, amendment or modification of contracts of the United States,” was “to exempt HHS from . . . the vast corpus of laws establishing rules regarding the procurement of contracts from the government,” although not from the requirements of the Administrative Procedure Act. Id. at 1054; see also Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (holding that a statutory direction to issue a rule “without regard to any other provision of statute or regulation that applies to issuance of such rule” effectively changed the Endangered Species Act); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174–75 (9th Cir. 2012) (reaching the same conclusion about a direction to issue a rule “without regard to any other provision of statute or regulation”); cf. Crowley Caribbean Transport, Inc. v. United States, 865 F.2d 1281, 1282–83 (D.C. Cir. 1989) (noting, in interpreting an authorization to the President to take certain action “notwithstanding any other provision of this chapter or any other Act,” that a “clearer statement is difficult to imagine,” and declining to “edit” the language to add an implied exemption). 1 Subsection (c) of section 3110, which states that an individual appointed, employed, promoted, or advanced in violation of the statute’s prohibition is “not entitled to pay,” 5 U.S.C. § 3110(c), may also make section 3110 a “provision of law regulating the . . . compensation of persons in the Government service” rendered inapplicable by section 105(a). 3 Opinions of the Office of Legal Counsel in Volume 41 Applying the “without regard” language, our Office has interpreted section 105(a) as a grant of “broad discretion” to the President “in hiring the employees of [the White House Office]”; the provision, we have said, “reflect[s] Congress’s judgment that the President should have complete discretion in hiring staff with whom he interacts on a continuing basis.” Applicability of the Presidential Records Act to the White House Usher’s Office, 31 Op. O.L.C. 194, 197 (2007); see also Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, Re: Presidential Authority under 3 U.S.C. § 105(a) to Grant Retroactive Pay Increases to Staff Members of the White House Office at 2–3 (July 30, 1993) (section 105(a)’s “sweeping language” gives the President “complete discretion” in adjusting pay of White House Office employees “in any manner he chooses”). That congressional intent is manifest in the House and Senate committee reports accompanying the 1978 legislation by which Congress enacted section 105(a). See Pub. L. No. 95-570, 92 Stat. 2445 (1978). Both reports state that the language “expresses the committee’s intent to permit the President total discretion in the employment, removal, and compensation (within the limits established by this bill) of all employees in the White House Office.” H.R. Rep. No. 95-979, at 6 (1978) (emphasis added); S. Rep. No. 95-868, at 7 (1978) (same). Aside from the reference to the compensation limits in subsection (a)(2), that statement is qualified only by the committees’ explanation that section 105(a) “would not excuse any employee so appointed from full compliance with all laws, executive orders, and regulations governing such employee’s conduct while serving under the appointment.” H.R. Rep. No. 95-979, at 6; S. Rep. No. 95-868, at 7 (same). One piece of section 105(a)’s legislative history does point the other way. During the House subcommittee hearing, the General Counsel to the President’s Reorganization Project at the Office of Management and Budget (“OMB”) testified that the language exempting the White House Office (along with other entities in the Executive Office of the President) from the usual rules on hiring and compensation “would not exempt [these entities] from the restrictions under the nepotism statute because of the specific provisions of that act which apply to the President.” Authorization for the White House Staff: Hearings Before the Subcomm. on Employee Ethics and Utilization of the H. Comm. on Post Office and Civil Service, 95th Cong. 20 (1978) (“Authorization for the White House 4 Application of Anti-Nepotism Statute to Presidential Appointment in White House Staff ”) (testimony of F.T. Davis, Jr.). Even if we were prepared to reach a different understanding of section 105(a)’s text based on a single witness statement, but see S&E Contractors, Inc. v. United States, 406 U.S. 1, 13 n.9 (1972) (“In construing laws we have been extremely wary of testimony before committee hearings[.]”), this particular statement does not offer a persuasive basis on which to do so. Although no member of the subcommittee disputed the OMB official’s interpretation, it is far from clear whether the members (and later, the authors of the House and Senate reports) ultimately endorsed his view about the language. The OMB official offered his interpretation after the subcommittee chair asked about the language’s effect on a number of federal laws and authorities, including “the Hatch Act, nepotism law, criminal conflict of interest laws, [and] Executive Order 11222 regulating employee conduct”; the chair explained that she was asking in order to draft the committee report. Authorization for the White House Staff at 20 (question of Rep. Schroeder). But while another of the witness’s assertions ultimately made it into the committee reports—his statement that the language would not affect any laws “dealing with conduct by public officials once they are appointed,” id. (testimony of Mr. Davis), see also H.R. Rep. No. 95-979, at 6; S. Rep. No. 95-868, at 7—his comment about the anti-nepotism statute did not. Cf. Gustafson v. Alloyd Co., 513 U.S. 561, 580 (1995) (“If legislative history is to be considered, it is preferable to consult the documents prepared by Congress when deliberating.”). Moreover, the rationale the OMB official offered for his interpretation—that “specific provisions” of section 3110 “apply to the President”—is not particularly convincing. Because the President exercises “jurisdiction or control” over the entire Executive Branch, section 3110, by its express terms, would seemingly apply to the President’s filling of numerous positions in federal agencies, even if the “without regard to any other provision of law” language carved out a handful of entities in the Executive Office of the President, such as the White House Office. Cf. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993) (“AAPS ”) (suggesting a reading of section 3110 under which “a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant”). In our view, therefore, section 105(a) exempts presidential appointments to the White House Office from the scope of the anti-nepotism statute. 5 Opinions of the Office of Legal Counsel in Volume 41 II. Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), also bears on the question here and might appear to resolve it, albeit through a different route. Relying on arguments that would apply equally to the White House Office, Haddon held that the Executive Residence at the White House is not an “Executive agency” within the title 5 definition. Id. at 1490. Because the prohibition in section 3110 applies, as relevant here, only to appointments in “Executive agenc[ies],” Haddon seems to compel the conclusion that the bar against nepotism would not extend to appointments in the White House Office. Reinforcing this conclusion, though resting on other grounds, an earlier opinion of the D.C. Circuit had expressed “doubt that Congress intended to include the White House” as an “agency” under section 3110. AAPS, 997 F.2d at 905; but see id. at 920– 21 (Buckley, J., concurring in the judgment) (disputing that interpretation of “agency”). The matter, however, is somewhat more complicated. Not every part of the reasoning in Haddon is entirely persuasive, and the court’s rationale extends more broadly than necessary, in our view, to address the question now at hand. Nonetheless, we believe that Haddon lends support to our conclusion that the President may appoint relatives to positions in the White House Office. Haddon held that the Executive Residence, which like the White House Office has a staff appointed under title 3, see 3 U.S.C. § 105(b), is not an “Executive agency” within the title 5 definition. Haddon was considering 42 U.S.C. § 2000e–16, which extends the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964 to employees or applicants for employment “in executive agencies as defined in [5 U.S.C. § 105].” 42 U.S.C. § 2000e–16(a). Under that definition (the same one that governs section 3110), an “Executive agency” means “an Executive department, a Government corporation, and an independent establishment.” 5 U.S.C. § 105. Because the Executive Residence, like the White House Office, is plainly not an “Executive department” or a “Government corporation,” see id. §§ 101, 103, the issue in Haddon came down to whether the Executive Residence is an “independent establishment,” see id. § 104. The D.C. Circuit had two reasons for concluding that the Executive Residence is not an independent establishment and therefore not an Executive agency under 5 U.S.C. § 105. First, the court observed that another 6 Application of Anti-Nepotism Statute to Presidential Appointment in White House statute, 3 U.S.C. § 112, authorizes “[t]he head of any department, agency, or independent establishment of the executive branch of the Government [to] detail, from time to time, employees of such department, agency, or establishment to the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Domestic Policy Staff, and the Office of Administration.” In the court’s view, this phrasing suggested that the listed entities in the Executive Office of the President are not themselves “department[s], agenc[ies], or independent establishment[s].” Haddon, 43 F.3d at 1490 (“That Congress distinguished the Executive Residence from the independent establishments, whatever they may be, suggests that Congress does not regard the Executive Residence to be an independent establishment, as it uses that term.”). Second, the court said that title 5 of the U.S. Code “relates to government organization and employees and prescribes pay and working conditions for agency employees,” while title 3 of the Code “addresses similar concerns with respect to the President’s advisors and the staff of the Executive Residence.” Id. The incorporation of the title 5 definition in section 2000e–16, the court explained, suggests that Congress intended the statute to cover only “title 5” positions—not positions provided for in 3 U.S.C. § 105 and other title 3 authorities. Id. 2 The D.C. Circuit’s first reason may be the less convincing of the two. The wording of the detail statute, 3 U.S.C. § 112, “distinguish[es]” between the sending and receiving entities only insofar as the sending entities are identified generically, while the small group of entities that may receive details, including the Executive Residence and the White House Office, are specifically named. This wording might well be an apt way to authorize a detail without implying anything about the status of the receiving entities. Indeed, Congress elsewhere used similar constructions to provide for transfers between executive departments. Section 2256 of title 7, U.S. Code, declares that the “head of any department” may “transfer to the Department [of Agriculture]” funds to perform certain inspections, analyses, or tests. Similarly, under 22 U.S.C. § 2675, the Secretary of State may “transfer to any department” certain “funds appropriated to 2 Shortly after Haddon, Congress passed the Presidential and Executive Office Accountability Act, Pub. L. No. 104-331, 110 Stat. 4053 (1996), which expressly applies Title VII and other federal civil rights and workplace laws to entities in the Executive Office of the President, including the White House Office and the Executive Residence. See id. § 2(a) (relevant provisions codified at 3 U.S.C. §§ 401, 402, 411). 7 Opinions of the Office of Legal Counsel in Volume 41 the Department of State.” The generic references to “departments” on one side of these transactions could not be read to imply that the entities on the other side, the Departments of Agriculture and State, are not “departments.” The court’s second argument seems stronger, although the court stated it more broadly than the facts of Haddon required. The court apparently viewed the provisions in title 3 as creating a complete substitute for title 5: “while Title 5 relates to government organization and employees and prescribes pay and working conditions for agency employees, Title 3 addresses similar concerns with respect to the President’s advisors and the staff of the Executive Residence.” Haddon, 43 F.3d at 1490 (citation omitted). The court then quoted, in a parenthetical, the “without regard” provision for hiring in the Executive Residence that exactly parallels the one for the White House Office. Id. (quoting 3 U.S.C. § 105(b)(1)). Inasmuch as the plaintiff in Haddon claimed that he had been unlawfully passed over for promotion—that he had not been appointed to a higher position with higher pay—his claim had to do with exactly the subjects identified in 3 U.S.C. § 105(b)(1), “employment or compensation of persons in the Government service.” Section 105(b)(1) could therefore be understood to displace the restrictions in Title VII, even if title 3 did not completely displace all of title 5. Thus, the court’s broader statements about the relationship of title 3 and title 5, though not dicta, went further than necessary to decide the case and further than we need to go here. In any event, our conclusion above—that the President’s special hiring authority in 3 U.S.C. § 105(a) allows him to appoint relatives to the White House Office without regard to section 3110’s bar against nepotism—is consistent with the holding in Haddon and with the court’s reliance on the parallel language in 3 U.S.C. § 105(b)(1). In accordance with Haddon, we believe that the White House Office is not an “Executive agency” insofar as the laws on employment and compensation are concerned. Both the “without regard” language of section 105(a) and the general treatment of the White House Office under title 3 instead of title 5 undergird this conclusion. 3 Having conformed our analysis, to this extent, with the only authoritative judicial guidance bearing on this question, we have no need to delve into the issue whether the White House Office should be consid- 3 We do not address the application of section 3110 to any other component of the government. 8 Application of Anti-Nepotism Statute to Presidential Appointment in White House ered outside of title 5 for all purposes whenever the application of that title is confined to “Executive agenc[ies].” 4 4 We have observed before that the D.C. Circuit’s reasoning in Haddon would seemingly extend to other entities listed in section 112 with special hiring authorities under title 3, including the White House Office. See Memorandum for Gregory B. Craig, Counsel to the President, from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of 5 U.S.C. § 3110 to Two Proposed Appointments by the President to Advisory Committees at 18 (Sept. 17, 2009); Application of 18 U.S.C. § 603 to Contributions to the President’s Re-Election Committee, 27 Op. O.L.C. 118, 118 (2003) (“Section 603 Opinion”). In one circumstance, however, because of features “unique” to the statutory scheme at issue—the Hatch Act Reform Amendments of 1993 (“HARA”)—we have found that the White House Office should be treated as an “Executive agency” under title 5 notwithstanding Haddon. See Section 603 Opinion, 27 Op. O.L.C. at 119 (White House Office employees may make contributions to a President’s authorized re-election campaign by virtue of an exception available to employees in an “Executive agency”). Section 603 of title 18 prohibits “an officer or employee of the United States or any department or agency thereof ” from “mak[ing] any contribution . . . to any other such officer, employee or person . . . if the person receiving such contribution is the employer or employing authority of the person making the contribution.” 18 U.S.C. § 603(a). But section 603(c) exempts from liability “employee[s] (as defined in section 7322(1) of title 5)”—meaning, employees subject to HARA. Section 7322(1), in turn, defines “employee” as “any individual, other than the President and the Vice President, employed or holding office in . . . an Executive agency.” 5 U.S.C. § 7322(1)(A). Several considerations led us in our Section 603 Opinion to confirm a prior opinion treating the White House Office as an “Executive agency” for purposes of section 7322(1), see 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, 19 Op. O.L.C. 103 (1995). First, there would be “no purpose” for section 7322(1)’s express exclusion of the President and the Vice President if they were not understood to be “holding office in . . . an Executive agency.” Section 603 Opinion, 27 Op. O.L.C. at 119. Second, the exception to HARA’s substantive prohibition on partisan political activity in 5 U.S.C. § 7324(b)(2)(B)(i) applies to “employee[s] paid from an appropriation for the Executive Office of the President,” further reflecting HARA’s assumption that such employees are otherwise covered. Section 603 Opinion, 27 Op. O.L.C. at 119. Third, reading section 7322(1) to exclude employees of the White House Office “might be thought to produce highly anomalous results,” as it would follow that White House employees “would be entirely free from the restrictions of [HARA]” and “would be able to engage in all sorts of partisan political activity,” including by “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election,” see 5 U.S.C. § 7323(a)(1). Section 603 Opinion, 27 Op. O.L.C. at 119. Thus, we determined that there are “powerful reasons to conclude that the term ‘Executive agency’ in section 7322(1) does not have the same meaning that section 105 of title 5 generally assigns it (and that cases like Haddon recognize) for the purpose of title 5.” Id. 9 Opinions of the Office of Legal Counsel in Volume 41 III. Our Office, on several occasions, has addressed the application of section 3110 to presidential appointments, including appointments to the White House Office and other entities within the Executive Office of the President. Although our conclusion today departs from some of that prior work, we think that this departure is fully justified. Our initial opinions on the subject drew unwarranted inferences about Congress’s intent from a single witness statement in a congressional hearing. Moreover, the surrounding legal context has been transformed by the subsequent enactment of section 105(a), which expressly and specifically addresses employment within the White House Office, and also by the D.C. Circuit’s decision in Haddon. A. Section 3110 was enacted in 1967. In a 1972 memorandum, our Office concluded that the statute would bar the President from appointing a relative “to permanent or temporary employment as a member of the White House staff.” Memorandum for John W. Dean, III, Counsel to the President, from Roger C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Applicability to President of Restriction on Employment of Relatives at 1 (Nov. 14, 1972) (“Cramton Memo”). The Cramton Memo is brief but unequivocal: section 3110, we said, “seems clearly applicable to . . . positions on the White House staff.” Id. at 2. In 1977, we advised that section 3110 would preclude the President from appointing the First Lady to serve as chair of the President’s Commission on Mental Health (“Mental Health Commission”), whether with or without compensation. See Memorandum for Douglas B. Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the Commission on Mental Health (Feb. 18, 1977) (“Mental Health Commission Memo I”) (referencing attached Memorandum for John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: Legality of the President’s Appointing Mrs. Carter as Chairman of the Commission on Mental Health (Feb. 17, 1977) (“Mental Health Commission Memo II”)). We determined that the Mental Health Commission, which would be established by executive order and assigned specific authorities, would “clearly” qualify as an independent 10 Application of Anti-Nepotism Statute to Presidential Appointment in White House establishment within the “comprehensive” meaning of that term. Mental Health Commission Memo I. Our analysis noted, however, that the funding for the Commission would come from an annual appropriation for the Executive Office of the President covering “Unanticipated Needs,” and we accordingly considered the effect of language in that appropriation that, presaging section 105(a), authorized the President to hire personnel “without regard to any provision of law regulating employment and pay of persons in the Government service.” Mental Health Commission Memo II, at 5–6. We ultimately concluded that the appropriation language did not override section 3110. Although we did not say that the Mental Health Commission would be located in the White House Office specifically, our analysis suggested that our conclusion about the appointment would have been the same, whether or not the position was located there. See id. Shortly afterward, the White House asked us to answer that very question: whether section 3110 applied to the contemplated appointment of the President’s son to serve as an unpaid assistant to a member of the White House staff. See Memorandum for the Attorney General from John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: Employment of Relatives Who Will Serve Without Compensation (Mar. 23, 1977) (“White House Aide Memo I”) (referencing attached Memorandum for John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel, Re: Appointment of President’s Son to Position in the White House Office (Mar. 15, 1977) (“White House Aide Memo II”)). The Civil Service Commission, the predecessor of the Office of Personnel Management, had advanced several arguments why section 3110 did not forbid the President’s appointment of relatives to his personal staff. See White House Aide Memo I, at 1. Reaffirming the points made in the Mental Health Commission Memos, however, our Office concluded that the statute also covered the proposed appointment. Once again, we rejected an argument that the language in the annual appropriation for the White House Office (i.e., the “without regard” language) exempted those appointments from section 3110. White House Aide Memo II, at 1–3. In 1983, we were asked whether the President could appoint a relative to a Presidential Advisory Committee on Private Sector Initiatives (“CPSI”). See Memorandum for David B. Waller, Senior Associate Counsel to the President, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Appointment of Member of President’s Family to Presidential Advisory Committee on Private Sector 11 Opinions of the Office of Legal Counsel in Volume 41 Initiatives (Feb. 28, 1983). We answered that the President’s proposed appointment of a relative to the CPSI raised “virtually the same problems raised by Mrs. Carter’s proposed service on the President’s Commission on Mental Health.” Id. at 2. Because we lacked “sufficient time to reexamine the legal analysis contained in our earlier memoranda,” we stated that we had no choice but to “adhere to the conclusion” that “the President cannot, consistently with section 3110, appoint a relative as an active member of such a Commission.” Id. Most recently, we advised whether the President could appoint his brother-in-law and his half-sister to two advisory committees. Once again, we found that section 3110 precluded the appointments. See Memorandum for Gregory B. Craig, Counsel to the President, from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of 5 U.S.C. § 3110 to Two Proposed Appointments by the President to Advisory Committees (Sept. 17, 2009) (“Barron Opinion”). In the course of that analysis, we considered whether one of the committees, the President’s Commission on White House Fellowships (“Fellowships Commission”), was located within the Executive Office of the President or was instead a free-standing establishment within the Executive Branch. Id. at 14–15. 5 Concluding that, either way, the Fellowships Commission was, or was within, an “independent establishment” falling within the title 5 definition of Executive agency, we did not decide the question. Id. But we explicitly rejected the possibility that the Fellowships Commission constituted a part of the White House Office. Id. at 14. As a result, the Barron Opinion had no occasion to reapply or reconsider our precedents finding that section 3110 barred the President from appointing relatives to White House Office positions. See id. at 18–19 (distinguishing Haddon). B. Although none of our previous opinions analyzed the interaction between 3 U.S.C. § 105(a) and the anti-nepotism statute, our 1977 memo- 5 We concluded that the other advisory committee at issue, the President’s Council on Physical Fitness and Sports, constituted part of the Department of Health and Human Services. Barron Opinion at 9. Nothing in our present opinion should be understood to question our prior conclusions about filling positions not covered by the special hiring authorities in title 3. 12 Application of Anti-Nepotism Statute to Presidential Appointment in White House randa did consider the effect of language in annual appropriations for the Executive Office of the President that was nearly identical to section 105(a). Prompted by the inconsistency between our earlier memoranda and the implications of Haddon, we now revisit the reasoning in those memoranda in order to assess the issue presented under section 105(a). While acknowledging that the appropriation language was “broad” and the issue “not wholly free of doubt,” our memorandum regarding the White House appointment reasoned that section 3110 should be understood as a “specific prohibition” constituting an “exception to the general rule that limitations on employment do not apply to the White House Office.” White House Aide Memo II, at 3. We therefore invoked the “basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Id. (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)). But the canon about general and specific statutes seems of limited help here, because neither of the two relevant statutes can readily be characterized as more or less specific than the other. To be sure, section 3110 could be said to concern the “specific” subject of nepotism. But section 105(a) could reasonably be described as a statute “dealing with [the] narrow, precise, and specific” subject of hiring for the White House Office that ought to overcome the generally applicable anti-nepotism rule of section 3110. The 1977 memoranda also put significant weight on the legislative history of section 3110, discerning a clear congressional intent that the Executive Office of the President, including the White House Office, be among the entities subject to the anti-nepotism prohibition. See Mental Health Commission Memo I; Mental Health Commission Memo II, at 5; White House Aide Memo I, at 2; White House Aide Memo II, at 2–3. We think that this history is not so compelling, however, as to direct the outcome on the question here. Section 3110 was enacted as part of the Postal Revenue and Federal Salary Act of 1967. See Pub. L. No. 90-206, § 221, 81 Stat. 613, 640. When Congress considered and passed the legislation, the annual appropriations for the Executive Office of the President then in effect included the permissive language about the President’s authority to hire personnel in the White House Office. See Pub. L. No. 90-47, tit. III, 81 Stat. 113, 117 (1967). As our 1977 memoranda observed, there was no mention of those appropriations or that language during Congress’s consideration of 13 Opinions of the Office of Legal Counsel in Volume 41 the anti-nepotism provision. But one witness, the Chairman of the Civil Service Commission, testified before the Senate committee that, in his view, the language then under consideration would have prevented President Franklin Delano Roosevelt from appointing his son “at the White House as a civilian aide” (as President Roosevelt had done). Federal Pay Legislation: Hearings Before the S. Comm. on Post Office and Civil Service, 90th Cong. 366 (1967) (“Federal Pay Legislation Hearings”) (testimony of Chairman Macy). Following the hearing, the Senate amended the provision in the bill and explicitly named the President as a “public official” to whom the bar applied. “Because the Senate Hearings contain the only extended discussion of the provision and the only discussion at all of its application to the President,” we explained in our memorandum concerning the White House appointment, “it seems appropriate to attach particular significance to the Civil Service Commission’s interpretation of the statute in the course of the hearings. It is reasonable to assume that the Senate Committee and eventually the Congress acted on the basis of Chairman Macy’s interpretation of the prohibition as drafted.” White House Aide Memo II, at 2. Having reexamined the legislative materials, we no longer would make that assumption. The Senate committee and Chairman Macy were reviewing a version of the bill that prohibited nepotistic appointments to “department[s],” defined more broadly to include “each department, agency, establishment, or other organization unit in or under the . . . executive . . . branch of the Government . . . including a Government-owned or controlled corporation.” H.R. 7977, 90th Cong. § 222 (as referred to S. Comm. on Post Office and Civil Service, Oct. 16, 1967) (emphasis added). It is unclear why the Senate amended the provision to apply instead to “Executive agenc[ies]” and thus to call up the title 5 definition of that term. See H.R. 7977, 90th Cong. § 221 (as reported out of S. Comm. on Post Office and Civil Service, Nov. 21, 1967). The Senate report does not explain the change. See S. Rep. No. 90-801, at 28 (1967). Nevertheless, that the Civil Service Commission Chairman was considering different statutory language when offering his view about the scope of the prohibition dilutes the strength of his testimony—which, as a witness statement, should typically be afforded less weight to begin with. See S&E Contractors, 406 U.S. at 13 n.9; Gustafson, 513 U.S. at 580. Because the appropriation language was apparently never mentioned during the House’s or Senate’s consideration of the bill, the debates and 14 Application of Anti-Nepotism Statute to Presidential Appointment in White House other materials include no clear statement that the anti-nepotism provision was intended to prevail over the broad hiring authority previously granted in that year’s appropriation for the Executive Office of the President. 6 Moreover, aside from that single question about the service of President Roosevelt’s son as a White House aide—which was part of a series of questions posed by the senators to Chairman Macy about the language’s application to the President generally, see Federal Pay Legislation Hearings at 360–69—neither the Senate nor the House appears to have focused on the White House Office. We therefore are hesitant to infer that the 90th Congress envisioned that section 3110 would overcome the President’s hiring authorities under the annual appropriation. We are even more reluctant to draw that inference with respect to the permanent special hiring authority for the White House Office that Congress enacted ten years later. IV. Finally, we believe that this result—that the President may appoint relatives to his immediate staff of advisors in the White House Office—makes sense when considered in light of other applicable legal principles. Congress has not blocked, and most likely could not block, the President from 6 Individual senators did stress the amended provision’s breadth in floor statements. See 113 Cong. Rec. 36103 (1967) (statement of Sen. Randolph) (indicating that the Senate amended the provision “to plug any loopholes which might exist,” because “[i]t was critical that the nepotism provisions be applied across the board”); id. (stating that “[w]e could not stop at a certain point in formulating a policy on nepotism” and “had to apply the policy across the board”); id. at 36103–04 (suggesting that “the White House believes, as does now the Congress, that a nonnepotism policy should apply equally to any branch of Government”); id. at 37316 (statement of Sen. Udall) (explaining that the provision applies “across-the-board, from the highest office to the lowest paid job, with equal force and effect” and that “[n]o official in any of the three branches of the Government . . . may appoint or promote a relative to any position under his or her control or jurisdiction,” and calling it “the strongest possible guarantee against any abuse of Federal appointive authority and any preference in Federal positions that is adverse to the public interest”). These statements, whatever their worth in demonstrating congressional intent more generally, suggest that at least those senators meant for section 3110 to have broad effect across the three branches of government. But because those statements do not speak to section 3110’s relationship to the President’s hiring authority under the annual appropriations for the Executive Office of the President—and, of course, could not speak to the relationship between section 3110 and the later-enacted section 105(a)—they do not illuminate the matter at hand. 15 Opinions of the Office of Legal Counsel in Volume 41 seeking advice from family members in their personal capacities. Cf. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the President’s need, “[i]n making decisions on personnel and policy, and in formulating legislative proposals, . . . to seek confidential information from many sources, both inside the government and outside”); Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act (“FACA”) not to apply to the judicial recommendation panels of the American Bar Association in order to avoid “formidable constitutional difficulties”). Consequently, even if the antinepotism statute prevented the President from employing relatives in the White House as advisors, he would remain free to consult those relatives as private citizens. See Barron Opinion at 8–9 (finding the application of section 3110 to presidential advisory committees constitutional in part because “[t]he President remains free to consult his relatives in their private, individual capacities at the time and place of, and on the subjects of, his choosing”). And our Office has found that such an informal, “essentially personal” advisory relationship, even if the private person offers advice to the President on a “wide variety of issues,” does not make that person an employee of the federal government subject to the conflict of interest laws in title 18. Status of an Informal Presidential Advisor as a “Special Government Employee”, 1 Op. O.L.C. 20, 20–21 (1977) (“Informal Presidential Advisor”); see also id. at 22 (“Mrs. Carter would not be regarded as a special Government employee solely on the ground that she may discuss governmental matters with the President on a daily basis.”). 7 But the conflict of interest laws do apply to employees of the White House Office. See 18 U.S.C. §§ 203, 205, 207, 208, 209 (all applicable to, inter alia, officers and employees in the “executive branch”); id. § 202(e)(1) (defining “executive branch” for purposes of those statutes to include “each executive agency as defined in title 5, and any other entity 7 Our opinion explained, however, that while the informal presidential advisor’s general practice (as we understood it) of discussing policy issues directly with the President did not itself render him a government employee, his more extensive “work” on a particular “current social issue”—in connection with which the advisor “called and chaired a number of meetings that were attended by employees of various agencies” and “assumed considerable responsibility for coordinating the Administration’s activities in that particular area”—did cross a line and made him a government employee for purposes of that work. Informal Presidential Advisor, 1 Op. O.L.C. at 23. 16 Application of Anti-Nepotism Statute to Presidential Appointment in White House or administrative unit in the executive branch”); id. § 207(c)(2)(A)(iii), (d)(1)(C) (applying more stringent post-employment restrictions to employees appointed to the White House Office pursuant to 3 U.S.C. § 105(a)(2)); see also, e.g., Applicability of Post-Employment Restrictions in 18 U.S.C. § 207 to a Former Government Official Representing a Former President or Vice President in Connection with the Presidential Records Act, 25 Op. O.L.C. 120 (2001) (considering section 207’s application to former employees of the White House Office). A President wanting a relative’s advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany formal White House positions; or to appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest. Cf. AAPS, 997 F.2d at 911 n.10 (declining, after holding that the First Lady qualifies as a “full-time officer or employee” of the government under FACA, to decide her status under the conflict of interest statutes). In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office. Any appointment to that staff, however, carries with it a set of legal restrictions, by which Congress has regulated and fenced in the conduct of federal officials. * * * * * In our view, section 105(a) of title 3 exempts appointments to the White House Office from the bar in section 3110 of title 5. Section 3110 therefore would not prohibit the contemplated appointment. DANIEL L. KOFFSKY Deputy Assistant Attorney General Office of Legal Counsel 17

Write a legal research memo on the following topic.

Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act T he C lean Air A ct authorizes the E nvironm ental Protection A gency adm inistratively to assess civil penalties against federal agencies for violations of the Act or its im plem enting regulations. Separation of pow ers concerns do not bar E P A ’s exercise o f this authority, because it can be exercised consistent with the C onstitution. July 16, 1997 M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l E n v ir o n m e n t a l P r o t e c t io n A g e n c y and the G eneral C ounsel D epa r tm en t o f D efen se Y o u have asked for our opinion resolving a dispute between the Environmental Protection Agency (“ EPA” ) and the Department of Defense ( “ DOD” ) con­ cerning whether the Clean Air Act (“ the Act” ), 42 U.S.C. §§ 7401-7671q (1994), authorizes EPA administratively to assess civil penalties against federal agencies for violations of the Act or its implementing regulations, and if so, whether this authority can be exercised consistent with the Constitution.1 Applying the “ clear statement” rule of statutory construction, which is applicable where a particular interpretation or application of an Act of Congress would raise separation of powers concerns, we conclude that the Act does provide EPA such authority. We also conclude that these separation of powers concerns do not bar EPA’s exercise of this authority because it can be exercised consistent with the Constitution. I. A. EPA’s authority to initiate enforcement proceedings under the Clean Air Act is set forth in section 113 of the Act, entitled “ Federal Enforcement,” 42 U.S.C. 1 See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jonathan Z. Cannon, Assistant Administrator (General Counsel), EPA (Oct 3, 1995), enclosing Memorandum on Assessment o f Adm inistra­ tive Penalties Against Federal Facilities under the Clean A ir Act (Sept 11, 1995) ( “ EPA M emorandum” ), Letter for W alter Dellinger, from Judith A Miller, General Counsel, DOD (Dec 15, 1995), enclosing DOD Response Memorandum • Assessment o f Administrative Penalties Against Executive Branch Agencies Under Section II3{d) o f the Clean A ir Act (Dec 15, 1995) ( ‘‘DOD Response” ), Letter for Christopher Schroeder, Acting Assistant Attorney General, Office o f Legal Counsel, from Jonathan Z Cannon (Oct 18, 1996), enclosing EPA Memorandum in Reply to Department o f Defense Concerning Administrative Assessment o f Civil Penalties Against Federal Facilities Under the Clean Air Act (Sept. 16, 1996) ( “ EPA Reply” ) 109 O pinions o f the O ffice o f L egal C ounsel in V olum e 21 §7413 (1994). As summarized in section 113(a)(3),2 section 113 provides that when EPA finds that “ any person has violated, or is in violation o f ’ the Act or its implementing regulations, EPA may issue an administrative penalty order or a compliance order, bring a civil action, or request the Attorney General to commence a criminal action. The questions presented to us are whether the Act authorizes EPA to issue an administrative penalty order to a federal agency under section 113(d), and if so, whether that authority can be exercised consistent with the Constitution.3 The Act authorizes EPA to issue two kinds of administrative penalty orders. Section 113(d)(1) authorizes EPA to “ issue an administrative order against any person assessing a civil administrative penalty of up to $25,000, per day of viola­ tion” when EPA “ finds that such person” has violated the Act or its imple­ menting regulations. 42 U.S.C. § 7413(d)(1). Such a penalty may be assessed only after opportunity for a hearing on the record in accordance with the Administrative Procedure Act (“ APA” ), 5 U.S.C. §§554, 556 (1994). 42 U.S.C. § 7413(d)(2). In addition, section 113(d)(3) authorizes EPA to implement a field citation pro­ gram under which “ persons” who commit minor violations of the Act or the regulations may receive field citations assessing civil penalties not to exceed $5,000 per day. Id. § 7413(d)(3). Field citations may be issued without a hearing, but persons who have received citations may request a hearing. “ Such hearing shall not be subject to [the APA], but shall provide a reasonable opportunity to be heard and to present evidence.” Id. The Act provides for the two types of administrative penalty orders to be litigated in the courts in a variety of ways. Persons against whom either kind o f penalty is imposed may seek judicial review in federal district court, and in any such proceeding the United States may seek an order requiring that the penalties be paid. Id. § 7413(d)(4). In addition, if a person fails to pay any penalty after receiving an order or assessment from EPA, “ the Administrator shall request the Attorney General to bring a civil action in an appropriate district court to enforce the order or to recover the amount ordered or assessed.” Id. § 7413(d)(5). B. EPA presents a straightforward position that section 113(d) authorizes EPA to assess administrative penalties against federal agencies. That subsection authorizes EPA to assess penalties against “ persons.” Although the term “ person” is not 2 See 42 U.S.C § 7 4 l3 (a )(3 ) (where it finds a violation, EPA may “ (A) issue an administrative penalty order in accordance with subsection (d) o f this section, (B) issue an order requiring such person to comply with such requirement o r prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section 7605 o f this title, or (D) request the Attorney G eneral to commence a criminal action m accordance with subsection (c) o f this section” ) 3 W e intend that o u r resolution o f the questions concerning section 113(d) will also apply to the comparable authority provided to EPA with respect to mobile sources by sections 205(c) and 211(d)(1) o f the Act, 42 U.S.C. §§ 7524(c), 7545(d)(1) (1994). See EPA Memorandum at 2-3. 110 Adm inistrative A ssessm ent o f C ivil P enalties A gainst F ederal A gencies Under the Clean A ir A ct defined in section 113, which is the Act’s federal enforcement section, the term is defined in the Act’s general definitions section, section 302(e), which provides that the term includes “ any agency, department, or instrumentality of the United States and any office, agent or employee thereof.” 42 U.S.C. § 7602(e) (1994). EPA concludes that “ [s]ince federal facilities expressly fall within the Act’s defi­ nition of person, [section 113(d)] unambiguously demonstratefs] that EPA has authority to issue administrative penalties against federal facilities.” EPA Memo­ randum at 3. DOD argues in response that EPA’s interpretation would raise significant sepa­ ration of powers concerns, because it would authorize civil litigation proceedings between federal agencies, and therefore it can be adopted only if there is an express statement of congressional intent to provide such authority that is suffi­ cient to meet the high standard applied by the courts and this Office with respect to statutory interpretation questions involving separation of powers concerns.4 DOD argues that “ [s]ection 113(d) fails to provide clear and express authority for EPA to impose administrative penalties against Executive Branch agencies.” DOD Response at 4. DOD rejects EPA’s argument that the inclusion of federal agencies in the Act’s general definition of “ person” constitutes “ a sufficiently express statement to allow [EPA] to exercise enforcement authority against other Executive Branch agencies.” Id. at 5. II. We agree with DOD that the interpretation of the Clean Air Act advanced by EPA — that EPA is authorized to initiate enforcement proceedings under section 113(d) against federal agencies — raises substantial separation of powers concerns, thus warranting application of the clear statement principle. in 1994, this Office was asked whether the Department of Housing and Urban Development ( “ HUD” ) has the authority under the Fair Housing Act to initiate enforcement proceedings against other federal agencies. We concluded that such an interpretation of the Fair Housing Act would raise substantial separation of powers concerns “ relat[ing] to both the President’s authority under Article II of the Constitution to supervise and direct executive branch agencies and the Article III limitation that the jurisdiction of the federal courts extends only to actual cases and controversies.” Fair Housing Act Opinion, 18 Op. O.L.C. at 105. We stated that “ [w]ith respect to the Article III issue, this Office has consistently said that ‘lawsuits between two federal agencies are not generally justiciable,’ ” id. at 106 4See DOD Response at 4 ( “ The assessment o f administrative penalties against Executive Branch agencies by EPA is based on a statutory scheme that contemplates judicial intervention into what should be a purely Executive Branch function, thus raising significant constitutional separation o f powers concerns, warranting the high standard o f review ” ) (citing Authority o f Department o f Housing and Urban Development to Initiate Enforcement Actions Under the Fair Housing Act Against Other Executive Branch Agencies, 18 Op O L C 101 (1994) (“ Fair Housing Act Opinion” ) in O pinions o f the O ffice o f L egal C ounsel m Volum e 21 (quoting Constitutionality o f Nuclear Regulatory Commission’s Imposition o f Civil Penalties on the Air Force, 13 Op. O.L.C. 131, 138 (1989) (“ NRC Opinion” )), and that “ [w]ith respect to Article II, we have indicated that construing a statute to authorize an executive branch agency to obtain judicial resolution of a dispute with another executive branch agency implicates ‘the President’s authority under Article II of the Constitution to supervise his subordinates and resolve disputes among them.’ ” Id. (quoting Review of Final Order in Alien Employer Sanctions Cases, 13 Op. O.L.C. 370, 371 (1989)). We observed in our Fair Housing Act opinion that these separation of powers concerns are the essential backdrop for our analysis of whether the Fair Housing Act authorizes HUD to initiate enforcement proceedings against other executive branch agencies. Like the Supreme Court, we are “ loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evi­ dence that it courted those perils.” Id. at 106-07 (quoting Public Citizen v. Department o f Justice, 491 U.S. 440, 466 (1989)). Accordingly, we applied a clear statement rule and concluded that the statute did not provide HUD this authority: Applying the standard the Supreme Court has used when a par­ ticular interpretation or application of an Act of Congress would raise separation of powers or federalism concerns, we believe that because substantial separation of powers concerns would be raised by construing the Act to authorize HUD to initiate enforcement pro­ ceedings against other executive branch agencies, we cannot so con­ strue the Act unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, we conclude that it does not grant HUD this authority. Id. at 101. Our insistence in the Fair Housing Act Opinion that the statute must ‘‘contain[ ] an express statement that Congress intended HUD to have such authority” was consistent with a long line of opinions of the Supreme Court and this Office that require a clear statement of congressional intent when separation of powers or federalism concerns would be raised. Many of these opinions are cited in an opinion that we issued subsequent to the Fair Housing Act Opinion. See Applica­ tion o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges, 19 Op. O.L.C. 350 (1995) (concluding that 28 U.S.C. §458 (1994), which prohibits appointment or employment of relatives of judges in same court, does not apply 112 A d m inistrative A ssessm ent o f C ivil P enalties'A gainst F ederal A g en cies Under the Clean A ir A ct to presidential appointments of judges). We stated in that opinion that “ [g]iven the central position that the doctrines of federalism and separation of powers occupy in the Constitution’s design, [the clear statement rule] serves to ‘assure[] that the legislature has in fact faced, and intended to bring into issue, the critical matters’ of the balance of power among the three branches of the federal govern­ ment, in the context of separation of powers, and between the federal and state governments, in the context of federalism.” Id. at 352 (quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)). See also Will v. Michigan Dep't o f State Police, 491 U.S. 58, 65 (1989); United States v. Bass, 404 U.S. 336, 349 (1971). III. Based on the foregoing discussion, we must find a clear statement of congres­ sional intent before we can conclude that the Clean Air Act authorizes EPA to initiate enforcement proceedings against other executive branch agencies. As dis­ cussed below, we believe that the statutory text provides a very strong basis for finding a clear statement of such intent and that this conclusion is fully supported by the legislative history of the Act, particularly the 1977 amendment of the defi­ nition of “ person” to include federal agencies. A straightforward review of the relevant provisions of the Clean Air Act’s statu­ tory text supports EPA’s position that the statute gives EPA authority to assess civil penalties against federal agencies administratively. EPA’s authority under section 113(d) is available with respect to “ persons” who violate the Act.5 The term “ person” is defined in section 302(e): “ When used in [the Clean Air Act] . . . [t]he term ‘person’ includes an individual, corporation, partnership, associa­ tion, State, municipality, political subdivision of a State, and any agency, depart­ ment, or instrumentality o f the United States and any officer, agent, or employee thereof.” 42 U.S.C. § 7602(e) (emphasis added). EPA rests its argument on the plain meaning of these two provisions. EPA does so with good justification, because read together sections 113(d) and 302(e) expressly provide that EPA may issue administrative penalty assessments against federal agencies. We have also reviewed the evolution of the relevant provisions of the Clean Air Act as reflected by various amendments to the Act over the years. As discussed below, that history fully supports the conclusion that Congress contemplated EPA enforcement against other federal agencies. 5 Section 113(d)(1) provides for assessment o f civil penalties against “ persons” . ‘‘The Administrator may issue an administrative order against any person ” 42 U S C § 7413(d)( 1) Section 113(d)(3) achieves the same result, but uses indirect language “ The Administrator may implement a field citation program . . . [under] which field citations may be issued by officers or employees designated by the Administrator Any person to whom a field citation is assessed may . elect to pay the penalty assessment or lo request a hearing on the field citation ” Id. § 7413(d)(3). The plain language o f these provisions refutes DOD’s position that this language “ cannot fairly be read to constitute an affirmative grant of authority to issue a field citation against ‘any person ’ ” DOD Response at 5. 113 O pinions o f the O ffice o f L egal C ounsel in Volum e 21 The administrative enforcement provisions set forth in section 113(d) were enacted as part of the Clean Air Act Amendments of 1990 (“ the 1990 Amend­ ments” ), Pub. L. No. 101-549, §701, 104 Stat. 2399, 2677-79. We have reviewed the legislative history of the 1990 Amendments and have found no discussion of the application of those provisions to federal agencies. We have not limited our legislative history review to the 1990 Amendments, however, because the administrative enforcement authorities provided by those amendments merely supplemented the enforcement authorities EPA already had with respect to “ per­ sons” under the other provisions of section 113. Thus, Congress’s intent in pro­ viding EPA those other authorities is controlling. EPA’s other enforcement authorities under section 113 originated with the Clean Air Act Amendments of 1970 (“ the 1970 Amendments” ), Pub. L. No. 91-604, §4(a), 84 Stat. 1676, 1686-87. As with the current version of section 113, the 1970 version authorized federal enforcement against “ persons.” However, at that time the Act’s definition of “person” did not include agencies of the federal government.6 The 1970 Amendments also revised section 118 of the Act to make federal agencies subject to the substantive requirements of the Act: “ [Federal agencies] shall comply with Federal, State, interstate, and local requirements respecting control and abatement o f air pollution to the same extent that any per­ son is subject to such requirements.” Id. §5, 84 Stat. at 1689.7 Thus, the 1970 version of section 118 referred only to federal agencies complying with sub­ stantive requirements; it did not contain any language subjecting federal agencies to enforcement authority. In 1977, the definition of “person” was expanded to include “ any agency, department, or instrumentality of the United States.” Clean Air Act Amendments of 1977 (“ the 1977 Amendments” ), Pub. L. No. 95-95, § 301(b), 91 Stat. 685, 770. This amendment was contained in the House-passed version of the 1977 Amendments, which was accepted by the conference committee. See H.R. 6161, § 113(d), 95th Cong., 1st Sess. (1977) (“ House Bill” ); H.R. Conf. Rep. No. 95564, at 137, 172 (1977), reprinted in 1977 U.S.C.C.A.N. 1502, 1517-18, 155253. The committee report accompanying the House Bill expressly stated that the specific purpose of the expansion of the definition of “ person” was to make it clear that section 113 enforcement was available with respect to federal agencies: 6 “ Person” was lim ited to “ an individual, corporation, partnership, association, State, municipality, and political subdivision o f a State ” Pub. L No 88-206, §9 (e), 77 Stat 392, 400 (1963) 7The previous version o f section 118, enacted in 1959, merely requested federal agencies to “ cooperate” with air pollution enforcement control agencies See A ct o f Sept. 22, 1959 ( “ the 1959 Amendments” ), Pub. L No 86365, §2 , 73 Stat 646 ( “ It is hereby declared to be the intent o f the Congress that any Federal department or agency . . shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with the Department o f Health, Education, and W elfare, and with any interstate agency or any State or local government air pollution control agency in preventing or controlling the pollution o f the air . . . ”). 114 A dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies U nder th e Clean A ir A ct Finally, in defining the term “ person” for the purpose of section 113 of the act to include Federal agencies, departments, instrumen­ talities, officers, agents, or employees, the committee is expressing its unambiguous intent that the enforcement authorities of section 113 may be used to insure compliance and/or to impose sanctions against any Federal violator of the act. H.R. Rep. No. 95-294, at 200 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1279 (“ House Report” ).8 In sum, the expansion of the definition of “ person” to include federal agencies, together with the statement in the House Report that the definitional change was for the express purpose of subjecting federal agencies to EPA enforcement under section 113, leave no room for doubt that Congress clearly indicated in 1977 its intent to authorize EPA to use its section 113 enforcement authorities against fed­ eral agencies. IV. EPA takes the position that its authority under the Clean Air Act to assess civil penalties against federal agencies administratively can be exercised consistent with Articles II and III of the Constitution. EPA bases its position on the view that the Act provides sufficient discretion to the affected parties so that complete resolution of the dispute may occur within the Executive Branch, up to and including referral to the President of any issues that are not otherwise resolved, and the President is not deprived of his opportunity to review the matter in dispute. EPA Memorandum at 1. We agree with EPA’s position. We will discuss the Article II and Article III issues separately. A. EPA asserts that it can exercise its administrative enforcement authority under the Act in a way that is consistent with the President’s supervisory authority under Article II. EPA emphasizes that the Act provides a federal facility with the right to a hearing before final assessment of a penalty, and therefore . . . provides federal facili­ 8The quotation from the House Report indicates that the House Bill “ defin[ed] the term ‘person’ for the purpose of section 113 ” The House Bill accomplished that purpose by amending the A ct’s general definition o f “ person,” not by creating a special definition applicable only to section 113. See H R 6161, supra, § 113(d). 115 O pinions o f the O ffice o f Legal C ounsel in V olum e 21 ties with sufficient opportunity to raise any dispute to the President where considered appropriate. Nothing in the Act would prevent a federal facility from exercising this opportunity to raise any dis­ pute to the President. Id. at 5 (footnote omitted). Nor are federal agencies limited to using the hearing process to raise a dispute to the appropriate level within the executive branch: federal agencies will have the opportunity to consult with the EPA Administrator before any assessment is final, see id., and the Attorney General could seek to resolve the matter if either EPA or the respondent federal agency sought to litigate the matter, see id. at 6. The critical point for constitutional purposes is that the Act does not preclude the President from authorizing any process he chooses to resolve disputes between EPA and other federal agencies regarding the assessment of administrative pen­ alties. “ [I]t is not inconsistent with the Constitution for an executive agency to impose a penalty on another executive agency pursuant to its statutory authority so long as the President is not deprived of his opportunity to review the matter.” NRC Opinion, 13 Op. O.L.C. at 136-37. DOD attempts to distinguish our NRC Opinion, which concluded that the administrative enforcement authority of the Nuclear Regulatory Commission (“ NRC” ) under the Atomic Energy Act, see 42 U.S.C. §2282 (1994), could be exercised against federal agencies consistent with Article II. DOD suggests that the statutory regimes are different, arguing principally that they differ with respect to the Attorney General’s authority to resolve a dispute. It notes that the Atomic Energy Act contains an express authorization to the Attorney General, in cir­ cumstances where the NRC has requested that the Attorney General institute a civil action to collect a penalty, “ to compromise, mitigate, or remit such civil penalties.” 42 U.S.C. §2282(c). See DOD Response at 10-11. DOD then asserts that the Clean Air Act is different because it ‘‘limits the discretion of the Attorney General to compromise, mitigate or remit a penalty assessment.” Id. DOD appar­ ently bases that assertion on the language in section 113(d)(5) stating that in any civil action ‘‘the validity, amount, and appropriateness of such order or assessment shall not be subject to review.” 42 U.S.C. § 7413(d)(5). DOD’s assertion that the Clean Air Act limits the Attorney General’s discretion is incorrect. Section 113(d)(5) acts as a limitation only on the authority of the courts in any action that is brought before the courts. It is not a limitation on the Attorney General, acting under Executive Order No. 12146 or any litigation review process, o r— more to the point — the President acting through whatever executive branch process he may authorize. The absence of any limitation on the President’s discretion is the dispositive factor for constitutional purposes, and in that respect the two statutory regimes are the same. Neither statute precludes reso­ 116 A dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies Under the Clean A ir A ct lution within the executive branch, including resolution by the President, of dis­ putes between the enforcement agency and other federal agencies.9 B. EPA acknowledges that the civil action provisions contained in sections 113(d)(4) and 113(d)(5) of the Act, see 42 U.S.C. §§ 7413(d)(4), 7413(d)(5), “ raise the possibility of one executive branch agency suing another in federal court over the administrative penalty,” EPA Memorandum at 9, but it takes the position that “ [t]he constitutional concerns . . . could be avoided by an interpreta­ tion that the general reference to review in federal district court reasonably means only judicial review that was otherwise constitutional.” Id. In particular, EPA emphasizes that “ nothing in the Clean Air Act mandates that two executive branch agencies end up in federal court. There is at most an opportunity for any agency to seek judicial review, and a requirement that EPA ‘request’ that the Attorney General file a collection action.” Id. EPA concludes that “ the mere possibility that an interagency lawsuit might result does not invalidate an agency’s ability to assess civil penalties against another executive branch agency, where the Attorney General has adequate discretion to control the filing of such a lawsuit.” Id. at 10. As stated in Section II of this opinion, “ this Office has consistently said that ‘lawsuits between two federal agencies are not generally justiciable.’ ” Fair Housing Act Opinion, 18 Op. O.L.C. at 106 (quoting NRC Opinion, 13 Op. O.L.C. at 138). “ We have reasoned that federal courts may adjudicate only actual cases and controversies, that a lawsuit involving the same person as both plaintiff and defendant does not constitute an actual controversy, and that this principle applies to suits between two agencies of the executive branch.” Id. We agree with EPA, however, that this Article III barrier to use of the civil action remedies of section 113(d) is not a barrier to EPA’s exercise of its administrative enforcement authority under the Act. Put another way, we agree that the administrative authority can be exercised consistent with Article HI. The Act does not require that civil actions be brought in the event of a dispute of an assessment by EPA; it merely authorizes the bringing of such actions. Thus, as is the case with the comparable provisions contained in the Atomic Energy Act, which we concluded in our NRC opinion could be applied consistent with Article III, “ this constitutional issue need not arise, because the framework 9 Nor does ihe Clean Air A ct’s citizen suit provision operate to preclude resolution within the executive branch Section 304 provides thai “ any person may commence a civil action on his own behalf . . against any person (including the United States ) who is alleged to be in violation of . (B) an order issued by [EPAJ with respect to (an emission) standard or limitation” under the Act. 42 U S C. § "7604(a)(1) (1994) T he filing of a citizen suit during the pendency o f a dispute between EPA and a federal agency would not prevent the President from directing EPA to suspend, withdraw or modify the order it had issued to the agency. Such direction could be provided specifically in individual cases or generally by operation o f a standing directive setting forth procedures for resolution o f enforcement proceedings under section 113. 117 O pinions o f the O ffice o f Legal C ounsel in Volum e 21 of the Act clearly permits [a] dispute over civil penalties to be resolved within the executive branch, and without recourse to the judiciary.” NRC Opinion, 13 Op. O.L.C. at 141.10 To the extent that the civil action provision of the two stat­ utes are parallel, in that the Attorney General rather than the enforcement agency has control over whether to bring the civil action, our analysis in the NRC Opinion is directly controlling here: It is therefore clear that the Attorney General may exercise [her] discretion to ensure that no lawsuits are filed by [EPA] against other agencies of the executive branch. If the Attorney General and the President determine that no civil penalties should be collected, the Attorney General may simply refrain from bringing a lawsuit. If the Attorney General determines that certain civil penalties are appropriate, however, the Attorney General would still not bring a lawsuit because of the constitutional problems noted above. Rather, procedures internal to the executive branch are adequate to resolve the dispute through the determination that [the federal agency responsible for the federal facility] is liable. Id. at 143. The only difference between the two statutes that is relevant to the Article III question is that section 113(d)(4) of the Clean Air Act would also authorize the agency responsible for the federal facility to initiate a civil action to contest an EPA administrative order. See 42 U.S.C. § 7413(d)(4). The difference is not significant for constitutional purposes, however, because, as we have explained, the Act is permissive only and does not require any federal agency to bring a civil action. Moreover, the Attorney General and the President possess the authority to forestall litigation between executive branch entities. The Attorney General is responsible for conducting litigation on behalf of most federal agencies and therefore can ensure that no civil action is filed by those agencies against another federal entity. We would expect that the relatively few federal agencies that have relevant independent litigating authority similarly would decline to file civil actions, consistent with the conclusions set forth in this memorandum. In any event, the President could direct the agency head not to bring an action or to withdraw any action that might be filed. DAWN E. JOHNSEN Acting Assistant Attorney General Office of Legal Counsel xoSee also id. at 143 (“ We thus conclude that a lawsuit between two agencies of the executive branch would involve substantial constitutional problems, but that the statutory scheme permits resolution of the interagency dispute within the executive branch.” ). 118

Write a legal research memo on the following topic.

Congressional Pay Amendment T h e C o n g ressio n al Pay A m endm ent, w hich w as originally proposed by C ongress to the States for ratification in 1789, and having been ratified by three-fourths o f the S tates, h as b een ratified p u rsu an t to A rticle V and is accordingly now part o f the C onstitution. U n d er 1 U .S .C . § 106b, the A rchivist was, upon receipt o f form al instrum ents o f ratification from the req u isite num ber o f States, required to publish the C ongressional Pay A m endm ent along w ith his certificate specifying that the A m endm ent has becom e valid, to all in ten ts and purposes, a s part o f the C onstitution. May 13, 1992 M em orandum O p in io n f o r t h e C o u n sel to the P r e s id e n t You have asked for a summary of our views, on an expedited basis, on whether the Congressional Pay Amendment has been duly adopted in accor­ dance with the formal requirements of Article V of the Constitution. The General Counsel of the National Archives and Records Administration has informed us that the Archivist of the United States has received word that a total of thirty-nine States have adopted the Amendment, one more than the three-fourths required under Article V. The Archivist expects to have re­ ceived formal instruments of ratification from all the necessary States shortly and informs us that no state has purported to rescind its ratification. Article V of the Constitution provides: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . . which . . . shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . . . Congress proposed the Pay Amendment to the States in 1789, by a resolu­ tion concurred in by two-thirds of both Houses. 1 Stat. 97 (1789). That resolution further provided that the Amendment would be valid as part of 85 the Constitution “when ratified by three fourths of the [State] legislatures.” Id. As the Amendment was proposed by the requisite majorities of both Houses of Congress, and has been ratified by the legislatures of three-fourths of the States, it has met all of the requirements for adoption set forth in Article V. Section 106b of title 1, United States Code, provides: Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, ac­ cording to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has be­ come valid, to all intents and purposes, as a part of the Constitution of the United States. Accordingly, upon the receipt of formal instruments of ratification of the Pay Amendment from three-fourths of the States, the Archivist must forth­ with cause the Amendment to be published with his certificate specifying the States by which it has been adopted, and that the Amendment has be­ come valid, to all intents and purposes, as a part of the Constitution of the United States. The effective date of the Amendment is the date on which it was ratified by the thirty-eighth State to do so. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 86 November 2, 1992 M em o ran d u m O p in io n f o r t h e C o u n sel to th e P r e s id e n t You have asked us to memorialize the detailed analysis underlying the advice rendered to you earlier this year in connection with the ratification of the Congressional Pay Amendment, originally proposed by Congress to the States for ratification in 1789. You also asked us to address the question whether the Archivist of the United States, upon receipt of formal instru­ ments of ratification from the requisite number of states, was required to certify that the Congressional Pay Amendment has become part of the Con­ stitution.1 For the reasons set forth below, we conclude that the Congressional Pay Amendment has been ratified pursuant to Article V and is accordingly now part of the Constitution, and that the Archivist was required to issue his certification to that effect in accordance with 1 U.S.C. § 106b. I. A. The procedures for amending the Constitution are set forth in Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amend­ ments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Con­ ventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. ' We have relied upon the Archivist of the United States for his official tally of the ratifying States. In addition to the forty states listed in the Archivist’s certification, see 57 Fed. Reg. 21,187, 21,188 (1992), we understand that California ratified the amendment on June 26, 1992, see 138 Cong. Rec. E2237 (daily ed. July 24, 1992). We set forth in detail the history of the Congressional Pay Am endm ent’s ratification by the States in the accompanying Appendix. 87 The Constitution of the United States: Analysis and Interpretation, S. Doc. No. 16, 99th Cong., 1st Sess. 18 (Johnny H. Killion ed., 1987) (“Constitution Annotated'). Thus, Congress or a convention proposes an amendment, Con­ gress proposes a mode of ratification, and the amendment becomes part of the Constitution when ratified by three fourths of the States. The ratification of the Congressional Pay Amendment followed this process. Congress pro­ posed the amendment and directed it to state legislatures for ratification. Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789) (Amendments to the U.S. Consti­ tution). Three fourths of the several States have now ratified it. 57 Fed. Reg. 21,187, 21,188 (1992); see also Appendix.2 By a straightforward reading of Article V, the amendment is now “valid to all Intents and Purposes, as Part of th[e] Constitution.” That the ratification of the Congressional Pay Amendment has stretched across more than 200 years is not relevant under the straightforward lan­ guage of Article V. Article V contains no time limits for ratification. It provides simply that amendments “shall be valid to all Intents and Purposes . . . when ratified.” Thus the plain language of Article V contains no time limit on the ratification process. Nor are we aware of any other basis in law for adding such time limits to the Constitutional amendment process, other than pursuant to the process itself. Indeed, an examination of the text and structure of Article V suggests that the absence of a time limit is not an accident. The procedure prescribed in Article V necessarily implies that some period of time must pass between the proposal of an amendment and its final ratification by the requisite num­ ber of States.3 This suggests that if a time limit on the process were intended, the time limit would be stated in terms. Moreover, Article V does deal with a question concerning time limits, and does so quite precisely: no amend­ ment affecting “the first and fourth Clauses in the Ninth Section of the first Article” was permitted to be made “prior to the Year One thousand eight hundred and eight.” If the Framers had contemplated some terminus of the period for ratification of amendments generally, they would have so stated. The rest of the Constitution strengthens the presumption that when time periods are part of a constitutional rule, they are specified. For example, representatives are elected every second year, U.S. Const, art. I, § 2, and a census must be taken within every ten year period following the first census, 2The A rchivist also informs us that no State has transmitted to the federal government a document p urp o rtin g to rescind a prior ratification. In the early 1800's, the Vermont legislature, which had previously ratified the amendment, passed a resolution opposing a later, nearly identical proposal by the K entucky legislature. S e e 1817 Vt. Law s 100-01. There is no evidence, however, that Vermont at­ tem pted to rescind its previous ratification. Several states did expressly reject the Congressional Pay Am endm ent when it was first proposed, though only New Hampshire appears to have formally notified the federal governm ent o f that fact. S e e 1 D ocum entary H isto ry o f the F irst F ed era l C ongress o f the U n ite d S ta te s o f A m e r ic a 348 (Linda G rand DePauw, et. al., eds. 1972) (“ 1 F irst C o n g ress")’. Appendix at pp. A-3 to A-4. 3 S ee Joseph Story, C om m entaries on th e C onstitution o f the U nited Stales § 959, at 681 (1833) (re­ printed 1987) (formal requirements of A rticle V indicate that “[t]ime is thus allowed, and ample time, for deliberation, both in proposing and ratifying amendments”) ( “C om m entaries"). 88 which was required to be taken within three years of the first meeting of Congress. Id. Neither House of Congress may adjourn for more than three days without the consent of the other, U.S. Const, art. I, § 5, and the Presi­ dent has ten days (Sundays excepted) within which to sign or veto a bill that has been presented to him. U.S. Const, art. I, § 7. The Twentieth Amend­ ment refers to certain specific dates, January 3rd and 20th. Again, if the Framers had intended there to be a time limit for the ratification process, we would expect that they would have so provided in Article V.4 The records of the drafting and ratification of the Constitution contain no hint that Article V was intended to contain any implicit time limit. See, e.g., Dillon v. Gloss, 256 U.S. 368, 371 (1921). The issue appears not to have arisen at the time of the framing, but has since been debated in Congress from time to time. Throughout most of those debates, the dominant view has been that the Constitution permits the ratification process to proceed for an unlimited period of time. The first discussion we have found of the question whether a proposed constitutional amendment remains viable in­ definitely came in 1869, when Senator Buckalew introduced a measure to regulate the time and manner in which state legislatures would consider the Fifteenth Amendment. In support of his proposal, he stated that because of the confusion created by States that either ratify after rejecting, or reject after ratifying, “we are in this condition that you cannot have a constitu­ tional amendment rejected finally at all in the United States; rejections amount to nothing, because ratifications at some future time, ten, twenty, fifty, or one hundred years hence, may give it validity.” Cong. Globe, 40th Cong., 3d Sess. 913 (1869). Senator Bayard, opposing a related proposal, stated his belief that “as long as the proposed amendment has neither been adopted by three fourths of the States nor rejected by more than one fourth, it stands open for . . . action.” Id. at 1312. The Senate and House debates regarding proposal of the Eighteenth Amendment in 1917 also indicate a common belief that Article V contains no time limits. For example, in his remarks on the need for limiting time for state ratification, Senator Ashurst explained that two of the first twelve amendments proposed by Congress “are still pending . . . and have been for 128 years.” 55 Cong. Rec. 5556 (1917). Senator Borah expressed the view that “[t]he fundamental law of the land does say very plainly, that it places no limitation upon the time when or within which [an amendment] must be ratified. It says ‘when ratified’, and fixes no limit.” Id. at 5649. Senator 4 The Constitution also contains provisions that refer to time but not to a specific period or date. The Twelfth Amendment provides that when the House of Representatives must choose the President, it is to ballot “im m ediately” (presumably to prevent intrigue and cabal); the Vice President shall “im m edi­ ately” assume the office o f President under certain circumstances, U.S. Const, amend. XXV, § 4; the first Senate was “immediately” to divide itself into three classes for purposes of determining when terms o f office expired, U.S. Const, art. I, § 3, cl. 2; the Sixth Amendment requires that accused persons receive a "speedy” trial. The Constitution also requires that certain duties be performed “ from tim e to tim e.” S e e U.S. Const, art. I, § 5, cl. 3 (publication of journal o f Congress); art. I, § 9, cl. 7 (publication of statement of accounts); art. II, § 3 (President’s state of the union message). The comm on theme o f all these provisions is that when time is part of a constitutional rule, the document so provides. 89 Cummins offered a separate amendment to Article V, stating that “I am in favor of supplying what is manifestly a defect in our Constitution and pro­ viding some limit of time . . . ” Id. at 5652. Senator Overman later stated that “as the Constitution is now, . . . an amendment . . . can be submitted for a thousand years and be in force whenever ratified.” 56 Cong. Rec. 10,098 (1918). In the House, Representative Reavis objected to any time limit in the Constitution. “The amendment is submitted until enough legislatures have passed upon it to indicate whether or not it will be approved by threefourths of them.” 56 Cong. Rec. 444 (1917). Representative Steel replied that without a time limit, “when a proposed constitutional amendment goes out to the States it rests there for agitation for all time without any limita­ tion whatever.” Id. at 445. Thus, although there was much disagreement on the issue — later ad­ dressed in Dillon v. Gloss — whether Congress could impose time limits for state ratification of a proposed constitutional amendment in the absence of a separate amendment to Article V, there was little doubt as to the rule estab­ lished by the Constitution itself: the proposed amendment remained viable, at least until rejected by more than one-fourth of the States.5 Thus, the text and history o f Article V make plain that any argument that there is a time limit on the ratification process must be based on some ground other than text and history. B. 1. Two decisions of the Supreme Court, Dillon, and Coleman v. Miller, 307 U.S. 433 (1939), have been cited for the propositioft that Article V requires that the ratification of constitutional amendments takes place within a “rea­ sonable” time after proposal.6 That doctrine is not within the holding of those cases, however, and we believe that any dicta supporting the doctrine are unsound. In upholding Congress’s power to limit to seven years the time for ratifi­ cation of the Eighteenth Amendment, the Supreme Court in Dillon stated “that the fair inference or implication from Article V is that the ratification [of an amendment] must be within some reasonable time after the proposal.” 256 U.S. at 375. If this reasoning is controlling and Article V does contain 3 It is especially telling that so many of those who thought that the Constitution imposed no tim e limit on the am endm ent process thought this feature to be a defect in the document; had they thought the question a close one, or if any textual argum ent had been available, they might have resolved it in favor o f what they took to be the preferable outcom e. 6 See, e .g .. E q u a l R ig h ts A m endm ent E x te n sio n : H earings on S. J. Res. 134 Before the S ubcom m . on the C o n stitu tio n o f the S e n a te C om m , on the J u d ic ia ry , 95th Cong., 2d Sess. 117 (1978) (“Senate Hearings”) (testimony of Prof. Thomas I. Emerson, Yale University); id. at 144 (testimony of Prof. Jules B. Gerald, Washington University); id. at 266 (statement of Prof. Ruth B. Ginsburg, Columbia University). 90 an implicit requirement that proposal and ratification be reasonably contempora­ neous, the Congressional Pay Amendment almost certainly would be invalid.7 Although recognizing that Article V “says nothing about the time within which ratification may be had,” id. at 371, the Court in Dillon identified three grounds for concluding that Article V “strongly suggests” that a pro­ posed amendment may not remain “open to ratification for all time” and that ratification in some States may not be “separated frorri that in others by many years and yet be effective.” Id. at 374. The Court stated: First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a neces­ sity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be consid­ ered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scat­ tered through a long series of years would not do. Id. at 374-75 (emphases added).8 7 Indeed, the Court in D illon suggested that the period for ratification of the Congressional Pay Amend­ ment, along with that of three other long-dormant proposed amendments, had lapsed: That [construing Article V to require contemporaneous ratification] is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago — two in 1789, one in 1810 and one in 1861 — are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in o u r o p in io n it is q u ite untenable. Id. (emphasis added). S ee a lso Memorandum from David C. Huckabee, Analyst, and Thomas M. Durbin, Legislative Attorney, Congressional Research Service, Library of Congress, R e: The P ro p o sed C o n g res­ sio n a l P ay C o n stitu tio n a l A m en d m en t: Issues P ertaining to R a tifica tion, at 2-3 (Aug. 12, 1991) (“CRS Memorandum” ). s In support of the notion of contemporaneous consensus, the Court quoted with approval a passage from John A. Jameson, A Treatise on C onstitu tio n a l C onventions (Da Capo Press 1972) (4th ed. 1887), in which Jameson wrote: The better opinion would seem to be that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs o f to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress. Id. § 585, at 634, q u o te d in p a rt in 256 U.S. at 375. Contrary to the conclusion in D illo n , however, Jameson in his treatise had not suggested that his "opinion” on the need for contem poraneous ratification was based on any requirem ent detectable in the text o f Article V. Rather, he believed that securing this policy goal would require the adoption o f a “constitutional statute of lim itation" for proposed amendments. Jameson specifically referred to the Continued 91 In Coleman v. Miller, the Court was presented with a claim by members of the Kansas Legislature that the Child Labor Amendment, proposed by Congress thirteen years before, “had lost its vitality through lapse of time.” 307 U.S. at 451. The Court refused to consider the claim. Id. at 452-56 (opinion of Hughes, C.J., joined by Stone and Reed, JJ.); id. at 456-60 (Black, 1., joined by Roberts, Frankfurter and Douglas, JJ., concurring). In his “opinion for the Court” in Coleman, Chief Justice Hughes observed that although the three considerations outlined in Dillon represented “cogent rea­ sons” for concluding in the earlier case that Congress had the power to fix a reasonable time limit for ratification, Dillon's discussion of these consider­ ations was merely a dictum. Id. at 452-53. Nevertheless, in determining that the issue was “political,” Chief Justice Hughes in dicta adhered to the premise of Dillon that Article V may be read as implicitly limiting the time for ratification. See id. at 453-54. See also CRS Memorandum at 3; Staff of House Comm, on the Judiciary, 85th Cong., 1st Sess.,' Problems Relating to a Federal Constitutional Convention 44-45 (Comm. Print 1957) (by Cyril F. Brickfield).9 2. Dillon is not authoritative on the issue whether Article V requires con­ temporaneous ratification. As Chief Justice Hughes pointed out in Coleman, 307 U.S. at 452-53, the “reasonable time” discussion in Dillon was dictum because the issue before the Court was Congress’s authority to limit the period for ratification, not a State’s authority to ratify a long-dormant pro­ posed amendment. See 1 Westel W. Willoughby, The Constitutional Law of the United States 596 n.18 (2d ed. 1929) (“Willoughby”) (“[T]he declaration of the court [in Dillon] as to the lapsing of proposed amendments which do ' ( ....continued) various proposed am endm ents “floating about" in 1887, including the Congressional Pay Amendment, w hich had shortly before been ratified by Ohio, and he acknowledged that “there is in force in regard to them no recognized statute o f limitation.” Jameson, su p ra , § 586, at 635-36. A fter discussing the hypothetical “confusion or conflict" that would result from such open-ended proposals, Jameson con­ cluded w ith a plea for amending the amendm ent process: We discuss this question here m erely to emphasize the dangers involved in the Constitution a s it sta n d s, and to show the necessity of legislation to make certain those points upon which doubts may arise in the employment of the constitutional process for amending the funda­ m ental law o f the nation. A constitutional statute o f limitation, prescribing the time within which proposed amendments shall be adopted or be treated as waived, o u g h t by a ll m ea n s to b e p a sse d . Id. at 635-36 (em phases added). See a lso Herman V. Ames, The P roposed A m en d m en ts to the C on stitu ­ tio n o f th e U n ited S ta te s D u rin g the F irst C en tu ry o f Its H isto ry, H.R. Doc. No. 3 5 3 ,54th Cong., 2d Sess., pt. 2, at 291-92 & n .l (1897). ’ C hief Justice Hughes wrote that “the question of a reasonable time in many cases would involve . . . an appraisal o f a great variety o f relevant conditions, political, social and economic.” 307 U.S. at 453. The four concurring Justices would have dism issed the case for lack of standing, see id. at 460-70 (opinion of Frankfurter, J.), but concurred in the C hief Justice’s conclusion on the broader ground that “Congress has sole and com plete control over the amending process, subject to no judicial review.” Id. at 459 (Black, J., concurring). Justices Butler and McReynolds in dissent found the issue justiciable and concluded that under D illo n “more than a reasonable tim e had elapsed” for ratification of the Child Labor Amendment. Id. at 473 (Butler. J. dissenting). We discuss C olem an’s political question holding in Part II, infra. 92 not receive ratification by the States within a reasonable period of time was obiter, inasmuch as this question was not before the court in the instant case.”); see also Brief for the United States Amicus Curiae at 25, Coleman v. Miller, 307 U.S. 433 (1939) (No. 38-7) (“It was unnecessary in [Dillon] to consider whether a proposed amendment would expire with the passage of time in the absence of [a limitation] provision . . . ,”).10 Nor is Coleman authoritative as to contemporaneity. The Coleman Court’s discussion of Dillon's “reasonable time” inference was simply not part of its holding. Although Chief Justice Hughes’s opinion for three members of the Court did approve of the “cogent reasons” for requiring contemporaneity outlined in Dillon, see 307 U.S. at 452-53, the four remaining Justices com­ prising the seven-vote majority on the dispositive “political question” issue specifically repudiated Dillon. The four concurring Justices called for “dis­ approval of the conclusion arrived at in Dillon v. Gloss, that the Constitution impliedly require[d] that a properly submitted amendment must die unless ratified within a ‘reasonable time.’” Id. at 458 (Black, J., concurring) (foot­ note omitted).11 Moreover, Chief Justice Hughes’s conclusion does not logically imply that Dillon was correct. Having declined to address the content of an implicit time limit, it leaves open for Congress the conclusion that there is no time limit at all. 3. On its merits, the reasoning of Dillon is unpersuasive in both its spe­ cific arguments and in its broader methodology. The Dillon Court’s first 10 Indeed, some have argued that the entire opinion o f the Court in D illon was a dictum and must be considered “dubious” authority at best. S ee Note, The Process o f C o n stitutional A m e n d m e n t, 79 Colum. L. Rev. 106, 126 n.75 (1979); Ernst Freund, L eg isla tive P roblem s a n d S o lutions, 7 A.B.A. J. 656, 65657 (1921). The challenge to the Eighteenth Amendment in D illo n was baseless because the seven-year limitation at issue was part of the text of the amendment and was therefore itself ratified by the States; the petitioner did not claim that Congress lacked authority to include such a limitation in the am end­ ment itself. Note, 79 Colum. L. Rev. at 126 n.75. S ee Brief for Appellee at 5, D illon v. G lo ss, 256 U.S. 368 (1921) (No. 20-251) (“The amendment having been ratified by the requisite num ber of States within the time limitation provided in section three, it is unimportant whether that section is valid or invalid.”). “ [T]he Suprem e Court, apparently mistaking the actual facts o f the case submitted to it, stated and decided the case as though the time limit for ratification had been contained . . . in the Joint Resolution o f Congress . . . . ” Willoughby, at 596-97. "W e do not believe that Chief Justice Hughes's opinion must be treated as a holding o f the Court because it rested on a “narrower ground” than Justice Black’s. Ordinarily, where an opinion for the Court is fragmented, as in C olem an, the opinion of the Justices concurring in the judgm ent on the narrowest grounds is regarded as the Court's holding. S ee M a rks v. U nited S ta tes, 430 U.S. 188, 193 (1977); G regg v. G eorgia, 428 U.S. 153, 169 n. 15 (1976) (opinion o f Stewart, Powell and Stevens, JJ.); K ing v. P alm er, 950 F.2d 771, 778 (D.C. Cir. 1991) (Silberman, J., concurring), cert, d e n ie d , 550 U.S. 1229 (1992). However, “the narrowest opinion must represent a common denominator o f the C ourt’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgm ent.” K ing, 950 F.2d at 781. The “reasonable time” rule thus cannot be considered a holding o f C olem an because it was specifically rejected by four/concurring Justices. C olem an “is not a case in which the concurrence [here the three-justice H ughesfaction] posits a narrow test to which the plurality must necessarily agree as a logical consequence of^its own, broader position.” Id. at 782. “In other words, it is not a case in which there is an implicit majority o f the court" on the issue whether Article V requires reasonably contemporaneous ratification. Id. 93 consideration was that proposal and ratification are steps in a single process and hence should not be widely separate in time. This argument simply assumes its conclusion — that the process is to be short rather than lengthy. Second, Dillon argued that because amendments are to be proposed only when needed, the implication is that they should be dealt with promptly. But necessity is not the same as emergency. Thus, Story has written: The guards [in Article V] against the too hasty exercise of the [amendment] power, under temporary discontents or excite­ ments, are apparently sufficient. Two thirds of congress, or of the legislatures of the states, must concur in proposing, or requiring amendments to be proposed; and three fourths of the states must ratify them. Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying amend­ ments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judg­ ment may be passed upon them, unless some pressing emergency calls for instant action. . . . . . . The mode, both of originating and ratifying amendments . . . must necessarily be attended with such obstacles and de­ lays, as must prove a sufficient bar against light or frequent innovations. Commentaries, §§ 959-960, at 681-82. The States that have ratified the Congressional Pay Amendment only recently evidently consider it to be just as necessary today as the first Congress presumably thought it was in 1789. Finally, Dillon suggests that Article V is designed to seek consensus, and that consensus must be contemporaneous. Again, even assuming that it is proper to interpolate terms into a constitutional provision in order to serve its purported end — a question we address below — this reasoning is faulty. Consensus does not demand contemporaneity. The sort of lasting consensus that is particularly suitable for constitutional amendments may just as well be served by a process that allows for extended deliberation in the various states. There have been occasions when it has taken decades to build the consensus within Congress needed for a two-thirds vote on a proposed amend­ ment.12 In the absence of a time limit in the original amendment proposal, it 11 S ee, e .g .. Senate Hearings, at 134-35 (statement o f Professor Thomas I. Emerson) (“History has dem ­ onstrated that a long period of time is necessary for the nation to make up its mind with respect to fundam ental changes . . . . Thus the W om en’s Suffrage Amendment was under consideration for nearly three quarters o f a century.” ). 94 would appear to be equally true that it may legitimately take many decades to build the three-fourths consensus required for the states’ approbation.13 More fundamentally, Dillon rests on a faulty approach to the interpreta­ tion of the Constitution, and in particular those provisions that determine the structure of government. The amendment procedure, in order to function effectively, must provide a clear rule that is capable of mechanical applica­ tion, without any need to inquire into the timeliness or substantive validity of the consensus achieved by means of the ratification process. Accord­ ingly, any interpretation that would introduce confusion must be disfavored. As the Supreme Court has explained, the Constitution is designed to provide “[e]xplicit and unambiguous provisions” to govern the structure of govern­ ment. INS v. Chadha, 462 U.S. 919, 945 (1983) (construing the presentment and bicameralism provisions of Article I). The very functioning of the govern­ ment would be clouded if Article V, which governs the fundamental process of constitutional change, consisted of “open-ended” principles without fixed appli­ cations. The alternative to procedural formalism is uncertainty and litigation.14 As explained above, the terms of Article V provide a clear rule: any amendment once proposed “shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.” The reading according to which Article V contains an im­ plicit time limit, by contrast, introduces so much uncertainty as to make the ratification process unworkable. The two stages of the amendment process are proposal and ratification. The latter is done by states acting through legislatures or conventions. In order to be able to carry out its function in the ratification process, any state that is contemplating ratification must know whether an amendment is in fact pending before it. That is not a matter of degree; the proposed amendment is either pending or not. 11 It is conceivable that the goal of consensus, if there is one. could be defeated where the last State to ratify harbors an entirely different intent or purpose in approving the amendment than did the first ratifying States o r the proposing Congress. Thus, for example, the meaning o f the words o f an am end­ ment chosen by the proposing Congress could conceivably change dramatically with the passage o f time. If there is a substantive consensus requirement beyond the procedural formalities o f Article V, this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opin­ ion on any hypothetical scenario that may present a more fundamental challenge to the notion of con­ sensus. We conclude only that consensus itself does not necessarily require contemporaneity. M ore­ over, of course, if the absence of a time limit introduces a danger into the Article V amendment process, the solution is to specify a time limit, either in the text of the amendment or the proposing resolution. 14 See Walter Dellinger, The L eg itim a cy o f C onstitu tio n a l C hange: R ethinking the A m e n d m e n t P rocess, 97 Harv. L. Rev. 386,418 (1983) (“Dellinger”): “ Attention to th[e] formalities [specified in Article V] is more likely to provide clear answers than is a search for the result that best advances an imputed ‘policy’ of ‘contem poraneous consensus.’” Professor Dellinger nevertheless maintains that a proposed am end­ ment, like the Congressional Pay Amendment, that languishes for years without action by state legisla­ tures could be considered dead. Id. at 425. Dellinger's “doctrine o f desuetude," however, has itself been criticized as “an anomolous position" in light of his reliance on the formalities o f Article V. John R. Vile, J u d ic ia l R eview o f the A m en d in g Process: The D ellinger-Tribe D eb a te, 3 J.L. & Pol. 21, 33 (1986). S e e also Laurence H Tribe, A C onstitution We A re A m en d in g : In D efen se o f a R estra in ed J u d ic ia l R ole, 97 Harv. L. Rev. 433, 434 n.6 (1983). In our view, the notion of desuetude is fraught with all o f the short­ com ings that characterize the "reasonable time” rule of D illon and must be rejected for the sam e reasons. 95 According to the theory that Article V contains an implicit time limit, the State must deduce that it can ratify only if the time since proposal is still a reasonable one. The implicit reasonable time rule can take one of two forms. First, the Constitution might be said to impose the same time period with respect to all proposed amendments. Putting aside the implausibility of the suggestion that a legal rule includes a time certain without stating it, this reading would require each state somehow to decide for itself what limitation the Constitution implicitly imposes. This question is extremely difficult, and there is no reason to believe that the different States would answer it in the same way.15 In fact, the long history of congressional treatment of time limits demonstrates that there is no agreement as to what period of time would be reasonable.16 The other possible form of the implicit time limit rule is that the “reason­ able” time differs from amendment to amendment, depending on any number of unstated factors. This theory requires that the States undertake an inquiry even more difficult than the search for an implicit but specific time limit. To take an example, this approach may suggest that the merits of a proposal may affect the question whether it is still pending, because one approach to judging the reasonableness of the period of ratification is to ask if the prob­ lem the amendment was designed to address is still pressing — a question that is inseparable from the substance of the amendment. However the question of reasonableness is to be answered, it is plain that answering it can be extremely difficult, and that expecting all the States to answer it in the same way is unreasonable. The implicit time limit theory thus imposes an impossibly burdensome requirement on ratifying States — that they discern the implicit limitation and, if the system is to work smoothly, that they all discern the same one. Most discussions of the implicit time limit obscure this difficulty by shifting attention away from the situation of the States. For instance, Chief Justice Hughes’s opinion in Coleman indicates that the reasonableness of the period that has passed since proposal is for Congress to decide at the time of promulgation. See 307 U.S. at 454. Congress’s decision at the end of the 15 The com pelling need for regularity and certainty in the amendment procedure is exactly what prompted C ongress to include a tim e limit in the Eighteenth Amendment, which led the Court in D illo n to con­ sider the question”[w]hether a definite period for ratification shall be fixed so that all may know what it is a n d s p e c u la tio n o n w h a t is a reasonable tim e m a y be a vo id ed ." 256 U.S. at 376 (emphases added). “ W hat seem s to have been the first attem pt to impose a time limit on the States occurred during con­ gressional consideration o f the Fourteenth Amendment, when Senator Buckalew proposed an am end­ m ent to the join t resolution that would have required ratification within three y ears. Cong. Globe, 39th Cong., 1st Sess. 2771 (1866). In 1917, during debates on the Eighteenth Amendment, Senator Ashurst stated that he could support a time lim it o f “ 10, 12, 14, 16, 18, or even 20 years.” 55 Cong. Rec. 5557 (1917). Senator Harding proposed an amendm ent to the joint resolution that would have limited states' consideration to a period o f six years. Senator Cummins offered a substitute amendment that would have am ended Article V to require state ratification o f all amendments proposed after January 1, 1917, to e ig h t y e a r s , expressing the view th at what is a “reasonable” period for ratification might differ in each case. 55 Cong. Rec. 5652 (1917). During debate on the Child Labor Amendment in 1924, Repre­ sentative Linthicum and Senator Fletcher offered amendments that would have required ratification within fi v e y e a r s of proposal. 65 Cong. Rec. 7288, 10,141 (1924). 96 process, however, can be of no use to States while that process is going on. According to Chief Justice Hughes’s approach, the States must make deci­ sions concerning constitutional amendments without knowing whether those decisions matter until they leam from Congress at some later date, if ever.17 The implicit time limit thesis is thus deeply implausible, because it intro­ duces hopeless uncertainty into that part of the Constitution that must function with a maximum of formal clarity if it is to function. In sum, the dictum of Dillon and the view of Chief Justice Hughes’s plurality in Coleman are not authoritative nor are they persuasive. Article V contains no time limit not stated in its text. The Congressional Pay Amendment — rather, the Twenty-Seventh Amendment — although well aged, is not stale.18 II. You have also asked whether, under 1 U.S.C. § 106b, the Archivist was required to publish the Congressional Pay Amendment along with his cer­ tificate specifying that the Amendment has become valid, to all intents and purposes, as part of the Constitution. We believe that he was required to do so. A. Section 106b provides: Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, ac­ cording to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has be­ come valid,, to all intents and purposes, as a part of the Constitution of the United States. 17See Note, C ritical D etails: A m en d in g the U nited S ta tes C o n stitu tio n , 16 Harv. J. on Legis. 763, 767 (1979) (“Although C olem an did spell out some guidelines, the state legislatures would still only specu­ late about what amount o f time Congress would conclude was reasonable. Only some direct signal from Congress before or during ratification would definitely prescribe the time for action in the states.”). Se e a lso 2 David K. Watson, The C onstitution o f the U n ited States 1311-12 (1910) (“Who but the state can judge of what would be a reasonable time? It is for the state to ratify and cannot the state take its own time to do it?”), q u o ted in C ase N ote, 24 Minn. L. Rev. 393, 394 n.9 (1940). "S ev eral other amendments to the Constitution have been proposed to the States without time limits and have never received the approval of three-fourths of the States. See C onstitution A n n o ta ted , at 5153. A resolution was introduced in the Senate purporting to declare that those proposals have "ex­ pired,” but it was not passed. See S. Con. Res. 121, 102d Cong., 2d Sess. (1992); 138 Cong. Rec. S6839, S6908 (daily ed. May 19, 1992). B u t see 138 Cong Rec. S6949 (daily ed. May 2, 1992) (Sena­ tor Sanford asserting that “today the Senate also decided to declare that four other proposed and pend­ ing amendments . . . were to be considered to have lapsed”). This opinion does not address the current vitality of any o f those amendments. We note, however, that the status of the amendment proposed in 1861 providing that “[n]o amendment shall be made to the Constitution which will authorize or give Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State,” C onstitution A n n o ta te d at 52, may be determined by the subsequent adoption of the Thirteenth Amendment. 97 1 U.S.C. § 106b. The statutory directive is clear. First, the Archivist must determine whether, as a matter of law, he has received “official notice” of an amendment’s adoption “according to the provisions of the Constitution.” Id. If he determines that he has received such notice, he must publish the amend­ ment with a certificate specifying, inter alia, that the amendment “has become valid, to all intents and purposes, as a part of the Constitution.” Id. The statute allows the Archivist no discretion in this regard. Congress has required the executive branch to certify the validity of con­ stitutional amendments since 1818. In that year, Congress established a statutory mechanism for the publication of constitutional amendments as part of a general provision “for the publication of the laws”: [W]henever official notice shall have been received, at the Department of State, that any amendment which heretofore has been, or hereafter may be, proposed to the constitution of the United States, has been adopted, according to the provi­ sions of the constitution, it shall be the duty of the said Secretary of State forthwith to cause the said amendment to be published in the . . . newspapers authorized to promulgate the laws, with his certificate, specifying the states by which the same may have been adopted, and that the same has be­ come valid, to all intents and purposes, as a part of the constitution of the United States. Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. Over time, Congress deleted the reference to newspapers and transferred the duty of publication from the Secretary of State, first to the Administrator of General Services, see Act of Oct. 31, 1951, ch. 655, § 2(b), 65 Stat. 710 (1951); Reo'rg. Plan No. 20 of 1950, § 1(c), 64 Stat. 1272, and then to the Archivist, see National Archives and Records Administration Act of 1984, Pub. L. No. 98-497, § 107, 98 Stat. 2280, 2291 (1984). The substance of the statutory directive, however, has remained the same. Section 106b and its antecedents have long been understood as imposing a ministerial, “record-keeping” duty upon the executive branch. See 96 Cong. Rec. 3250 (Message from President Truman accompanying Reorg. Plan No. 20 of 1950); Judith L. Elder, Article V, Justiciability, and the Equal Rights Amendment, 31 Okla. L. Rev. 63, 75-76 (1978). The Archivist may not refuse to certify a valid amendment. See United States ex rel. Widenmann v. Colby, 265 F. 998, 999 (D.C. Cir. 1920) (no discretion to refuse publication once official notice received, as publication is merely “ministerial act”), a ff’d mem. sub. nom. U.S. ex rel. Widenmann v. Hughes, 257 U.S. 619 (1921); United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff'd, 845 F.2d 98 43 (2d Cir.), cert, denied, 488 U.S. 827 (1988).19 Nonetheless, section 106b clearly requires that, before performing this ministerial function, the Archi­ vist must determine whether he has received “official notice” that an amendment has been adopted “according to the provisions of the Constitu­ tion.” This is a question of law that the Archivist may properly submit to the Attorney General for resolution. See 28 U.S.C. § 511 (“The Attorney General shall give his advice and opinion on questions of law when required by the President.”).20 B. As we concluded above, the Congressional Pay Amendment has been adopted in accordance with the Constitution. The only obstacle to the Archivist’s promulgation of the amendment would be the thesis, advanced by some commentators, that under Coleman v. Miller, 307 U.S. 433 (1939), Congress alone among the branches may determine whether an amendment has been constitutionally adopted. Under this theory, the Archivist must wait for a determination of the matter by Congress or, at most, issue a “conditional certification” of an amendment in deference to possible con­ gressional action. We believe that Coleman is not authority for this theory, and that congressional promulgation is neither required by Article V nor consistent with constitutional practice. As a consequence, we believe that the Archivist was not required to wait for a congressional promulgation to certify the Congressional Pay Amendment as valid. 1. In Coleman, the Court considered the validity of the ratification by Kan­ sas of the Child Labor Amendment, proposed by Congress in 1924. 307 U.S. at 435-36. Members of the Kansas Legislature had brought a state-court action alleging that the Kansas ratification had been invalid because, inter alia, the State Legislature had ratified the amendment some thirteen years after Con­ gress had proposed it. Congress had not imposed a time-limit on ratification ‘’ Indeed, there is authority for the proposition that the Archivist’s Certificate is not necessary to an am endm ent's validity. The text of Article V contains no such requirement. See a lso D illon v. G lo s s , 256 U.S. 368, 376 (1921) (Eighteenth Amendment became valid on the date it received its final ratifi­ cation; the date o f publication was “not material, for the date of [an amendm ent's] consummation, and not that on which it is proclaimed, controls.”). 20 Others have recognized the Attorney General's role in resolving such legal questions. Concerning the validity of ratifications of the Equal Rights Amendment, Professor Dellinger questioned w hy the Administrator o f General Services, at that time the official responsible for certifying new amendments, would submit the question to Congress: "An administrator uncertain about the lawful exercise o f one of her responsibilities is normally expected to refer the question to the Attorney General for an opinion and then act in accordance with that opinion.” 97 Harv. L. Rev. at 402. That was exactly w hat the administrator at the time intended to do. Asked what would be done if the requisite number o f states had ratified but some States had purported to rescind their ratifications, the Deputy Archivist stated that “we would call upon the Attorney General to determine the answer to the legal question on rescission.” Senate Hearings, at 109 (testimony of James E. O’Neill). 99 when it had proposed the amendment to the States. The Supreme Court of Kansas held that the amendment remained susceptible to adoption despite the thirteen-year delay, and dismissed the suit. Id. at 437. The Supreme Court of the United States reversed. There was no majority opinion on the validity of the Kansas ratification. Three Justices — Chief Justice Hughes, Justice Stone, and Justice Reed — determined that the ques­ tion w hether Kansas had ratified within a “reasonable time” was a nonjusticiable political question. Chief Justice Hughes asserted that the resolution of such a question would depend on social, political, and eco­ nomic conditions that courts were incompetent to address. Id. at 453-54. “On the other hand,” he reasoned, “these conditions [were] appropriate for the consideration of the political departments of the Government.” Id. at 454. The Hughes opinion concluded that the question whether an amend­ ment had lapsed should “be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment.” Id. Four Justices — Justice Black, joined by Justices Roberts, Frankfurter, and Douglas — went even further. They disclaimed any judicial review of a congressional determ ination as to the adoption of an amendment. “ [Undivided control of [the amendment] process had been given by [Article V] exclusively and completely to Congress,” Justice Black wrote. Id. at 459 (Black, J., concurring). “Therefore, any judicial expression amounting to more than mere acknowledgement of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional au­ thority.” Id. at 459-60. Two Justices — Justices Butler and McReynolds — dissented on the ground that the amendment was invalid because of the thirteen-year delay. Id. at 473-74 (Butler, J., dissenting). Neither Chief Justice Hughes nor Justice Black explained the constitu­ tional basis for the assertion that Congress had authority to “promulgate” an amendment. Rather, Chief Justice Hughes relied on the “special circum­ stances” surrounding the adoption of the Fourteenth Amendment in 1868. Id. at 449-50.21 At that time, as we have seen, the duty of publication of constitutional amendments rested with the Secretary of State. Because of irregularities in the ratifications of Ohio and New Jersey — the legislatures of both States had attempted to rescind their earlier votes to approve the amendment — Secretary Seward issued a “conditional certification” of the Fourteenth Amendment on July 20, 1868. Proclamation No. 11, 15 Stat. 706 (1868). Secretary Seward certified that if the resolutions of Ohio and New Jersey were still effectual, notwithstanding the subsequent attempts to re­ scind, “then the . . . amendment . . . ha[d] become valid, to all intents and 31Justice Black provided no support for his assertion. 100 purposes, as a part of the Constitution.” Id. at 707. Secretary Seward dis­ claimed any authority to resolve the matter himself. Id. The next day, Congress passed a concurrent resolution declaring the Four­ teenth Amendment to be a part of the Constitution and directing Secretary Seward to promulgate it as such. Cong. Globe, 40th Cong., 2d Sess. 4266, 4295-96 (1868). The Senate passed the resolution without any debate, id. at 4266, and in the House the only question was whether Georgia, of whose ratification the Speaker had received notice by telegraph, should be included on the list of ratifying States. Id. at 4295-96. One week later, on July 28, 1868, Secretary Seward issued a second proclamation, “in execution o f ’ the concurrent resolution and “in conformance thereto,” certifying the Fourteenth Amendment as valid. Proclamation No. 13, 15 Stat. 710 (1868). “Thus,” observed Chief Justice Hughes, in the case of the Fourteenth Amendment “the political departments of the Government dealt” with ques­ tions concerning the ratification of the amendment. Coleman, 307 U.S. at 449. He apparently used the events surrounding the adoption of the Four­ teenth Amendment as a model and simply assumed that, if and when the issue arose with respect to the Child Labor Amendment, the same proce­ dures would obtain. See id. at 454 (“The [eventual] decision by the Congress, in its control of the action of the Secretary of State, of the question whether the [Child Labor Amendment] had been adopted within a reasonable time would not be subject to review by the courts.”). The plurality opinion did not address the question whether, in the event the Secretary of State decided to certify the amendment on his own, congressional promulgation would still be necessary. Indeed, given the posture of the case, the Justices could not have addressed that question: the Child Labor Amendment was nowhere near ratification, and circumstances had not required the Secretary to make any decision regarding the validity of the amendment.22 Chief Justice Hughes’s opinion is thus best understood as resting on a political question rationale: courts will not attempt to resolve certain ques­ tions concerning the validity of states’ ratifications of constitutional amendments. Rather, the decision of the political branches will control. To read the Hughes opinion as addressing the relationship between the political branches and requiring the Executive to defer to Congress on the adoption of an amendment would be to resolve an issue that was not before the Coleman Court. As it was, the Coleman dissenters took their brethren to task for even addressing the role of Congress in the amendment process. The Court had not heard argument on that point, they protested; Congress’s role had not been “raised by the parties or by the United States appearing as amicus c u r i a e 307 U.S. at 474 (Butler, J., dissenting). At most, Coleman stands for the proposition that the validity of a constitutional amendment is “ The Hughes opinion endorsed the Court’s earlier holding in L e ser v. G a m eit, 258 U.S. 130, 137 (1922), that the Secretary would be bound by official notice from a state respecting its ratification. Se e C o le m a n , 307 U.S. at 451. 101 a political question. That proposition has no bearing on the actions of the Archivist, an officer of one of the political branches.23 2. On its merits, the notion of congressional promulgation is inconsistent with both the text of Article V of the Constitution and with the bulk of past practice.24 Article V clearly delimits Congress’s role in the amendment pro­ cess. It authorizes Congress to propose amendments and specify their mode of ratification, and requires Congress, on the application of the legislatures of two-thirds of the States, to call a convention for the proposing of amend­ ments. Nothing in Article V suggests that Congress has any further role. Indeed, the language of Article V strongly suggests the opposite: it provides that, once proposed, amendments “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by” three-fourths of the States. (Emphasis added.) As Professor Dellinger has written, the Constitution “re­ quires no additional action by Congress or by anyone else after ratification by the final state.” 97 Harv. L. Rev. at 398. To interpret Article V “as requiring or permitting” a further step of congressional promulgation is, in the words of another scholar, “no more defensible than to find a third house of Congress hidden cleverly in the interstices of the constitutional language vesting all legislative power in a House and a Senate.” Rees supra, at 899. 23We have discussed C hief Justice H ughes’s opinion because it is the only part of C olem an other than the judgm ent that m ight be considered authoritative. If the views o f the majority Justices had any com m on ground. C hief Justice Hughes's occupied the narrowest portion of that ground: Justice B lack's disclaim er of any judicial inquiry is broader than the C hief Justice’s approach. Scholars doubt whether C o le m a n has authority even as a political question decision. Grover Rees III, Throw ing A w ay the K ey: T h e U n c o n stitu tio n a lity o f the Equal R ig h ts A m en d m en t E x ten sion, 58 Tex. L. Rev. 875, 887-88 (1980) (“ R ees” ); Dellinger, at 388 n.8. See a lso A F L -C IO v. M a rch Fong E u, 686 P.2d 609, 616 (Cal. 1984) Indeed, C hief Justice Rehnquist has questioned whether C o lem an's analysis still obtains in the context o f A rticle V. S e e U h le rv . A F L-C IO , 468 U.S. 1310(1984) (Rehnquist, Circuit Justice); b u t cf. G o ld w a ter v. C a rte r, 444 U.S. 996, 1002 (1979) (Rehnquist, J„ concurring) (relying on C olem an to conclude that P resident’s pow er to denounce a treaty was a nonjusticiable political question). 24In 1977, this Office stated that Congress could by concurrent resolution extend the tim e-lim it for ratification o f the Equal Rights Amendment. S ee Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel (Oct. 31, 1977) (“ O ctober M em orandum "). S ee also E x te n d in g the R a tifica tio n P e rio d f o r the P ro p o sed E qu a l R ig h ts A m e n d m e n t: H e a rin g s on H .J. Res. 638 B e fo re the S ubcom m . on C ivil a n d C o n stitutional R ig h ts o f the H o u se C o m m , on th e J u d ic ia ry , 95th Cong., 1st Sess. 5-7 (1977) (statement of John M. Harmon, A ssis­ tant A ttorney G eneral, Office of Legal Counsel); Senate Hearings, supra, note 6. Relying on C olem an, this O ffice further concluded that Congress has the exclusive power to determine whether an amend­ m ent h as been tim ely adopted. See October M emorandum at 17, 20-21, 43. See a lso P ow er o f a State L e g is la tu r e to R e s c in d its Ratification o f a C o n stitu tio n a l A m en d m en t, 1 Op. O.L.C. 13 (1977). In an aside, w e specifically referred to the Congressional Pay Amendment and noted our view that if and when the thirty-eighth ratification was received, Congress would have the duty to decide whether too much tim e had passed for the Amendment to be viable. S e e October Memorandum at 21 & n.26; see a ls o id. at 35 n.43 (Congress may determine whether an amendment has been adopted by concurrent reso lu tio n ). T hose opinions arose in a factual setting quite different from the instant case. The “reproposal” o f a constitutional amendment may be an exclusively congressional function in a way that th e certification o f a ratified amendment is not. See H o llin g sw o rth v. Virginia, 3 U.S. 378 (1798) (thought to stand for the proposition that the President’s signature is not needed for proposal o f an am endm ent). To the extent that our earlier opinions suggest that Congress alone must make the deter­ m ination o f the adoption o f a constitutional amendment, we reject them today. 102 In light of the overall structure of the Constitution, it would be surprising if Article V did confer such exclusive power on Congress. The fundamental features of the American constitutional system - federalism and separation of powers — produce a division of power designed to ensure that the people, rather than any organ of the government, are sovereign. As Attorney Gen­ eral Edward Bates explained in 1861, the Framers of the Constitution rejected the notion that “Parliament is omnipotent.” See 10 Op. Att’y Gen. 74, 75 (1861). Instead, the federal government “is not vested with the sovereignty, and does not possess all the powers of the nation. It has no powers but such as are granted by the Constitution.” Id. at 77. The same principle undergirds the separation of powers: the three branches of the federal government “are co-ordinate and coequal — that is, neither being sovereign, each is indepen­ dent in its sphere, and not subordinate to the others.” Id. at 76. To give one branch of government ultimate control over the Constitution’s very content would be to repudiate the American approach in favor of a return to parlia­ mentary supremacy. Article V, however, shows that the Constitution is consistent in its rejection of governmental sovereignty. The drafting history of Article V reaffirms this conclusion. The Federal Convention designed the amendment system so that both Congress and the states played important roles. At the convention, the Framers manifested a marked distrust of Congress in the amendment process. An early outline of the Constitution specified that the Constitution could be amended “without requiring the assent of the Natl. Legislature.” 1 Records Federal Convention o f 1787 121 (Max Farrand, ed., revised ed. 1966). In supporting that provi­ sion, George Mason argued: “It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.” Id. at 203.25 Mason reaffirmed his concern in the final days of the convention and argued that Article V gave Congress too much power and ability to abuse the process. 2 Records o f the Federal Convention o f 1787 629 (Max Farrand, ed., revised ed. 1966). Article V was specifically altered by the convention to accommodate Mason’s concern. Id. Commentary during the ratification debates bears out the Framers’ inten­ tion to check the power of Congress in the amendment process. Madison explained in Federalist No. 39 that the amendment system balanced the States and the federal government, so that the system is “neither wholly federal, nor wholly national.” The Federalist No. 39, at 257 (James Madison) (Jacob E. Cooke ed., 1961). In discussing the provisions for calling a conven­ tion upon the petition of two-thirds of the States, Alexander Hamilton states: [The amendments so proposed] “shall be valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in “ The Congressional Pay Amendment, dealing as it does with the power o f members o f Congress to increase their salaries, is just the sort o f amendment to which Mason’s comm ent would apply most readily. 103 three-fourths thereof.” The words of this article are peremp­ tory. The congress “shall call a convention.” Nothing in this particular is left to the discretion of that body [Congress]. The Federalist No. 85, at 593 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961). These words are equally applicable to ratification of an amendment by three-fourths of the States. Discussing Article V more generally, Hamilton concluded by observing that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” Id. These statements are inconsistent with the notion that Con­ gress has a general power of superintendence over the amendment process. Congressional promulgation is also at odds with the bulk of past practice in this area. As we have seen, Chief Justice Hughes in Coleman used the “special circumstances” surrounding the adoption of the Fourteenth Amend­ ment as a model for the only instance of congressional involvement in the promulgation of an amendment following ratification in more than two hun­ dred years. See, e.g., Dellinger, at 400. There has never been another “conditional certification” of an amendment by the executive branch.26 The concurrent resolution “promulgating” the Fourteenth Amendment, adopted with no substantive debate, was unnecessary and an aberration. The events surrounding the adoption of the Fifteenth Amendment two years later demonstrate that fact.27 Irregularities in State ratifications also plagued this Amendment — New York had attempted to rescind its ratifica­ tion, see Cong. Globe, 41st Cong., 2d Sess. 1444 (1870), and two other States, Ohio and Georgia, ratified the amendment only after having rejected it once, see Memorandum to Don W. Wilson, Archivist of the United States, from Martha L. Girard, Director of the Federal Register 6 (May 22, 1991). 26S e e Letter to Governors o f the Several States from Thomas Jefferson, Secretary of State (M arch 1, 1792), r e p r in te d in 2 The B ill o f Rights: A D o cu m en ta ry H istory 1203 (Bernard Schwartz, ed., 1971) (First through Tenth Amendments); President John Adams, Message to Congress, 7 Annals o f Cong. 809 (1798) (Eleventh Amendment); L etter to Governors of the Several States from James Madison, Secretary o f State (Sept. 25, 1804) (Twelfth Amendment), cited in C onstitution A nno ta ted , at 28 n.4; C ertification by W illiam H. Seward, Secretary of State, 13 Stat. 774 (1865) (Thirteenth Amendment); C ertification o f Ham ilton Fish, Secretary of State, 16 Stat. 1131-32 (1870) (Fifteenth Amendment); C ertification by Philander C. Knox, Secretary of State, Act of Feb. 25, 1913, 37 Stat. 1785 (1913) (Sixteenth Am endm ent); Certification by William Jennings Bryan, Secretary of State, Act o f May 31, 1913 ,3 8 Stat. 2049 (1913) (Seventeenth Amendment); Certification by Frank L. Polk, Acting Secretary o f State, Act o f Jan. 28, 1919, 40 Stat., “ Eighteenth Amendment to the Constitution” 1 (1919); Certifi­ cation by Bainbridge Colby, Secretary o f State, Act of Aug. 26, 1920, 41 Stat. 1823 (1920) (Nineteenth A m endm ent); Certification by Henry L. Stimson, Secretary of State, Act of Feb. 6, 1933,47 Stat. 2569 (1933) (Twentieth Amendment); Certification by W illiam Phillips, Acting Secretary of State, Act of Dec. 5, 1933, 48 Stat. 1749 (1933) (Twenty-First Amendment); Certification by Jess Larson, Adminis­ trator o f General Services, 16 Fed. Reg. 2019 (1951) (Twenty-Second Amendment); Certification by John L. M oore, A dm inistrator of General Services, 26 Fed. Reg. 2808 (1961) (Twenty-Third Amend­ m ent); Certification by Bernard L. Boutin, Administrator of General Services, 29 Fed. Reg. 1715(1964) (Tw enty-Fourth A m endment); Certification by Lawson B. Knott, Administrator o f General Services, 32 Fed. Reg. 3287 (1967) Twenty-Fifth Amendment), Certification by Robert L. Kunzig, Administrator of General Services, 36 Fed Reg. 12,725 (1 9 7 1) (Twenty-Sixth Amendment). 11 C hief Justice Hughes in Coleman briefly noted the events surrounding the ratification of the Fifteenth Am endm ent, but did not assign them any weight in this analysis. S e e 307 U.S. at 450 n.25. 104 On February 21, 1870, Senator Williams introduced a joint resolution declar­ ing that the Amendment had become valid as part of the Constitution. Cong. Globe, 41st Cong., 2d Sess. 1444 (1870). Shortly thereafter, the Senate passed a different resolution requesting that the Secretary of State inform the Senate which States had ratified the Amendment. Id. at 1653. On March 30, 1870, Secretary of State Hamilton Fish issued a proclama­ tion certifying that the Fifteenth Amendment had become valid. The proclamation noted the attempted rescission by New York, but did not men­ tion the questions regarding the Ohio and Georgia ratifications. 16 Stat. 1131 (1870). The Senate took no action in response to the proclamation, and Senator Williams allowed his earlier resolution to die. Cong. Globe, 41st Cong., 2d Sess. 3142 (1870). There was some debate in the House concerning the validity of the New York and Indiana ratifications, id. at 2298, but ultimately the House passed a resolution declaring that the Amend­ ment had become a binding part of the Constitution. Id. at 5441.28 At no time during the consideration of the Fifteenth Amendment did anyone in Congress suggest that congressional promulgation was essential to its valid­ ity. As the Fifteenth Amendment was adopted only two years after the Fourteenth, the absence of such a suggestion demonstrates that the congres­ sional promulgation of the Fourteenth Amendment was merely an aberration. If congressional promulgation is required, Secretary Fish illegally certi­ fied that the Fifteenth Amendment was part of the Constitution.29 Indeed, the executive branch would have illegally certified every amendment except the Fourteenth.30 If only to avoid this absurd conclusion, we must reject the assertion that only Congress may promulgate an amendment. III. We conclude that the Congressional Pay Amendment has been validly ratified pursuant to the procedures set forth in Article V, and that the Archi­ vist of the United States was required to promulgate the Twenty-Seventh Amendment pursuant to 1 U.S.C. § 106b. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office of Legal Counsel “ The House Resolution also confirmed the validity of the Fourteenth Amendment. Cong. Globe, 41st Cong., 2d Sess. 5441 (1870). 29The experience o f the Fifteenth Amendment also refutes a modified version of Justice Black’s thesis, under which congressional certification would be required in doubtful cases. The status of the Fifteenth Amendment was as doubtful as that of the Fourteenth, and for the same reasons. 30O f course, the certifications would nevertheless be binding on the courts. Se e L eser v. G arnett, 258 U.S. 130 (1922); U n ited S ta te s v. Thom as, 788 F.2d 1250, 1253 (7th Cir.) (Easterbrook, J.), cert, d e ­ nied. 479 U.S. 853 (1986), cf. F ield v. C lark, 143 U.S. 649, 669 (1892). 105 APPENDIX The Congressional Pay Amendment had its beginnings in the ratification conventions of States considering the original Constitution. Several States proposed amendments when they ratified the Constitution. Two of these, Virginia and New York, included a precedent to the Congressional Pay Amend­ ment. 2 The Bill o f Rights: A Documentary History 844, 916 (Bernard Schwartz, ed., 1971) (“Schwartz”).1 North Carolina proposed amendments on August 2, 1788, without at first ratifying the Constitution. Id. at 966, 977. Among the amendments it proposed was a congressional pay provision taken almost verbatim from Virginia’s. See id. at 970-71. Representative James Madison included Virginia’s proposal in the resolution of amend­ ments he proposed to the House on June 8, 1789. 4 Documentary History o f the First Federal Congress of the United States o f America 9, 10 (Charlene Bangs Bickford and Helen E. Veit, eds., 1986) (“4 First Congress"). On the motion of Elbridge Gerry, the proposed amendments of several States, in­ cluding New York’s congressional pay proposal, were also put before the House. Id. at 4, 19, 24. There was relatively little debate on the proposed Congressional Pay Amendment in Congress. Madison forecast that Congress’s power over the compensation of its members was unlikely to be abused, but nevertheless pointed out the impropriety of giving members the power “to put their hand into the public coffers, to take out money to put in their pockets.” 1 Annals of Cong. 457 (Gales & Seaton eds., 1789). Congressman John Vining later echoed this sentiment: “There was, to say the least of it, a disagreeable sensation, occasioned by leaving it in the breast of any man to set a value on his own work.” Id. at 756-57. Another Congressman, however, thought that “much inconvenience and but very little good would result” from the amend­ ment. Id. at 756 (statement of Theodore Sedgwick). Congress approved the proposal of twelve amendments to the Constitu­ tion on September 25, 1789. The Congressional Pay Amendment was approved with only a minor change in wording made in the Senate. See 4 First Congress, at 44-46. As sent to the states for ratification, it read: No law, varying the compensation for the services of the Sena­ tors and Representatives, shall take effect, until an election of Representatives shall have intervened. ‘ Virginia ratified the Constitution on June 25, 1788, after narrowly defeating a motion to propose am endm ents prior to ratification. See Schwartz, at 834-39. TWo days later, the convention proposed am endm ents, including: “That the laws ascertaining the compensation of senators and representatives for their services, be postponed, in their operation, until after the election of representatives immedi­ ately succeeding the passing thereof; that excepted which shall first be passed on the subject." Id. at 844. N ew York ratified the Constitution and proposed amendments on July 26, 1788. Among its proposed am endm ents was “That the Compensation for the Senators and Representatives be ascer­ tained by standing Laws; and that no alteration of the existing rate of Compensation shall operate for the Benefit o f the Representatives, until after a subsequent Election shall have been had." Id. at 916. 106 1 Documentary History o f the First Federal Congress o f the United States o f America 208 (Linda Grant De Pauw, et al., eds., 1972) (“ 1 First Congress") (reproducing entry from Appendix to Senate Legislative Journal, 1st Cong., 1st Sess.). C f Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789). The pro­ posed amendments were transmitted to the eleven States that had ratified the Constitution, as well as to North Carolina and Rhode Island. See 4 First Congress, at 9, 48. When the amendments were proposed, nine States constituted the threefourths necessary for ratification of the amendments. Before any States had acted on the amendments, North Carolina ratified the Constitution; nine States still constituted three-fourths. The Bill of Rights and the States: The Colo­ nial and Revolutionary Origins o f American Liberties xxi (Patrick T. Conley and John P Kaminski, eds., 1992) (“Bill of Rights and the States”). The Congressional Pay Amendment had been ratified by only four States before Rhode Island ratified the Constitution on May 29, 1790, bringing the num­ ber of States in the Union to 13, three-fourths of which was ten. Before any more States ratified the amendment, Vermont joined the Union, bringing the total to 14, three-fourths of which was eleven. Regardless of the time at which the “three-fourths” requirement was determined, however, the Con­ gressional Pay Amendment was never close to that total in its initial period. It received only two more ratifications in 1791, for a total of six.2 Thomas Jefferson, as Secretary of State under George Washington, was responsible for monitoring the States’ actions on the proposed amendments. Id. at xxii. His tally shows that of the thirteen original States and Vermont, six ratified the amendment. Id. at xxiii (photographic reproduction of Jefferson’s tally). Five States rejected the amendment, three of them “si­ lently,” meaning that the ratification documents made no reference to the Congressional Pay Amendment. Id. at xxii-xxiii. The other three States did not respond: Massachusetts, Connecticut, and Georgia. Id. The six States that ratified the Congressional Pay Amendment along with what is now the Bill of Rights are: o M aryland. D ecem ber 19, 1789. 1 F irs t C o n g re ss, at 349-50 (reproducing e n try in S en ate Journal o f June 14, 1790). o N orth C arolina, D ecem ber 22, 1789. 1 F irst C o n g re s s, at 346-47 (reproducing en try in Senate Journal o f June 11, 1790). o S outh C arolina, January 28, 1790, 1 F irs t C o n g re ss, at 275-76 (reproducing e n try in Senate Journal o f April 3, 1790). o D elaw are, January 28, 1790, 1 F irst C o n g re ss, at 253-54 (reproducing e n try in S enate Journal o f M arch 8, 1790). o Verm ont, N ovem ber 3, 1791, Schw artz, at 1202-03; B ill o f R ig h ts a n d the S ta te s , at xxii. o V irginia, D ecem ber 15, 1791, Schw artz, at 1202. 2 By contrast, the third through twelfth proposed amendments, now known as the Bill o f Rights, were ratified by the requisite eleven States by December 15, 1791, when Virginia ratified them. See B ill o f R ights a n d the S ta tes, at xxii; Schwartz, at 1201-02. 107 The Bill of Rights was ratified without the Congressional Pay Amend­ ment by five States, two of which have since ratified the Congressional Pay Amendment: o N ew H am pshire ratified th e first and third through tw elfth proposed am endm ents on January 25, 1790. 1 F ir s t C o n g re ss, a t 348-49 (reproducing entry in S enate Jo u rn al o f June 14, 1790). T he docum ent transm itted to the C ongress indicates th at it “rejected” the second article o f the proposed am endm ents. Id. at 348. N ew H am pshire subsequently ratified the C ongressional Pay A m endm ent on M arch 7 , 1985. S e e 131 Cong. R ec. 6689 (1985); 138 C ong. Rec. S6831 (daily ed. M ay 19, 1992). o N ew Jersey ratified all but the second am endm ent on N ovem ber 20, 1789. 1 F irs t C o n g r e s s , at 475-76 (reproducing entry in Senate Journal o f A ugust 6, 1790). T h e notification transm itted to C ongress d id not m ention the second proposed am endm ent. Id. N ew Jersey subsequently ratified the C ongressional P ay A m endm ent on M ay 7, 1992. 138 Cong. Rec. S 6831, S6846 (daily ed. M ay 19, 1992). o T h e N ew York legislature ratified the first and th ird through tw elfth proposed am en d m ents on February 24, 1790. 1 F ir s t C o n g re ss, at 279-80 (reproducing en try in S enate Journal o f April 5, 1790).3 The docum ent transm itted to the C o n g ress indicates that it ratified all o f the proposed am endm ents “except the second.” Id . Although th a t docum ent d o es not m ention a form al rejection o f the p ro p o sed am endm ent, a contem porary new spaper account reported that it w as rejected by a vote of 52 to 5. Schw artz, at 1178. o R h o d e Island ratified all b u t the second am endm ent on June 11, 1790. S e e 1 F irst C o n g r e s s , at 389 (reproducing entry in Senate Journal o f June 30, 1790); B ill o f R ig h ts a n d th e States, a t xxii. The notification transm itted to C ongress does not m ention the second proposed am endm ent. 1 F irst C o n g re s s, at 389. o P en n sylvania ratified all b u t the first and second proposed am endm ents on M arch 10, 1790. 1 F irst C o n g re s s, at 260-61 (reproducing entry in S enate Journal o f M arch 16, 1790). The notification transm itted to C ongress does not m ention the am en d m en ts that were n o t ratified. Id. N ew spaper accounts indicate that the first tw o am endm ents were postponed for fu rth er consideration, but there is no in d ica­ tion o f w hether they w ere form ally rejected. Schw artz, at 1176. Massachusetts, Connecticut, and Georgia did not notify the federal govern­ ment of any action on the proposed amendments.4 Further action to impose a constitutional limitation on congressional pay did not come until 1816. During its first session, the Fourteenth Congress passed a law replacing its per diem pay, which had remained unchanged since the first Congress, with a salary of $1500 per year. Act of Mar. 19, 3The resolution was approved by New York's Council o f Revision on February 27, 1790. 1 F irst C o n g re ss, at 280. 4 M assachusetts presented a unique case. Its legislative records indicate that it considered the am end­ m ents, and agreed to ratify most. The Congressional Pay Amendment was “rejected” by the M assachu­ setts Senate, Schw artz, at 1174, and was “not accepted” by the M assachusetts House. Id. at 1175. H ow ever, M assachusetts did not notify the federal government of these actions. Id. at 1172. When Secretary o f S tate Thom as Jefferson sought such notification, he was told that the M assachusetts legis­ lature had never passed the official bill ratifying the amendments. Id. at 1175. Massachusetts ultimately ratified the Bill of Rights in 1939, as did Georgia and Connecticut. Bill o f Rights an d the States, at xxii. 108 1816, ch. 30, 3 Stat. 257. See also 29 Annals of Cong. 199-204 (1816). The Compensation Act was extraordinarily unpopular. See Henry Adams, History o f the United States of America During the Administrations of James Madi­ son 1274-76 (Library of America 1986). Immediately upon convening the second session of the Congress, a bill repealing the Act was introduced. See 30 Annals of Cong. 10 (1816). Beyond merely a repeal of the offensive statute, Senator James Barbour introduced a joint resolution proposing a con­ stitutional amendment identical to the Congressional Pay Amendment in all but punctuation: No law varying the compensation for services of the Senators and Representatives shall take effect until an election of Rep­ resentatives shall have intervened. Id. at 30. See also Herman V. Ames, The Proposed Amendments to the Constitution o f the United States During the First Century o f its History, H.R. Doc. No. 353, 54th Cong., 2d Sess., pt. 2, at 34 (1897) (“Ames”). Congress repealed the Compensation Act, see Act of Feb. 6, 1817, ch. 9, 3 Stat. 345, but did not act on the proposed amendment. Nevertheless, several states joined the call for such an amendment. On January 17, 1817, the General Assembly of Kentucky proposed a constitu­ tional amendment nearly identical to the Congressional Pay Amendment: That no law varying the compensation of the members of the congress of the United States, shall take effect until the time for which the members of the house of representatives of that congress by which the law was passed, shall have expired. 1816-17 Ky. Laws 279. See also Ames, at 333. The legislatures of Massa­ chusetts and Tennessee passed resolutions proposing similar amendments. Ames, at 34-35, 333. Tennessee’s resolution, identical to that of Kentucky except for punctuation and capitalization, was received by the Senate and printed in the Annals o f Congress although only by a narrow vote after “considerable debate.” 31 Annals of Cong. 170 (1818). Congress took no action on any of these proposals. The legislature of Illinois, however, passed a resolution criticizing Kentucky’s proposed amendment as “unnecessary and inexpedient” and directing Illinois’s representatives in Congress to op­ pose the proposal. 1821 111. Laws 187. Illinois’s resolution was transmitted to Congress. 38 Annals of Cong. 35 (1821). Vermont, Ohio and New Hamp­ shire also passed resolutions opposing Kentucky’s proposal. 1817 Vt. Laws 100-01; 1818 Ohio Laws 202-03; 1818 N.H. Laws 165. See also Ames, at 333. It does not appear that any of those States took action at that time to ratify or reject the Congressional Pay Amendment proposed by the first 109 Congress, nor is there any indication whether anyone at the time considered that amendment to be pending before the States.5 In 1822, three new amendments related to congressional salaries were proposed, though Congress did not act on any of them. Ames, at 35. One was essentially the same as the Congressional Pay Amendment, except that it did not apply to Senators: That no increase or diminution of the compensation to Repre­ sentatives, for their services as such, shall be made by Congress, to have effect or operation during the period for which the members of the House o f Representatives, acting upon the sub­ ject, shall have been elected. 39 Annals of Cong. 1752 (1822). Another fixed the compensation of mem­ bers of Congress at the amount paid to members of the first Congress. See id. at 1768. The third provided that compensation for members of Congress, as well as the President and Vice President, would be fixed every ten years, after the census, and that alterations would take effect only after the particular official’s current term had expired. Id. at 1777-78. Again, there is no indication whether those members proposing the amendments believed that the amend­ ment proposed by the first Congress was still pending. The brief remarks in the Annals o f Congress do not address the issue. See id. at 1753, 1768. The only state to take formal action on the Congressional Pay Amend­ ment in the 19th century was Ohio. Its General Assembly ratified the proposed amendment on May 6, 1873. As expressed in the ratifying resolution, the legal theory was straightforward: under Article V, proposed amendments be­ come valid when ratified by three-fourths of the States, and the Congressional Pay Amendment “not having received the assent of the Legislatures of threefourths of the several States is still pending for ratification.” 1873 Ohio Laws 409 (joint resolution ratifying the second article of the twelve amend­ ments to the Constitution submitted by the first Congress).6 It is unclear what became of Ohio’s ratification. Although the resolution called upon the governor to transmit the ratification to the President and Congress, more than one hundred years later, in 1985, the National Archives and Records Service reported that Ohio, as well as several other States, had not sent official notice of ratification to the federal government. Robert S. Miller and Donald O. Dewey, The Congressional Salary Amendment: 200 Years Later, 10 Glendale 5 Vermont had already ratified the Congressional Pay Amendment and New Hampshire had previously rejected it. S e e su p ra , pp. 107-08. ‘ O hio’s action received considerable attention early in this century, when several proposals were made to am end the C onstitution to impose a tim e limit on ratification for all amendments. M embers of C ongress supporting the proposal pointed to Ohio's ratification of the Congressional Pay Amendment as a prim e exam ple o f the consequences o f having no time limits on amendments. S e e e.g., 55 Cong. Rec. 5556-57 (1917); 58 Cong. Rec. 5697, 5699 (1919). 110 L. Rev. 92, 102 (1991).7 Those States have since transmitted official notices. See id.\ 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certifica­ tion of the 27th Amendment, listing the forty states that had ratified the amendment and transmitting notification to the Archivist before May 18, 1992); 138 Cong. Rec. S6835 (daily ed. May 19, 1992). The controversial pay increase that provoked Ohio’s ratification led to activity in Congress as well. Just as in the early 1800’s, several new amend­ ments, similar to that proposed by the first Congress, were introduced. Ames at 35. Congress took no action on them, however, instead repealing the pay increase. Id. The next action on the Congressional Pay Amendment did not come until March 3,' 1978, when the Wyoming legislature ratified it. See 124 Cong. Rec. 7910 (1978).8 Five years later, on April 27, 1983, Maine ratified the amendment, 130 Cong. Rec. 25,007-08 (1984), bringing the total number of ratifications to nine. Since then, thirty-two additonal States have ratified the amendment, most recently Missouri and Alabama on May 5, 1992, Michigan and New Jersey on May 7, 1992, Illinois on May 12, 1992, and California on June 26, 1992. See 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certification); 138 Cong. Rec. E2237 (daily ed. July 24, 1992) (California). Thus, forty-one States have now ratified the amendment, three more than three-fourths of the fifty States. Some States that have ratified recently have elaborated the legal basis for their actions in their ratifying resolutions. Fourteen States mentioned the Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939), in their ratifying resolutions. Many used language to this effect: Whereas, the legislature of the state of New Mexico acknowl­ edges that the article of amendment to the constitution of the United States proposed by resolution of the First Congress on September 25, 1789, may still be ratified by states’ legislatures as a result of the ruling by the United States supreme court in the landmark case of Coleman v. Miller, 307 U.S. 433 ( 1 9 3 9 ).... 132 Cong. Rec. 3956 (1986) (New Mexico). Accord 134 Cong. Rec. 14,023 (1988) (Arkansas); 133 Cong. Rec. 11,618-19 (1987) (Montana); 135 Cong. Rec. 15,623 (1989) (Nevada); 135 Cong. Rec. 20,519-520 (1989) (Oregon); 135 Cong. Rec. 11,900-01 (1989) (Texas); 136 Cong. Rec. S9170 (daily ed. June 28, 1990) (Kansas); 137 Cong. Rec. S I0,949 (daily ed. July 25, 1991) (North Dakota); 138 Cong. Rec. S6845 (daily ed. May 19, 1992) (Alabama).9 Other States referred to Coleman without expressly tying it to their power 7 It should be noted that notice o f ratification by at least some of those States had been previously received by Congress and published in the Congressional Record. See 124 Cong Rec. 7910 (1978) (Wyoming); 130 Cong. Rec. 25,007-08 (1984) (Maine). 'T h e Governor of Wyoming signed the ratification on March 6, 1978. Miller and Dewey, 10 Glendale L. Rev., supra, at 100. ’ For ease of reference, we have cited to the resolutions as reprinted in the Congressional Record, Continued 111 to ratify the Congressional Pay Amendment, and also noted the lack of any time limit either generally in Article V or specifically in the Congressional Pay Amendment as proposed to the States. For example, Colorado, which on April 22, 1984, became the tenth State to ratify the amendment, states: Whereas, Article V of the United States Constitution does not state a time limit on ratification of an amendment submitted by Congress, and the First Congress specifically did not provide a time limit for ratification of the proposed amendment; and W hereas, The United States Supreme Court has ruled in Coleman v. Miller, 307 U.S. 433 (1939), that an Amendment to the United States Constitution may be ratified by states at any time, and Congress must then finally decide whether a reasonable time had elapsed since its submission when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment, . . . . 138 Cong. Rec. S6837 (daily ed. May 19, 1992) (Colorado). Accord 135 Cong. Rec. 5821 (1989) (Iowa); 135 Cong. Rec. 14,147 (1989) (Minnesota); 138 Cong. Rec. S 14,974 (daily ed. Sept. 24, 1992) (Missouri); 138 Cong. Rec. S8387 (daily ed. June 17, 1992) (Illinois). Other States have not cited Coleman, and instead have emphasized, as Ohio did, the absence of a time limit in the Congressional Pay Amendment proposal. For example, Wyoming, the first State to ratify the amendment in this century, stated in its ratifying resolution: Whereas the Congress of the United States, upon proposing that amendment, did not place any time limitation on its final adoption . . . . 1978 Wyo. Sess. Laws. 427. Accord 134 Cong. Rec. 9525 (1988) (Georgia); 134 Cong. Rec. 8752 (1988) (West Virginia); 135 Cong. Rec. 14,816 (1989) (Alaska); 136 Cong. Rec. S10.091 (daily ed. July 19, 1990) (Florida). See also 133 Cong. Rec. 24,779 (1987) (Wisconsin) (noting additionally that “the congress of the United States has the power to impose reasonable time ’ (....continued) although such publication has no independent legal consequence. The States generally transmit certified copies o f the resolutions directly to the Archivist of the United States. The resolutions, except for C alifo rn ia’s, are also reprinted together in the Congressional Record. See 138 Cong. Rec. S6831-46 (daily ed. M ay 19, 1992). A tabulation by the Archivist o f the dates o f ratification can be found in the Congressional Record. Id. at S6831. 112 limits for the ratification of proposed amendments”). Wisconsin’s ratification is noteworthy also because it is the only one that provides a rationale for the authority to ratify an amendment that was proposed before the State entered the Union: Whereas, the congressional pay changes amendment was val­ idly ratified by the state of Vermont on November 3, 1791, even though Vermont had not been one of the original 13 states to which the proposed amendment had been submitted, and had not yet achieved statehood when the amendment was submitted . . . . Id. Finally, many States mention neither Coleman nor time limits, nor allude to the fact that the amendment is approximately 200 years old. See 130 Cong. Rec. 25,007-08 (1984) (Maine); 1985 S.D. Laws 27 (South Dakota); 131 Cong. Rec. 6689 (1985) (New Hampshire); 131 Cong. Rec. 9443 (1985) (Arizona); 131 Cong. Rec. 27,963 (1985) (Tennessee); 131 Cong. Rec. 27,96364 (1985) (Oklahoma); 132 Cong. Rec. 8284 (1986) (Indiana); 132 Cong. Rec. 12,480 (1986) (Utah); 133 Cong. Rec. 23,571 (1987) (Connecticut); 134 Cong. Rec. 18,760 (1988) (Louisiana); 135 Cong. Rec. 14,572-73 (1989) (Idaho); 138 Cong. Rec. S7026 (daily ed. May 20, 1992) (Michigan); 138 Cong. Rec. S6846 (daily ed. May 19, 1992) (New Jersey); 138 Cong. Rec. E2237 (daily ed. July 24, 1992) (California). The Idaho legislature’s resolu­ tion was based, pursuant to state law, on a state referendum on the amendment. 135 Cong. Rec. 14,572-73 (1989). The Archives has indicated that it has received no rescissions of previous ratifications of the Congressional Pay Amendment, nor have we found any public record of rescissions.10 10 Several of the States that have ratified the amendment, however, had previously rejected it. To the extent reflected in documents transmitted to the federal government. New Hampshire had expressly rejected the amendment, while New Jersey had simply failed to ratify it when ratifying the other pro ­ posed amendments. In 1817, Vermont, which had ratified the amendment in 1791, passed a resolution opposing a similar amendment proposed by Kentucky, but the resolution specifically refers to the K en­ tucky, proposal and does not purport to rescind Vermont's earlier ratification of the Congressional Pay Amendment. See supra, p. 109. Oklahoma's ratification purports to have an expiration date — D ecem ­ ber 31, 1995 — pursuant to state law. 131 Cong. Rec. 27,964 (1985). 113

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Congressional Pay Amendment T h e C o n g ressio n al Pay A m endm ent, w hich w as originally proposed by C ongress to the States for ratification in 1789, and having been ratified by three-fourths o f the S tates, h as b een ratified p u rsu an t to A rticle V and is accordingly now part o f the C onstitution. U n d er 1 U .S .C . § 106b, the A rchivist was, upon receipt o f form al instrum ents o f ratification from the req u isite num ber o f States, required to publish the C ongressional Pay A m endm ent along w ith his certificate specifying that the A m endm ent has becom e valid, to all in ten ts and purposes, a s part o f the C onstitution. May 13, 1992 M em orandum O p in io n f o r t h e C o u n sel to the P r e s id e n t You have asked for a summary of our views, on an expedited basis, on whether the Congressional Pay Amendment has been duly adopted in accor­ dance with the formal requirements of Article V of the Constitution. The General Counsel of the National Archives and Records Administration has informed us that the Archivist of the United States has received word that a total of thirty-nine States have adopted the Amendment, one more than the three-fourths required under Article V. The Archivist expects to have re­ ceived formal instruments of ratification from all the necessary States shortly and informs us that no state has purported to rescind its ratification. Article V of the Constitution provides: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . . which . . . shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . . . Congress proposed the Pay Amendment to the States in 1789, by a resolu­ tion concurred in by two-thirds of both Houses. 1 Stat. 97 (1789). That resolution further provided that the Amendment would be valid as part of 85 the Constitution “when ratified by three fourths of the [State] legislatures.” Id. As the Amendment was proposed by the requisite majorities of both Houses of Congress, and has been ratified by the legislatures of three-fourths of the States, it has met all of the requirements for adoption set forth in Article V. Section 106b of title 1, United States Code, provides: Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, ac­ cording to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has be­ come valid, to all intents and purposes, as a part of the Constitution of the United States. Accordingly, upon the receipt of formal instruments of ratification of the Pay Amendment from three-fourths of the States, the Archivist must forth­ with cause the Amendment to be published with his certificate specifying the States by which it has been adopted, and that the Amendment has be­ come valid, to all intents and purposes, as a part of the Constitution of the United States. The effective date of the Amendment is the date on which it was ratified by the thirty-eighth State to do so. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office o f Legal Counsel 86 November 2, 1992 M em o ran d u m O p in io n f o r t h e C o u n sel to th e P r e s id e n t You have asked us to memorialize the detailed analysis underlying the advice rendered to you earlier this year in connection with the ratification of the Congressional Pay Amendment, originally proposed by Congress to the States for ratification in 1789. You also asked us to address the question whether the Archivist of the United States, upon receipt of formal instru­ ments of ratification from the requisite number of states, was required to certify that the Congressional Pay Amendment has become part of the Con­ stitution.1 For the reasons set forth below, we conclude that the Congressional Pay Amendment has been ratified pursuant to Article V and is accordingly now part of the Constitution, and that the Archivist was required to issue his certification to that effect in accordance with 1 U.S.C. § 106b. I. A. The procedures for amending the Constitution are set forth in Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amend­ ments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Con­ ventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. ' We have relied upon the Archivist of the United States for his official tally of the ratifying States. In addition to the forty states listed in the Archivist’s certification, see 57 Fed. Reg. 21,187, 21,188 (1992), we understand that California ratified the amendment on June 26, 1992, see 138 Cong. Rec. E2237 (daily ed. July 24, 1992). We set forth in detail the history of the Congressional Pay Am endm ent’s ratification by the States in the accompanying Appendix. 87 The Constitution of the United States: Analysis and Interpretation, S. Doc. No. 16, 99th Cong., 1st Sess. 18 (Johnny H. Killion ed., 1987) (“Constitution Annotated'). Thus, Congress or a convention proposes an amendment, Con­ gress proposes a mode of ratification, and the amendment becomes part of the Constitution when ratified by three fourths of the States. The ratification of the Congressional Pay Amendment followed this process. Congress pro­ posed the amendment and directed it to state legislatures for ratification. Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789) (Amendments to the U.S. Consti­ tution). Three fourths of the several States have now ratified it. 57 Fed. Reg. 21,187, 21,188 (1992); see also Appendix.2 By a straightforward reading of Article V, the amendment is now “valid to all Intents and Purposes, as Part of th[e] Constitution.” That the ratification of the Congressional Pay Amendment has stretched across more than 200 years is not relevant under the straightforward lan­ guage of Article V. Article V contains no time limits for ratification. It provides simply that amendments “shall be valid to all Intents and Purposes . . . when ratified.” Thus the plain language of Article V contains no time limit on the ratification process. Nor are we aware of any other basis in law for adding such time limits to the Constitutional amendment process, other than pursuant to the process itself. Indeed, an examination of the text and structure of Article V suggests that the absence of a time limit is not an accident. The procedure prescribed in Article V necessarily implies that some period of time must pass between the proposal of an amendment and its final ratification by the requisite num­ ber of States.3 This suggests that if a time limit on the process were intended, the time limit would be stated in terms. Moreover, Article V does deal with a question concerning time limits, and does so quite precisely: no amend­ ment affecting “the first and fourth Clauses in the Ninth Section of the first Article” was permitted to be made “prior to the Year One thousand eight hundred and eight.” If the Framers had contemplated some terminus of the period for ratification of amendments generally, they would have so stated. The rest of the Constitution strengthens the presumption that when time periods are part of a constitutional rule, they are specified. For example, representatives are elected every second year, U.S. Const, art. I, § 2, and a census must be taken within every ten year period following the first census, 2The A rchivist also informs us that no State has transmitted to the federal government a document p urp o rtin g to rescind a prior ratification. In the early 1800's, the Vermont legislature, which had previously ratified the amendment, passed a resolution opposing a later, nearly identical proposal by the K entucky legislature. S e e 1817 Vt. Law s 100-01. There is no evidence, however, that Vermont at­ tem pted to rescind its previous ratification. Several states did expressly reject the Congressional Pay Am endm ent when it was first proposed, though only New Hampshire appears to have formally notified the federal governm ent o f that fact. S e e 1 D ocum entary H isto ry o f the F irst F ed era l C ongress o f the U n ite d S ta te s o f A m e r ic a 348 (Linda G rand DePauw, et. al., eds. 1972) (“ 1 F irst C o n g ress")’. Appendix at pp. A-3 to A-4. 3 S ee Joseph Story, C om m entaries on th e C onstitution o f the U nited Stales § 959, at 681 (1833) (re­ printed 1987) (formal requirements of A rticle V indicate that “[t]ime is thus allowed, and ample time, for deliberation, both in proposing and ratifying amendments”) ( “C om m entaries"). 88 which was required to be taken within three years of the first meeting of Congress. Id. Neither House of Congress may adjourn for more than three days without the consent of the other, U.S. Const, art. I, § 5, and the Presi­ dent has ten days (Sundays excepted) within which to sign or veto a bill that has been presented to him. U.S. Const, art. I, § 7. The Twentieth Amend­ ment refers to certain specific dates, January 3rd and 20th. Again, if the Framers had intended there to be a time limit for the ratification process, we would expect that they would have so provided in Article V.4 The records of the drafting and ratification of the Constitution contain no hint that Article V was intended to contain any implicit time limit. See, e.g., Dillon v. Gloss, 256 U.S. 368, 371 (1921). The issue appears not to have arisen at the time of the framing, but has since been debated in Congress from time to time. Throughout most of those debates, the dominant view has been that the Constitution permits the ratification process to proceed for an unlimited period of time. The first discussion we have found of the question whether a proposed constitutional amendment remains viable in­ definitely came in 1869, when Senator Buckalew introduced a measure to regulate the time and manner in which state legislatures would consider the Fifteenth Amendment. In support of his proposal, he stated that because of the confusion created by States that either ratify after rejecting, or reject after ratifying, “we are in this condition that you cannot have a constitu­ tional amendment rejected finally at all in the United States; rejections amount to nothing, because ratifications at some future time, ten, twenty, fifty, or one hundred years hence, may give it validity.” Cong. Globe, 40th Cong., 3d Sess. 913 (1869). Senator Bayard, opposing a related proposal, stated his belief that “as long as the proposed amendment has neither been adopted by three fourths of the States nor rejected by more than one fourth, it stands open for . . . action.” Id. at 1312. The Senate and House debates regarding proposal of the Eighteenth Amendment in 1917 also indicate a common belief that Article V contains no time limits. For example, in his remarks on the need for limiting time for state ratification, Senator Ashurst explained that two of the first twelve amendments proposed by Congress “are still pending . . . and have been for 128 years.” 55 Cong. Rec. 5556 (1917). Senator Borah expressed the view that “[t]he fundamental law of the land does say very plainly, that it places no limitation upon the time when or within which [an amendment] must be ratified. It says ‘when ratified’, and fixes no limit.” Id. at 5649. Senator 4 The Constitution also contains provisions that refer to time but not to a specific period or date. The Twelfth Amendment provides that when the House of Representatives must choose the President, it is to ballot “im m ediately” (presumably to prevent intrigue and cabal); the Vice President shall “im m edi­ ately” assume the office o f President under certain circumstances, U.S. Const, amend. XXV, § 4; the first Senate was “immediately” to divide itself into three classes for purposes of determining when terms o f office expired, U.S. Const, art. I, § 3, cl. 2; the Sixth Amendment requires that accused persons receive a "speedy” trial. The Constitution also requires that certain duties be performed “ from tim e to tim e.” S e e U.S. Const, art. I, § 5, cl. 3 (publication of journal o f Congress); art. I, § 9, cl. 7 (publication of statement of accounts); art. II, § 3 (President’s state of the union message). The comm on theme o f all these provisions is that when time is part of a constitutional rule, the document so provides. 89 Cummins offered a separate amendment to Article V, stating that “I am in favor of supplying what is manifestly a defect in our Constitution and pro­ viding some limit of time . . . ” Id. at 5652. Senator Overman later stated that “as the Constitution is now, . . . an amendment . . . can be submitted for a thousand years and be in force whenever ratified.” 56 Cong. Rec. 10,098 (1918). In the House, Representative Reavis objected to any time limit in the Constitution. “The amendment is submitted until enough legislatures have passed upon it to indicate whether or not it will be approved by threefourths of them.” 56 Cong. Rec. 444 (1917). Representative Steel replied that without a time limit, “when a proposed constitutional amendment goes out to the States it rests there for agitation for all time without any limita­ tion whatever.” Id. at 445. Thus, although there was much disagreement on the issue — later ad­ dressed in Dillon v. Gloss — whether Congress could impose time limits for state ratification of a proposed constitutional amendment in the absence of a separate amendment to Article V, there was little doubt as to the rule estab­ lished by the Constitution itself: the proposed amendment remained viable, at least until rejected by more than one-fourth of the States.5 Thus, the text and history o f Article V make plain that any argument that there is a time limit on the ratification process must be based on some ground other than text and history. B. 1. Two decisions of the Supreme Court, Dillon, and Coleman v. Miller, 307 U.S. 433 (1939), have been cited for the propositioft that Article V requires that the ratification of constitutional amendments takes place within a “rea­ sonable” time after proposal.6 That doctrine is not within the holding of those cases, however, and we believe that any dicta supporting the doctrine are unsound. In upholding Congress’s power to limit to seven years the time for ratifi­ cation of the Eighteenth Amendment, the Supreme Court in Dillon stated “that the fair inference or implication from Article V is that the ratification [of an amendment] must be within some reasonable time after the proposal.” 256 U.S. at 375. If this reasoning is controlling and Article V does contain 3 It is especially telling that so many of those who thought that the Constitution imposed no tim e limit on the am endm ent process thought this feature to be a defect in the document; had they thought the question a close one, or if any textual argum ent had been available, they might have resolved it in favor o f what they took to be the preferable outcom e. 6 See, e .g .. E q u a l R ig h ts A m endm ent E x te n sio n : H earings on S. J. Res. 134 Before the S ubcom m . on the C o n stitu tio n o f the S e n a te C om m , on the J u d ic ia ry , 95th Cong., 2d Sess. 117 (1978) (“Senate Hearings”) (testimony of Prof. Thomas I. Emerson, Yale University); id. at 144 (testimony of Prof. Jules B. Gerald, Washington University); id. at 266 (statement of Prof. Ruth B. Ginsburg, Columbia University). 90 an implicit requirement that proposal and ratification be reasonably contempora­ neous, the Congressional Pay Amendment almost certainly would be invalid.7 Although recognizing that Article V “says nothing about the time within which ratification may be had,” id. at 371, the Court in Dillon identified three grounds for concluding that Article V “strongly suggests” that a pro­ posed amendment may not remain “open to ratification for all time” and that ratification in some States may not be “separated frorri that in others by many years and yet be effective.” Id. at 374. The Court stated: First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a neces­ sity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be consid­ ered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scat­ tered through a long series of years would not do. Id. at 374-75 (emphases added).8 7 Indeed, the Court in D illon suggested that the period for ratification of the Congressional Pay Amend­ ment, along with that of three other long-dormant proposed amendments, had lapsed: That [construing Article V to require contemporaneous ratification] is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago — two in 1789, one in 1810 and one in 1861 — are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in o u r o p in io n it is q u ite untenable. Id. (emphasis added). S ee a lso Memorandum from David C. Huckabee, Analyst, and Thomas M. Durbin, Legislative Attorney, Congressional Research Service, Library of Congress, R e: The P ro p o sed C o n g res­ sio n a l P ay C o n stitu tio n a l A m en d m en t: Issues P ertaining to R a tifica tion, at 2-3 (Aug. 12, 1991) (“CRS Memorandum” ). s In support of the notion of contemporaneous consensus, the Court quoted with approval a passage from John A. Jameson, A Treatise on C onstitu tio n a l C onventions (Da Capo Press 1972) (4th ed. 1887), in which Jameson wrote: The better opinion would seem to be that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs o f to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress. Id. § 585, at 634, q u o te d in p a rt in 256 U.S. at 375. Contrary to the conclusion in D illo n , however, Jameson in his treatise had not suggested that his "opinion” on the need for contem poraneous ratification was based on any requirem ent detectable in the text o f Article V. Rather, he believed that securing this policy goal would require the adoption o f a “constitutional statute of lim itation" for proposed amendments. Jameson specifically referred to the Continued 91 In Coleman v. Miller, the Court was presented with a claim by members of the Kansas Legislature that the Child Labor Amendment, proposed by Congress thirteen years before, “had lost its vitality through lapse of time.” 307 U.S. at 451. The Court refused to consider the claim. Id. at 452-56 (opinion of Hughes, C.J., joined by Stone and Reed, JJ.); id. at 456-60 (Black, 1., joined by Roberts, Frankfurter and Douglas, JJ., concurring). In his “opinion for the Court” in Coleman, Chief Justice Hughes observed that although the three considerations outlined in Dillon represented “cogent rea­ sons” for concluding in the earlier case that Congress had the power to fix a reasonable time limit for ratification, Dillon's discussion of these consider­ ations was merely a dictum. Id. at 452-53. Nevertheless, in determining that the issue was “political,” Chief Justice Hughes in dicta adhered to the premise of Dillon that Article V may be read as implicitly limiting the time for ratification. See id. at 453-54. See also CRS Memorandum at 3; Staff of House Comm, on the Judiciary, 85th Cong., 1st Sess.,' Problems Relating to a Federal Constitutional Convention 44-45 (Comm. Print 1957) (by Cyril F. Brickfield).9 2. Dillon is not authoritative on the issue whether Article V requires con­ temporaneous ratification. As Chief Justice Hughes pointed out in Coleman, 307 U.S. at 452-53, the “reasonable time” discussion in Dillon was dictum because the issue before the Court was Congress’s authority to limit the period for ratification, not a State’s authority to ratify a long-dormant pro­ posed amendment. See 1 Westel W. Willoughby, The Constitutional Law of the United States 596 n.18 (2d ed. 1929) (“Willoughby”) (“[T]he declaration of the court [in Dillon] as to the lapsing of proposed amendments which do ' ( ....continued) various proposed am endm ents “floating about" in 1887, including the Congressional Pay Amendment, w hich had shortly before been ratified by Ohio, and he acknowledged that “there is in force in regard to them no recognized statute o f limitation.” Jameson, su p ra , § 586, at 635-36. A fter discussing the hypothetical “confusion or conflict" that would result from such open-ended proposals, Jameson con­ cluded w ith a plea for amending the amendm ent process: We discuss this question here m erely to emphasize the dangers involved in the Constitution a s it sta n d s, and to show the necessity of legislation to make certain those points upon which doubts may arise in the employment of the constitutional process for amending the funda­ m ental law o f the nation. A constitutional statute o f limitation, prescribing the time within which proposed amendments shall be adopted or be treated as waived, o u g h t by a ll m ea n s to b e p a sse d . Id. at 635-36 (em phases added). See a lso Herman V. Ames, The P roposed A m en d m en ts to the C on stitu ­ tio n o f th e U n ited S ta te s D u rin g the F irst C en tu ry o f Its H isto ry, H.R. Doc. No. 3 5 3 ,54th Cong., 2d Sess., pt. 2, at 291-92 & n .l (1897). ’ C hief Justice Hughes wrote that “the question of a reasonable time in many cases would involve . . . an appraisal o f a great variety o f relevant conditions, political, social and economic.” 307 U.S. at 453. The four concurring Justices would have dism issed the case for lack of standing, see id. at 460-70 (opinion of Frankfurter, J.), but concurred in the C hief Justice’s conclusion on the broader ground that “Congress has sole and com plete control over the amending process, subject to no judicial review.” Id. at 459 (Black, J., concurring). Justices Butler and McReynolds in dissent found the issue justiciable and concluded that under D illo n “more than a reasonable tim e had elapsed” for ratification of the Child Labor Amendment. Id. at 473 (Butler. J. dissenting). We discuss C olem an’s political question holding in Part II, infra. 92 not receive ratification by the States within a reasonable period of time was obiter, inasmuch as this question was not before the court in the instant case.”); see also Brief for the United States Amicus Curiae at 25, Coleman v. Miller, 307 U.S. 433 (1939) (No. 38-7) (“It was unnecessary in [Dillon] to consider whether a proposed amendment would expire with the passage of time in the absence of [a limitation] provision . . . ,”).10 Nor is Coleman authoritative as to contemporaneity. The Coleman Court’s discussion of Dillon's “reasonable time” inference was simply not part of its holding. Although Chief Justice Hughes’s opinion for three members of the Court did approve of the “cogent reasons” for requiring contemporaneity outlined in Dillon, see 307 U.S. at 452-53, the four remaining Justices com­ prising the seven-vote majority on the dispositive “political question” issue specifically repudiated Dillon. The four concurring Justices called for “dis­ approval of the conclusion arrived at in Dillon v. Gloss, that the Constitution impliedly require[d] that a properly submitted amendment must die unless ratified within a ‘reasonable time.’” Id. at 458 (Black, J., concurring) (foot­ note omitted).11 Moreover, Chief Justice Hughes’s conclusion does not logically imply that Dillon was correct. Having declined to address the content of an implicit time limit, it leaves open for Congress the conclusion that there is no time limit at all. 3. On its merits, the reasoning of Dillon is unpersuasive in both its spe­ cific arguments and in its broader methodology. The Dillon Court’s first 10 Indeed, some have argued that the entire opinion o f the Court in D illon was a dictum and must be considered “dubious” authority at best. S ee Note, The Process o f C o n stitutional A m e n d m e n t, 79 Colum. L. Rev. 106, 126 n.75 (1979); Ernst Freund, L eg isla tive P roblem s a n d S o lutions, 7 A.B.A. J. 656, 65657 (1921). The challenge to the Eighteenth Amendment in D illo n was baseless because the seven-year limitation at issue was part of the text of the amendment and was therefore itself ratified by the States; the petitioner did not claim that Congress lacked authority to include such a limitation in the am end­ ment itself. Note, 79 Colum. L. Rev. at 126 n.75. S ee Brief for Appellee at 5, D illon v. G lo ss, 256 U.S. 368 (1921) (No. 20-251) (“The amendment having been ratified by the requisite num ber of States within the time limitation provided in section three, it is unimportant whether that section is valid or invalid.”). “ [T]he Suprem e Court, apparently mistaking the actual facts o f the case submitted to it, stated and decided the case as though the time limit for ratification had been contained . . . in the Joint Resolution o f Congress . . . . ” Willoughby, at 596-97. "W e do not believe that Chief Justice Hughes's opinion must be treated as a holding o f the Court because it rested on a “narrower ground” than Justice Black’s. Ordinarily, where an opinion for the Court is fragmented, as in C olem an, the opinion of the Justices concurring in the judgm ent on the narrowest grounds is regarded as the Court's holding. S ee M a rks v. U nited S ta tes, 430 U.S. 188, 193 (1977); G regg v. G eorgia, 428 U.S. 153, 169 n. 15 (1976) (opinion o f Stewart, Powell and Stevens, JJ.); K ing v. P alm er, 950 F.2d 771, 778 (D.C. Cir. 1991) (Silberman, J., concurring), cert, d e n ie d , 550 U.S. 1229 (1992). However, “the narrowest opinion must represent a common denominator o f the C ourt’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgm ent.” K ing, 950 F.2d at 781. The “reasonable time” rule thus cannot be considered a holding o f C olem an because it was specifically rejected by four/concurring Justices. C olem an “is not a case in which the concurrence [here the three-justice H ughesfaction] posits a narrow test to which the plurality must necessarily agree as a logical consequence of^its own, broader position.” Id. at 782. “In other words, it is not a case in which there is an implicit majority o f the court" on the issue whether Article V requires reasonably contemporaneous ratification. Id. 93 consideration was that proposal and ratification are steps in a single process and hence should not be widely separate in time. This argument simply assumes its conclusion — that the process is to be short rather than lengthy. Second, Dillon argued that because amendments are to be proposed only when needed, the implication is that they should be dealt with promptly. But necessity is not the same as emergency. Thus, Story has written: The guards [in Article V] against the too hasty exercise of the [amendment] power, under temporary discontents or excite­ ments, are apparently sufficient. Two thirds of congress, or of the legislatures of the states, must concur in proposing, or requiring amendments to be proposed; and three fourths of the states must ratify them. Time is thus allowed, and ample time, for deliberation, both in proposing and ratifying amend­ ments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judg­ ment may be passed upon them, unless some pressing emergency calls for instant action. . . . . . . The mode, both of originating and ratifying amendments . . . must necessarily be attended with such obstacles and de­ lays, as must prove a sufficient bar against light or frequent innovations. Commentaries, §§ 959-960, at 681-82. The States that have ratified the Congressional Pay Amendment only recently evidently consider it to be just as necessary today as the first Congress presumably thought it was in 1789. Finally, Dillon suggests that Article V is designed to seek consensus, and that consensus must be contemporaneous. Again, even assuming that it is proper to interpolate terms into a constitutional provision in order to serve its purported end — a question we address below — this reasoning is faulty. Consensus does not demand contemporaneity. The sort of lasting consensus that is particularly suitable for constitutional amendments may just as well be served by a process that allows for extended deliberation in the various states. There have been occasions when it has taken decades to build the consensus within Congress needed for a two-thirds vote on a proposed amend­ ment.12 In the absence of a time limit in the original amendment proposal, it 11 S ee, e .g .. Senate Hearings, at 134-35 (statement o f Professor Thomas I. Emerson) (“History has dem ­ onstrated that a long period of time is necessary for the nation to make up its mind with respect to fundam ental changes . . . . Thus the W om en’s Suffrage Amendment was under consideration for nearly three quarters o f a century.” ). 94 would appear to be equally true that it may legitimately take many decades to build the three-fourths consensus required for the states’ approbation.13 More fundamentally, Dillon rests on a faulty approach to the interpreta­ tion of the Constitution, and in particular those provisions that determine the structure of government. The amendment procedure, in order to function effectively, must provide a clear rule that is capable of mechanical applica­ tion, without any need to inquire into the timeliness or substantive validity of the consensus achieved by means of the ratification process. Accord­ ingly, any interpretation that would introduce confusion must be disfavored. As the Supreme Court has explained, the Constitution is designed to provide “[e]xplicit and unambiguous provisions” to govern the structure of govern­ ment. INS v. Chadha, 462 U.S. 919, 945 (1983) (construing the presentment and bicameralism provisions of Article I). The very functioning of the govern­ ment would be clouded if Article V, which governs the fundamental process of constitutional change, consisted of “open-ended” principles without fixed appli­ cations. The alternative to procedural formalism is uncertainty and litigation.14 As explained above, the terms of Article V provide a clear rule: any amendment once proposed “shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.” The reading according to which Article V contains an im­ plicit time limit, by contrast, introduces so much uncertainty as to make the ratification process unworkable. The two stages of the amendment process are proposal and ratification. The latter is done by states acting through legislatures or conventions. In order to be able to carry out its function in the ratification process, any state that is contemplating ratification must know whether an amendment is in fact pending before it. That is not a matter of degree; the proposed amendment is either pending or not. 11 It is conceivable that the goal of consensus, if there is one. could be defeated where the last State to ratify harbors an entirely different intent or purpose in approving the amendment than did the first ratifying States o r the proposing Congress. Thus, for example, the meaning o f the words o f an am end­ ment chosen by the proposing Congress could conceivably change dramatically with the passage o f time. If there is a substantive consensus requirement beyond the procedural formalities o f Article V, this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opin­ ion on any hypothetical scenario that may present a more fundamental challenge to the notion of con­ sensus. We conclude only that consensus itself does not necessarily require contemporaneity. M ore­ over, of course, if the absence of a time limit introduces a danger into the Article V amendment process, the solution is to specify a time limit, either in the text of the amendment or the proposing resolution. 14 See Walter Dellinger, The L eg itim a cy o f C onstitu tio n a l C hange: R ethinking the A m e n d m e n t P rocess, 97 Harv. L. Rev. 386,418 (1983) (“Dellinger”): “ Attention to th[e] formalities [specified in Article V] is more likely to provide clear answers than is a search for the result that best advances an imputed ‘policy’ of ‘contem poraneous consensus.’” Professor Dellinger nevertheless maintains that a proposed am end­ ment, like the Congressional Pay Amendment, that languishes for years without action by state legisla­ tures could be considered dead. Id. at 425. Dellinger's “doctrine o f desuetude," however, has itself been criticized as “an anomolous position" in light of his reliance on the formalities o f Article V. John R. Vile, J u d ic ia l R eview o f the A m en d in g Process: The D ellinger-Tribe D eb a te, 3 J.L. & Pol. 21, 33 (1986). S e e also Laurence H Tribe, A C onstitution We A re A m en d in g : In D efen se o f a R estra in ed J u d ic ia l R ole, 97 Harv. L. Rev. 433, 434 n.6 (1983). In our view, the notion of desuetude is fraught with all o f the short­ com ings that characterize the "reasonable time” rule of D illon and must be rejected for the sam e reasons. 95 According to the theory that Article V contains an implicit time limit, the State must deduce that it can ratify only if the time since proposal is still a reasonable one. The implicit reasonable time rule can take one of two forms. First, the Constitution might be said to impose the same time period with respect to all proposed amendments. Putting aside the implausibility of the suggestion that a legal rule includes a time certain without stating it, this reading would require each state somehow to decide for itself what limitation the Constitution implicitly imposes. This question is extremely difficult, and there is no reason to believe that the different States would answer it in the same way.15 In fact, the long history of congressional treatment of time limits demonstrates that there is no agreement as to what period of time would be reasonable.16 The other possible form of the implicit time limit rule is that the “reason­ able” time differs from amendment to amendment, depending on any number of unstated factors. This theory requires that the States undertake an inquiry even more difficult than the search for an implicit but specific time limit. To take an example, this approach may suggest that the merits of a proposal may affect the question whether it is still pending, because one approach to judging the reasonableness of the period of ratification is to ask if the prob­ lem the amendment was designed to address is still pressing — a question that is inseparable from the substance of the amendment. However the question of reasonableness is to be answered, it is plain that answering it can be extremely difficult, and that expecting all the States to answer it in the same way is unreasonable. The implicit time limit theory thus imposes an impossibly burdensome requirement on ratifying States — that they discern the implicit limitation and, if the system is to work smoothly, that they all discern the same one. Most discussions of the implicit time limit obscure this difficulty by shifting attention away from the situation of the States. For instance, Chief Justice Hughes’s opinion in Coleman indicates that the reasonableness of the period that has passed since proposal is for Congress to decide at the time of promulgation. See 307 U.S. at 454. Congress’s decision at the end of the 15 The com pelling need for regularity and certainty in the amendment procedure is exactly what prompted C ongress to include a tim e limit in the Eighteenth Amendment, which led the Court in D illo n to con­ sider the question”[w]hether a definite period for ratification shall be fixed so that all may know what it is a n d s p e c u la tio n o n w h a t is a reasonable tim e m a y be a vo id ed ." 256 U.S. at 376 (emphases added). “ W hat seem s to have been the first attem pt to impose a time limit on the States occurred during con­ gressional consideration o f the Fourteenth Amendment, when Senator Buckalew proposed an am end­ m ent to the join t resolution that would have required ratification within three y ears. Cong. Globe, 39th Cong., 1st Sess. 2771 (1866). In 1917, during debates on the Eighteenth Amendment, Senator Ashurst stated that he could support a time lim it o f “ 10, 12, 14, 16, 18, or even 20 years.” 55 Cong. Rec. 5557 (1917). Senator Harding proposed an amendm ent to the joint resolution that would have limited states' consideration to a period o f six years. Senator Cummins offered a substitute amendment that would have am ended Article V to require state ratification o f all amendments proposed after January 1, 1917, to e ig h t y e a r s , expressing the view th at what is a “reasonable” period for ratification might differ in each case. 55 Cong. Rec. 5652 (1917). During debate on the Child Labor Amendment in 1924, Repre­ sentative Linthicum and Senator Fletcher offered amendments that would have required ratification within fi v e y e a r s of proposal. 65 Cong. Rec. 7288, 10,141 (1924). 96 process, however, can be of no use to States while that process is going on. According to Chief Justice Hughes’s approach, the States must make deci­ sions concerning constitutional amendments without knowing whether those decisions matter until they leam from Congress at some later date, if ever.17 The implicit time limit thesis is thus deeply implausible, because it intro­ duces hopeless uncertainty into that part of the Constitution that must function with a maximum of formal clarity if it is to function. In sum, the dictum of Dillon and the view of Chief Justice Hughes’s plurality in Coleman are not authoritative nor are they persuasive. Article V contains no time limit not stated in its text. The Congressional Pay Amendment — rather, the Twenty-Seventh Amendment — although well aged, is not stale.18 II. You have also asked whether, under 1 U.S.C. § 106b, the Archivist was required to publish the Congressional Pay Amendment along with his cer­ tificate specifying that the Amendment has become valid, to all intents and purposes, as part of the Constitution. We believe that he was required to do so. A. Section 106b provides: Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, ac­ cording to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has be­ come valid,, to all intents and purposes, as a part of the Constitution of the United States. 17See Note, C ritical D etails: A m en d in g the U nited S ta tes C o n stitu tio n , 16 Harv. J. on Legis. 763, 767 (1979) (“Although C olem an did spell out some guidelines, the state legislatures would still only specu­ late about what amount o f time Congress would conclude was reasonable. Only some direct signal from Congress before or during ratification would definitely prescribe the time for action in the states.”). Se e a lso 2 David K. Watson, The C onstitution o f the U n ited States 1311-12 (1910) (“Who but the state can judge of what would be a reasonable time? It is for the state to ratify and cannot the state take its own time to do it?”), q u o ted in C ase N ote, 24 Minn. L. Rev. 393, 394 n.9 (1940). "S ev eral other amendments to the Constitution have been proposed to the States without time limits and have never received the approval of three-fourths of the States. See C onstitution A n n o ta ted , at 5153. A resolution was introduced in the Senate purporting to declare that those proposals have "ex­ pired,” but it was not passed. See S. Con. Res. 121, 102d Cong., 2d Sess. (1992); 138 Cong. Rec. S6839, S6908 (daily ed. May 19, 1992). B u t see 138 Cong Rec. S6949 (daily ed. May 2, 1992) (Sena­ tor Sanford asserting that “today the Senate also decided to declare that four other proposed and pend­ ing amendments . . . were to be considered to have lapsed”). This opinion does not address the current vitality of any o f those amendments. We note, however, that the status of the amendment proposed in 1861 providing that “[n]o amendment shall be made to the Constitution which will authorize or give Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State,” C onstitution A n n o ta te d at 52, may be determined by the subsequent adoption of the Thirteenth Amendment. 97 1 U.S.C. § 106b. The statutory directive is clear. First, the Archivist must determine whether, as a matter of law, he has received “official notice” of an amendment’s adoption “according to the provisions of the Constitution.” Id. If he determines that he has received such notice, he must publish the amend­ ment with a certificate specifying, inter alia, that the amendment “has become valid, to all intents and purposes, as a part of the Constitution.” Id. The statute allows the Archivist no discretion in this regard. Congress has required the executive branch to certify the validity of con­ stitutional amendments since 1818. In that year, Congress established a statutory mechanism for the publication of constitutional amendments as part of a general provision “for the publication of the laws”: [W]henever official notice shall have been received, at the Department of State, that any amendment which heretofore has been, or hereafter may be, proposed to the constitution of the United States, has been adopted, according to the provi­ sions of the constitution, it shall be the duty of the said Secretary of State forthwith to cause the said amendment to be published in the . . . newspapers authorized to promulgate the laws, with his certificate, specifying the states by which the same may have been adopted, and that the same has be­ come valid, to all intents and purposes, as a part of the constitution of the United States. Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. Over time, Congress deleted the reference to newspapers and transferred the duty of publication from the Secretary of State, first to the Administrator of General Services, see Act of Oct. 31, 1951, ch. 655, § 2(b), 65 Stat. 710 (1951); Reo'rg. Plan No. 20 of 1950, § 1(c), 64 Stat. 1272, and then to the Archivist, see National Archives and Records Administration Act of 1984, Pub. L. No. 98-497, § 107, 98 Stat. 2280, 2291 (1984). The substance of the statutory directive, however, has remained the same. Section 106b and its antecedents have long been understood as imposing a ministerial, “record-keeping” duty upon the executive branch. See 96 Cong. Rec. 3250 (Message from President Truman accompanying Reorg. Plan No. 20 of 1950); Judith L. Elder, Article V, Justiciability, and the Equal Rights Amendment, 31 Okla. L. Rev. 63, 75-76 (1978). The Archivist may not refuse to certify a valid amendment. See United States ex rel. Widenmann v. Colby, 265 F. 998, 999 (D.C. Cir. 1920) (no discretion to refuse publication once official notice received, as publication is merely “ministerial act”), a ff’d mem. sub. nom. U.S. ex rel. Widenmann v. Hughes, 257 U.S. 619 (1921); United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff'd, 845 F.2d 98 43 (2d Cir.), cert, denied, 488 U.S. 827 (1988).19 Nonetheless, section 106b clearly requires that, before performing this ministerial function, the Archi­ vist must determine whether he has received “official notice” that an amendment has been adopted “according to the provisions of the Constitu­ tion.” This is a question of law that the Archivist may properly submit to the Attorney General for resolution. See 28 U.S.C. § 511 (“The Attorney General shall give his advice and opinion on questions of law when required by the President.”).20 B. As we concluded above, the Congressional Pay Amendment has been adopted in accordance with the Constitution. The only obstacle to the Archivist’s promulgation of the amendment would be the thesis, advanced by some commentators, that under Coleman v. Miller, 307 U.S. 433 (1939), Congress alone among the branches may determine whether an amendment has been constitutionally adopted. Under this theory, the Archivist must wait for a determination of the matter by Congress or, at most, issue a “conditional certification” of an amendment in deference to possible con­ gressional action. We believe that Coleman is not authority for this theory, and that congressional promulgation is neither required by Article V nor consistent with constitutional practice. As a consequence, we believe that the Archivist was not required to wait for a congressional promulgation to certify the Congressional Pay Amendment as valid. 1. In Coleman, the Court considered the validity of the ratification by Kan­ sas of the Child Labor Amendment, proposed by Congress in 1924. 307 U.S. at 435-36. Members of the Kansas Legislature had brought a state-court action alleging that the Kansas ratification had been invalid because, inter alia, the State Legislature had ratified the amendment some thirteen years after Con­ gress had proposed it. Congress had not imposed a time-limit on ratification ‘’ Indeed, there is authority for the proposition that the Archivist’s Certificate is not necessary to an am endm ent's validity. The text of Article V contains no such requirement. See a lso D illon v. G lo s s , 256 U.S. 368, 376 (1921) (Eighteenth Amendment became valid on the date it received its final ratifi­ cation; the date o f publication was “not material, for the date of [an amendm ent's] consummation, and not that on which it is proclaimed, controls.”). 20 Others have recognized the Attorney General's role in resolving such legal questions. Concerning the validity of ratifications of the Equal Rights Amendment, Professor Dellinger questioned w hy the Administrator o f General Services, at that time the official responsible for certifying new amendments, would submit the question to Congress: "An administrator uncertain about the lawful exercise o f one of her responsibilities is normally expected to refer the question to the Attorney General for an opinion and then act in accordance with that opinion.” 97 Harv. L. Rev. at 402. That was exactly w hat the administrator at the time intended to do. Asked what would be done if the requisite number o f states had ratified but some States had purported to rescind their ratifications, the Deputy Archivist stated that “we would call upon the Attorney General to determine the answer to the legal question on rescission.” Senate Hearings, at 109 (testimony of James E. O’Neill). 99 when it had proposed the amendment to the States. The Supreme Court of Kansas held that the amendment remained susceptible to adoption despite the thirteen-year delay, and dismissed the suit. Id. at 437. The Supreme Court of the United States reversed. There was no majority opinion on the validity of the Kansas ratification. Three Justices — Chief Justice Hughes, Justice Stone, and Justice Reed — determined that the ques­ tion w hether Kansas had ratified within a “reasonable time” was a nonjusticiable political question. Chief Justice Hughes asserted that the resolution of such a question would depend on social, political, and eco­ nomic conditions that courts were incompetent to address. Id. at 453-54. “On the other hand,” he reasoned, “these conditions [were] appropriate for the consideration of the political departments of the Government.” Id. at 454. The Hughes opinion concluded that the question whether an amend­ ment had lapsed should “be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment.” Id. Four Justices — Justice Black, joined by Justices Roberts, Frankfurter, and Douglas — went even further. They disclaimed any judicial review of a congressional determ ination as to the adoption of an amendment. “ [Undivided control of [the amendment] process had been given by [Article V] exclusively and completely to Congress,” Justice Black wrote. Id. at 459 (Black, J., concurring). “Therefore, any judicial expression amounting to more than mere acknowledgement of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional au­ thority.” Id. at 459-60. Two Justices — Justices Butler and McReynolds — dissented on the ground that the amendment was invalid because of the thirteen-year delay. Id. at 473-74 (Butler, J., dissenting). Neither Chief Justice Hughes nor Justice Black explained the constitu­ tional basis for the assertion that Congress had authority to “promulgate” an amendment. Rather, Chief Justice Hughes relied on the “special circum­ stances” surrounding the adoption of the Fourteenth Amendment in 1868. Id. at 449-50.21 At that time, as we have seen, the duty of publication of constitutional amendments rested with the Secretary of State. Because of irregularities in the ratifications of Ohio and New Jersey — the legislatures of both States had attempted to rescind their earlier votes to approve the amendment — Secretary Seward issued a “conditional certification” of the Fourteenth Amendment on July 20, 1868. Proclamation No. 11, 15 Stat. 706 (1868). Secretary Seward certified that if the resolutions of Ohio and New Jersey were still effectual, notwithstanding the subsequent attempts to re­ scind, “then the . . . amendment . . . ha[d] become valid, to all intents and 31Justice Black provided no support for his assertion. 100 purposes, as a part of the Constitution.” Id. at 707. Secretary Seward dis­ claimed any authority to resolve the matter himself. Id. The next day, Congress passed a concurrent resolution declaring the Four­ teenth Amendment to be a part of the Constitution and directing Secretary Seward to promulgate it as such. Cong. Globe, 40th Cong., 2d Sess. 4266, 4295-96 (1868). The Senate passed the resolution without any debate, id. at 4266, and in the House the only question was whether Georgia, of whose ratification the Speaker had received notice by telegraph, should be included on the list of ratifying States. Id. at 4295-96. One week later, on July 28, 1868, Secretary Seward issued a second proclamation, “in execution o f ’ the concurrent resolution and “in conformance thereto,” certifying the Fourteenth Amendment as valid. Proclamation No. 13, 15 Stat. 710 (1868). “Thus,” observed Chief Justice Hughes, in the case of the Fourteenth Amendment “the political departments of the Government dealt” with ques­ tions concerning the ratification of the amendment. Coleman, 307 U.S. at 449. He apparently used the events surrounding the adoption of the Four­ teenth Amendment as a model and simply assumed that, if and when the issue arose with respect to the Child Labor Amendment, the same proce­ dures would obtain. See id. at 454 (“The [eventual] decision by the Congress, in its control of the action of the Secretary of State, of the question whether the [Child Labor Amendment] had been adopted within a reasonable time would not be subject to review by the courts.”). The plurality opinion did not address the question whether, in the event the Secretary of State decided to certify the amendment on his own, congressional promulgation would still be necessary. Indeed, given the posture of the case, the Justices could not have addressed that question: the Child Labor Amendment was nowhere near ratification, and circumstances had not required the Secretary to make any decision regarding the validity of the amendment.22 Chief Justice Hughes’s opinion is thus best understood as resting on a political question rationale: courts will not attempt to resolve certain ques­ tions concerning the validity of states’ ratifications of constitutional amendments. Rather, the decision of the political branches will control. To read the Hughes opinion as addressing the relationship between the political branches and requiring the Executive to defer to Congress on the adoption of an amendment would be to resolve an issue that was not before the Coleman Court. As it was, the Coleman dissenters took their brethren to task for even addressing the role of Congress in the amendment process. The Court had not heard argument on that point, they protested; Congress’s role had not been “raised by the parties or by the United States appearing as amicus c u r i a e 307 U.S. at 474 (Butler, J., dissenting). At most, Coleman stands for the proposition that the validity of a constitutional amendment is “ The Hughes opinion endorsed the Court’s earlier holding in L e ser v. G a m eit, 258 U.S. 130, 137 (1922), that the Secretary would be bound by official notice from a state respecting its ratification. Se e C o le m a n , 307 U.S. at 451. 101 a political question. That proposition has no bearing on the actions of the Archivist, an officer of one of the political branches.23 2. On its merits, the notion of congressional promulgation is inconsistent with both the text of Article V of the Constitution and with the bulk of past practice.24 Article V clearly delimits Congress’s role in the amendment pro­ cess. It authorizes Congress to propose amendments and specify their mode of ratification, and requires Congress, on the application of the legislatures of two-thirds of the States, to call a convention for the proposing of amend­ ments. Nothing in Article V suggests that Congress has any further role. Indeed, the language of Article V strongly suggests the opposite: it provides that, once proposed, amendments “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by” three-fourths of the States. (Emphasis added.) As Professor Dellinger has written, the Constitution “re­ quires no additional action by Congress or by anyone else after ratification by the final state.” 97 Harv. L. Rev. at 398. To interpret Article V “as requiring or permitting” a further step of congressional promulgation is, in the words of another scholar, “no more defensible than to find a third house of Congress hidden cleverly in the interstices of the constitutional language vesting all legislative power in a House and a Senate.” Rees supra, at 899. 23We have discussed C hief Justice H ughes’s opinion because it is the only part of C olem an other than the judgm ent that m ight be considered authoritative. If the views o f the majority Justices had any com m on ground. C hief Justice Hughes's occupied the narrowest portion of that ground: Justice B lack's disclaim er of any judicial inquiry is broader than the C hief Justice’s approach. Scholars doubt whether C o le m a n has authority even as a political question decision. Grover Rees III, Throw ing A w ay the K ey: T h e U n c o n stitu tio n a lity o f the Equal R ig h ts A m en d m en t E x ten sion, 58 Tex. L. Rev. 875, 887-88 (1980) (“ R ees” ); Dellinger, at 388 n.8. See a lso A F L -C IO v. M a rch Fong E u, 686 P.2d 609, 616 (Cal. 1984) Indeed, C hief Justice Rehnquist has questioned whether C o lem an's analysis still obtains in the context o f A rticle V. S e e U h le rv . A F L-C IO , 468 U.S. 1310(1984) (Rehnquist, Circuit Justice); b u t cf. G o ld w a ter v. C a rte r, 444 U.S. 996, 1002 (1979) (Rehnquist, J„ concurring) (relying on C olem an to conclude that P resident’s pow er to denounce a treaty was a nonjusticiable political question). 24In 1977, this Office stated that Congress could by concurrent resolution extend the tim e-lim it for ratification o f the Equal Rights Amendment. S ee Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office o f Legal Counsel (Oct. 31, 1977) (“ O ctober M em orandum "). S ee also E x te n d in g the R a tifica tio n P e rio d f o r the P ro p o sed E qu a l R ig h ts A m e n d m e n t: H e a rin g s on H .J. Res. 638 B e fo re the S ubcom m . on C ivil a n d C o n stitutional R ig h ts o f the H o u se C o m m , on th e J u d ic ia ry , 95th Cong., 1st Sess. 5-7 (1977) (statement of John M. Harmon, A ssis­ tant A ttorney G eneral, Office of Legal Counsel); Senate Hearings, supra, note 6. Relying on C olem an, this O ffice further concluded that Congress has the exclusive power to determine whether an amend­ m ent h as been tim ely adopted. See October M emorandum at 17, 20-21, 43. See a lso P ow er o f a State L e g is la tu r e to R e s c in d its Ratification o f a C o n stitu tio n a l A m en d m en t, 1 Op. O.L.C. 13 (1977). In an aside, w e specifically referred to the Congressional Pay Amendment and noted our view that if and when the thirty-eighth ratification was received, Congress would have the duty to decide whether too much tim e had passed for the Amendment to be viable. S e e October Memorandum at 21 & n.26; see a ls o id. at 35 n.43 (Congress may determine whether an amendment has been adopted by concurrent reso lu tio n ). T hose opinions arose in a factual setting quite different from the instant case. The “reproposal” o f a constitutional amendment may be an exclusively congressional function in a way that th e certification o f a ratified amendment is not. See H o llin g sw o rth v. Virginia, 3 U.S. 378 (1798) (thought to stand for the proposition that the President’s signature is not needed for proposal o f an am endm ent). To the extent that our earlier opinions suggest that Congress alone must make the deter­ m ination o f the adoption o f a constitutional amendment, we reject them today. 102 In light of the overall structure of the Constitution, it would be surprising if Article V did confer such exclusive power on Congress. The fundamental features of the American constitutional system - federalism and separation of powers — produce a division of power designed to ensure that the people, rather than any organ of the government, are sovereign. As Attorney Gen­ eral Edward Bates explained in 1861, the Framers of the Constitution rejected the notion that “Parliament is omnipotent.” See 10 Op. Att’y Gen. 74, 75 (1861). Instead, the federal government “is not vested with the sovereignty, and does not possess all the powers of the nation. It has no powers but such as are granted by the Constitution.” Id. at 77. The same principle undergirds the separation of powers: the three branches of the federal government “are co-ordinate and coequal — that is, neither being sovereign, each is indepen­ dent in its sphere, and not subordinate to the others.” Id. at 76. To give one branch of government ultimate control over the Constitution’s very content would be to repudiate the American approach in favor of a return to parlia­ mentary supremacy. Article V, however, shows that the Constitution is consistent in its rejection of governmental sovereignty. The drafting history of Article V reaffirms this conclusion. The Federal Convention designed the amendment system so that both Congress and the states played important roles. At the convention, the Framers manifested a marked distrust of Congress in the amendment process. An early outline of the Constitution specified that the Constitution could be amended “without requiring the assent of the Natl. Legislature.” 1 Records Federal Convention o f 1787 121 (Max Farrand, ed., revised ed. 1966). In supporting that provi­ sion, George Mason argued: “It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.” Id. at 203.25 Mason reaffirmed his concern in the final days of the convention and argued that Article V gave Congress too much power and ability to abuse the process. 2 Records o f the Federal Convention o f 1787 629 (Max Farrand, ed., revised ed. 1966). Article V was specifically altered by the convention to accommodate Mason’s concern. Id. Commentary during the ratification debates bears out the Framers’ inten­ tion to check the power of Congress in the amendment process. Madison explained in Federalist No. 39 that the amendment system balanced the States and the federal government, so that the system is “neither wholly federal, nor wholly national.” The Federalist No. 39, at 257 (James Madison) (Jacob E. Cooke ed., 1961). In discussing the provisions for calling a conven­ tion upon the petition of two-thirds of the States, Alexander Hamilton states: [The amendments so proposed] “shall be valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in “ The Congressional Pay Amendment, dealing as it does with the power o f members o f Congress to increase their salaries, is just the sort o f amendment to which Mason’s comm ent would apply most readily. 103 three-fourths thereof.” The words of this article are peremp­ tory. The congress “shall call a convention.” Nothing in this particular is left to the discretion of that body [Congress]. The Federalist No. 85, at 593 (Alexander Hamilton) (Jacob E. Cooke, ed., 1961). These words are equally applicable to ratification of an amendment by three-fourths of the States. Discussing Article V more generally, Hamilton concluded by observing that “[w]e may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” Id. These statements are inconsistent with the notion that Con­ gress has a general power of superintendence over the amendment process. Congressional promulgation is also at odds with the bulk of past practice in this area. As we have seen, Chief Justice Hughes in Coleman used the “special circumstances” surrounding the adoption of the Fourteenth Amend­ ment as a model for the only instance of congressional involvement in the promulgation of an amendment following ratification in more than two hun­ dred years. See, e.g., Dellinger, at 400. There has never been another “conditional certification” of an amendment by the executive branch.26 The concurrent resolution “promulgating” the Fourteenth Amendment, adopted with no substantive debate, was unnecessary and an aberration. The events surrounding the adoption of the Fifteenth Amendment two years later demonstrate that fact.27 Irregularities in State ratifications also plagued this Amendment — New York had attempted to rescind its ratifica­ tion, see Cong. Globe, 41st Cong., 2d Sess. 1444 (1870), and two other States, Ohio and Georgia, ratified the amendment only after having rejected it once, see Memorandum to Don W. Wilson, Archivist of the United States, from Martha L. Girard, Director of the Federal Register 6 (May 22, 1991). 26S e e Letter to Governors o f the Several States from Thomas Jefferson, Secretary of State (M arch 1, 1792), r e p r in te d in 2 The B ill o f Rights: A D o cu m en ta ry H istory 1203 (Bernard Schwartz, ed., 1971) (First through Tenth Amendments); President John Adams, Message to Congress, 7 Annals o f Cong. 809 (1798) (Eleventh Amendment); L etter to Governors of the Several States from James Madison, Secretary o f State (Sept. 25, 1804) (Twelfth Amendment), cited in C onstitution A nno ta ted , at 28 n.4; C ertification by W illiam H. Seward, Secretary of State, 13 Stat. 774 (1865) (Thirteenth Amendment); C ertification o f Ham ilton Fish, Secretary of State, 16 Stat. 1131-32 (1870) (Fifteenth Amendment); C ertification by Philander C. Knox, Secretary of State, Act of Feb. 25, 1913, 37 Stat. 1785 (1913) (Sixteenth Am endm ent); Certification by William Jennings Bryan, Secretary of State, Act o f May 31, 1913 ,3 8 Stat. 2049 (1913) (Seventeenth Amendment); Certification by Frank L. Polk, Acting Secretary o f State, Act o f Jan. 28, 1919, 40 Stat., “ Eighteenth Amendment to the Constitution” 1 (1919); Certifi­ cation by Bainbridge Colby, Secretary o f State, Act of Aug. 26, 1920, 41 Stat. 1823 (1920) (Nineteenth A m endm ent); Certification by Henry L. Stimson, Secretary of State, Act of Feb. 6, 1933,47 Stat. 2569 (1933) (Twentieth Amendment); Certification by W illiam Phillips, Acting Secretary of State, Act of Dec. 5, 1933, 48 Stat. 1749 (1933) (Twenty-First Amendment); Certification by Jess Larson, Adminis­ trator o f General Services, 16 Fed. Reg. 2019 (1951) (Twenty-Second Amendment); Certification by John L. M oore, A dm inistrator of General Services, 26 Fed. Reg. 2808 (1961) (Twenty-Third Amend­ m ent); Certification by Bernard L. Boutin, Administrator of General Services, 29 Fed. Reg. 1715(1964) (Tw enty-Fourth A m endment); Certification by Lawson B. Knott, Administrator o f General Services, 32 Fed. Reg. 3287 (1967) Twenty-Fifth Amendment), Certification by Robert L. Kunzig, Administrator of General Services, 36 Fed Reg. 12,725 (1 9 7 1) (Twenty-Sixth Amendment). 11 C hief Justice Hughes in Coleman briefly noted the events surrounding the ratification of the Fifteenth Am endm ent, but did not assign them any weight in this analysis. S e e 307 U.S. at 450 n.25. 104 On February 21, 1870, Senator Williams introduced a joint resolution declar­ ing that the Amendment had become valid as part of the Constitution. Cong. Globe, 41st Cong., 2d Sess. 1444 (1870). Shortly thereafter, the Senate passed a different resolution requesting that the Secretary of State inform the Senate which States had ratified the Amendment. Id. at 1653. On March 30, 1870, Secretary of State Hamilton Fish issued a proclama­ tion certifying that the Fifteenth Amendment had become valid. The proclamation noted the attempted rescission by New York, but did not men­ tion the questions regarding the Ohio and Georgia ratifications. 16 Stat. 1131 (1870). The Senate took no action in response to the proclamation, and Senator Williams allowed his earlier resolution to die. Cong. Globe, 41st Cong., 2d Sess. 3142 (1870). There was some debate in the House concerning the validity of the New York and Indiana ratifications, id. at 2298, but ultimately the House passed a resolution declaring that the Amend­ ment had become a binding part of the Constitution. Id. at 5441.28 At no time during the consideration of the Fifteenth Amendment did anyone in Congress suggest that congressional promulgation was essential to its valid­ ity. As the Fifteenth Amendment was adopted only two years after the Fourteenth, the absence of such a suggestion demonstrates that the congres­ sional promulgation of the Fourteenth Amendment was merely an aberration. If congressional promulgation is required, Secretary Fish illegally certi­ fied that the Fifteenth Amendment was part of the Constitution.29 Indeed, the executive branch would have illegally certified every amendment except the Fourteenth.30 If only to avoid this absurd conclusion, we must reject the assertion that only Congress may promulgate an amendment. III. We conclude that the Congressional Pay Amendment has been validly ratified pursuant to the procedures set forth in Article V, and that the Archi­ vist of the United States was required to promulgate the Twenty-Seventh Amendment pursuant to 1 U.S.C. § 106b. TIMOTHY E. FLANIGAN Acting Assistant Attorney General Office of Legal Counsel “ The House Resolution also confirmed the validity of the Fourteenth Amendment. Cong. Globe, 41st Cong., 2d Sess. 5441 (1870). 29The experience o f the Fifteenth Amendment also refutes a modified version of Justice Black’s thesis, under which congressional certification would be required in doubtful cases. The status of the Fifteenth Amendment was as doubtful as that of the Fourteenth, and for the same reasons. 30O f course, the certifications would nevertheless be binding on the courts. Se e L eser v. G arnett, 258 U.S. 130 (1922); U n ited S ta te s v. Thom as, 788 F.2d 1250, 1253 (7th Cir.) (Easterbrook, J.), cert, d e ­ nied. 479 U.S. 853 (1986), cf. F ield v. C lark, 143 U.S. 649, 669 (1892). 105 APPENDIX The Congressional Pay Amendment had its beginnings in the ratification conventions of States considering the original Constitution. Several States proposed amendments when they ratified the Constitution. Two of these, Virginia and New York, included a precedent to the Congressional Pay Amend­ ment. 2 The Bill o f Rights: A Documentary History 844, 916 (Bernard Schwartz, ed., 1971) (“Schwartz”).1 North Carolina proposed amendments on August 2, 1788, without at first ratifying the Constitution. Id. at 966, 977. Among the amendments it proposed was a congressional pay provision taken almost verbatim from Virginia’s. See id. at 970-71. Representative James Madison included Virginia’s proposal in the resolution of amend­ ments he proposed to the House on June 8, 1789. 4 Documentary History o f the First Federal Congress of the United States o f America 9, 10 (Charlene Bangs Bickford and Helen E. Veit, eds., 1986) (“4 First Congress"). On the motion of Elbridge Gerry, the proposed amendments of several States, in­ cluding New York’s congressional pay proposal, were also put before the House. Id. at 4, 19, 24. There was relatively little debate on the proposed Congressional Pay Amendment in Congress. Madison forecast that Congress’s power over the compensation of its members was unlikely to be abused, but nevertheless pointed out the impropriety of giving members the power “to put their hand into the public coffers, to take out money to put in their pockets.” 1 Annals of Cong. 457 (Gales & Seaton eds., 1789). Congressman John Vining later echoed this sentiment: “There was, to say the least of it, a disagreeable sensation, occasioned by leaving it in the breast of any man to set a value on his own work.” Id. at 756-57. Another Congressman, however, thought that “much inconvenience and but very little good would result” from the amend­ ment. Id. at 756 (statement of Theodore Sedgwick). Congress approved the proposal of twelve amendments to the Constitu­ tion on September 25, 1789. The Congressional Pay Amendment was approved with only a minor change in wording made in the Senate. See 4 First Congress, at 44-46. As sent to the states for ratification, it read: No law, varying the compensation for the services of the Sena­ tors and Representatives, shall take effect, until an election of Representatives shall have intervened. ‘ Virginia ratified the Constitution on June 25, 1788, after narrowly defeating a motion to propose am endm ents prior to ratification. See Schwartz, at 834-39. TWo days later, the convention proposed am endm ents, including: “That the laws ascertaining the compensation of senators and representatives for their services, be postponed, in their operation, until after the election of representatives immedi­ ately succeeding the passing thereof; that excepted which shall first be passed on the subject." Id. at 844. N ew York ratified the Constitution and proposed amendments on July 26, 1788. Among its proposed am endm ents was “That the Compensation for the Senators and Representatives be ascer­ tained by standing Laws; and that no alteration of the existing rate of Compensation shall operate for the Benefit o f the Representatives, until after a subsequent Election shall have been had." Id. at 916. 106 1 Documentary History o f the First Federal Congress o f the United States o f America 208 (Linda Grant De Pauw, et al., eds., 1972) (“ 1 First Congress") (reproducing entry from Appendix to Senate Legislative Journal, 1st Cong., 1st Sess.). C f Act of Sept. 23, 1789, ch. 27, 1 Stat. 97 (1789). The pro­ posed amendments were transmitted to the eleven States that had ratified the Constitution, as well as to North Carolina and Rhode Island. See 4 First Congress, at 9, 48. When the amendments were proposed, nine States constituted the threefourths necessary for ratification of the amendments. Before any States had acted on the amendments, North Carolina ratified the Constitution; nine States still constituted three-fourths. The Bill of Rights and the States: The Colo­ nial and Revolutionary Origins o f American Liberties xxi (Patrick T. Conley and John P Kaminski, eds., 1992) (“Bill of Rights and the States”). The Congressional Pay Amendment had been ratified by only four States before Rhode Island ratified the Constitution on May 29, 1790, bringing the num­ ber of States in the Union to 13, three-fourths of which was ten. Before any more States ratified the amendment, Vermont joined the Union, bringing the total to 14, three-fourths of which was eleven. Regardless of the time at which the “three-fourths” requirement was determined, however, the Con­ gressional Pay Amendment was never close to that total in its initial period. It received only two more ratifications in 1791, for a total of six.2 Thomas Jefferson, as Secretary of State under George Washington, was responsible for monitoring the States’ actions on the proposed amendments. Id. at xxii. His tally shows that of the thirteen original States and Vermont, six ratified the amendment. Id. at xxiii (photographic reproduction of Jefferson’s tally). Five States rejected the amendment, three of them “si­ lently,” meaning that the ratification documents made no reference to the Congressional Pay Amendment. Id. at xxii-xxiii. The other three States did not respond: Massachusetts, Connecticut, and Georgia. Id. The six States that ratified the Congressional Pay Amendment along with what is now the Bill of Rights are: o M aryland. D ecem ber 19, 1789. 1 F irs t C o n g re ss, at 349-50 (reproducing e n try in S en ate Journal o f June 14, 1790). o N orth C arolina, D ecem ber 22, 1789. 1 F irst C o n g re s s, at 346-47 (reproducing en try in Senate Journal o f June 11, 1790). o S outh C arolina, January 28, 1790, 1 F irs t C o n g re ss, at 275-76 (reproducing e n try in Senate Journal o f April 3, 1790). o D elaw are, January 28, 1790, 1 F irst C o n g re ss, at 253-54 (reproducing e n try in S enate Journal o f M arch 8, 1790). o Verm ont, N ovem ber 3, 1791, Schw artz, at 1202-03; B ill o f R ig h ts a n d the S ta te s , at xxii. o V irginia, D ecem ber 15, 1791, Schw artz, at 1202. 2 By contrast, the third through twelfth proposed amendments, now known as the Bill o f Rights, were ratified by the requisite eleven States by December 15, 1791, when Virginia ratified them. See B ill o f R ights a n d the S ta tes, at xxii; Schwartz, at 1201-02. 107 The Bill of Rights was ratified without the Congressional Pay Amend­ ment by five States, two of which have since ratified the Congressional Pay Amendment: o N ew H am pshire ratified th e first and third through tw elfth proposed am endm ents on January 25, 1790. 1 F ir s t C o n g re ss, a t 348-49 (reproducing entry in S enate Jo u rn al o f June 14, 1790). T he docum ent transm itted to the C ongress indicates th at it “rejected” the second article o f the proposed am endm ents. Id. at 348. N ew H am pshire subsequently ratified the C ongressional Pay A m endm ent on M arch 7 , 1985. S e e 131 Cong. R ec. 6689 (1985); 138 C ong. Rec. S6831 (daily ed. M ay 19, 1992). o N ew Jersey ratified all but the second am endm ent on N ovem ber 20, 1789. 1 F irs t C o n g r e s s , at 475-76 (reproducing entry in Senate Journal o f A ugust 6, 1790). T h e notification transm itted to C ongress d id not m ention the second proposed am endm ent. Id. N ew Jersey subsequently ratified the C ongressional P ay A m endm ent on M ay 7, 1992. 138 Cong. Rec. S 6831, S6846 (daily ed. M ay 19, 1992). o T h e N ew York legislature ratified the first and th ird through tw elfth proposed am en d m ents on February 24, 1790. 1 F ir s t C o n g re ss, at 279-80 (reproducing en try in S enate Journal o f April 5, 1790).3 The docum ent transm itted to the C o n g ress indicates that it ratified all o f the proposed am endm ents “except the second.” Id . Although th a t docum ent d o es not m ention a form al rejection o f the p ro p o sed am endm ent, a contem porary new spaper account reported that it w as rejected by a vote of 52 to 5. Schw artz, at 1178. o R h o d e Island ratified all b u t the second am endm ent on June 11, 1790. S e e 1 F irst C o n g r e s s , at 389 (reproducing entry in Senate Journal o f June 30, 1790); B ill o f R ig h ts a n d th e States, a t xxii. The notification transm itted to C ongress does not m ention the second proposed am endm ent. 1 F irst C o n g re s s, at 389. o P en n sylvania ratified all b u t the first and second proposed am endm ents on M arch 10, 1790. 1 F irst C o n g re s s, at 260-61 (reproducing entry in S enate Journal o f M arch 16, 1790). The notification transm itted to C ongress does not m ention the am en d m en ts that were n o t ratified. Id. N ew spaper accounts indicate that the first tw o am endm ents were postponed for fu rth er consideration, but there is no in d ica­ tion o f w hether they w ere form ally rejected. Schw artz, at 1176. Massachusetts, Connecticut, and Georgia did not notify the federal govern­ ment of any action on the proposed amendments.4 Further action to impose a constitutional limitation on congressional pay did not come until 1816. During its first session, the Fourteenth Congress passed a law replacing its per diem pay, which had remained unchanged since the first Congress, with a salary of $1500 per year. Act of Mar. 19, 3The resolution was approved by New York's Council o f Revision on February 27, 1790. 1 F irst C o n g re ss, at 280. 4 M assachusetts presented a unique case. Its legislative records indicate that it considered the am end­ m ents, and agreed to ratify most. The Congressional Pay Amendment was “rejected” by the M assachu­ setts Senate, Schw artz, at 1174, and was “not accepted” by the M assachusetts House. Id. at 1175. H ow ever, M assachusetts did not notify the federal government of these actions. Id. at 1172. When Secretary o f S tate Thom as Jefferson sought such notification, he was told that the M assachusetts legis­ lature had never passed the official bill ratifying the amendments. Id. at 1175. Massachusetts ultimately ratified the Bill of Rights in 1939, as did Georgia and Connecticut. Bill o f Rights an d the States, at xxii. 108 1816, ch. 30, 3 Stat. 257. See also 29 Annals of Cong. 199-204 (1816). The Compensation Act was extraordinarily unpopular. See Henry Adams, History o f the United States of America During the Administrations of James Madi­ son 1274-76 (Library of America 1986). Immediately upon convening the second session of the Congress, a bill repealing the Act was introduced. See 30 Annals of Cong. 10 (1816). Beyond merely a repeal of the offensive statute, Senator James Barbour introduced a joint resolution proposing a con­ stitutional amendment identical to the Congressional Pay Amendment in all but punctuation: No law varying the compensation for services of the Senators and Representatives shall take effect until an election of Rep­ resentatives shall have intervened. Id. at 30. See also Herman V. Ames, The Proposed Amendments to the Constitution o f the United States During the First Century o f its History, H.R. Doc. No. 353, 54th Cong., 2d Sess., pt. 2, at 34 (1897) (“Ames”). Congress repealed the Compensation Act, see Act of Feb. 6, 1817, ch. 9, 3 Stat. 345, but did not act on the proposed amendment. Nevertheless, several states joined the call for such an amendment. On January 17, 1817, the General Assembly of Kentucky proposed a constitu­ tional amendment nearly identical to the Congressional Pay Amendment: That no law varying the compensation of the members of the congress of the United States, shall take effect until the time for which the members of the house of representatives of that congress by which the law was passed, shall have expired. 1816-17 Ky. Laws 279. See also Ames, at 333. The legislatures of Massa­ chusetts and Tennessee passed resolutions proposing similar amendments. Ames, at 34-35, 333. Tennessee’s resolution, identical to that of Kentucky except for punctuation and capitalization, was received by the Senate and printed in the Annals o f Congress although only by a narrow vote after “considerable debate.” 31 Annals of Cong. 170 (1818). Congress took no action on any of these proposals. The legislature of Illinois, however, passed a resolution criticizing Kentucky’s proposed amendment as “unnecessary and inexpedient” and directing Illinois’s representatives in Congress to op­ pose the proposal. 1821 111. Laws 187. Illinois’s resolution was transmitted to Congress. 38 Annals of Cong. 35 (1821). Vermont, Ohio and New Hamp­ shire also passed resolutions opposing Kentucky’s proposal. 1817 Vt. Laws 100-01; 1818 Ohio Laws 202-03; 1818 N.H. Laws 165. See also Ames, at 333. It does not appear that any of those States took action at that time to ratify or reject the Congressional Pay Amendment proposed by the first 109 Congress, nor is there any indication whether anyone at the time considered that amendment to be pending before the States.5 In 1822, three new amendments related to congressional salaries were proposed, though Congress did not act on any of them. Ames, at 35. One was essentially the same as the Congressional Pay Amendment, except that it did not apply to Senators: That no increase or diminution of the compensation to Repre­ sentatives, for their services as such, shall be made by Congress, to have effect or operation during the period for which the members of the House o f Representatives, acting upon the sub­ ject, shall have been elected. 39 Annals of Cong. 1752 (1822). Another fixed the compensation of mem­ bers of Congress at the amount paid to members of the first Congress. See id. at 1768. The third provided that compensation for members of Congress, as well as the President and Vice President, would be fixed every ten years, after the census, and that alterations would take effect only after the particular official’s current term had expired. Id. at 1777-78. Again, there is no indication whether those members proposing the amendments believed that the amend­ ment proposed by the first Congress was still pending. The brief remarks in the Annals o f Congress do not address the issue. See id. at 1753, 1768. The only state to take formal action on the Congressional Pay Amend­ ment in the 19th century was Ohio. Its General Assembly ratified the proposed amendment on May 6, 1873. As expressed in the ratifying resolution, the legal theory was straightforward: under Article V, proposed amendments be­ come valid when ratified by three-fourths of the States, and the Congressional Pay Amendment “not having received the assent of the Legislatures of threefourths of the several States is still pending for ratification.” 1873 Ohio Laws 409 (joint resolution ratifying the second article of the twelve amend­ ments to the Constitution submitted by the first Congress).6 It is unclear what became of Ohio’s ratification. Although the resolution called upon the governor to transmit the ratification to the President and Congress, more than one hundred years later, in 1985, the National Archives and Records Service reported that Ohio, as well as several other States, had not sent official notice of ratification to the federal government. Robert S. Miller and Donald O. Dewey, The Congressional Salary Amendment: 200 Years Later, 10 Glendale 5 Vermont had already ratified the Congressional Pay Amendment and New Hampshire had previously rejected it. S e e su p ra , pp. 107-08. ‘ O hio’s action received considerable attention early in this century, when several proposals were made to am end the C onstitution to impose a tim e limit on ratification for all amendments. M embers of C ongress supporting the proposal pointed to Ohio's ratification of the Congressional Pay Amendment as a prim e exam ple o f the consequences o f having no time limits on amendments. S e e e.g., 55 Cong. Rec. 5556-57 (1917); 58 Cong. Rec. 5697, 5699 (1919). 110 L. Rev. 92, 102 (1991).7 Those States have since transmitted official notices. See id.\ 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certifica­ tion of the 27th Amendment, listing the forty states that had ratified the amendment and transmitting notification to the Archivist before May 18, 1992); 138 Cong. Rec. S6835 (daily ed. May 19, 1992). The controversial pay increase that provoked Ohio’s ratification led to activity in Congress as well. Just as in the early 1800’s, several new amend­ ments, similar to that proposed by the first Congress, were introduced. Ames at 35. Congress took no action on them, however, instead repealing the pay increase. Id. The next action on the Congressional Pay Amendment did not come until March 3,' 1978, when the Wyoming legislature ratified it. See 124 Cong. Rec. 7910 (1978).8 Five years later, on April 27, 1983, Maine ratified the amendment, 130 Cong. Rec. 25,007-08 (1984), bringing the total number of ratifications to nine. Since then, thirty-two additonal States have ratified the amendment, most recently Missouri and Alabama on May 5, 1992, Michigan and New Jersey on May 7, 1992, Illinois on May 12, 1992, and California on June 26, 1992. See 57 Fed. Reg. 21,187, 21,188 (May 19, 1992) (Archivist’s certification); 138 Cong. Rec. E2237 (daily ed. July 24, 1992) (California). Thus, forty-one States have now ratified the amendment, three more than three-fourths of the fifty States. Some States that have ratified recently have elaborated the legal basis for their actions in their ratifying resolutions. Fourteen States mentioned the Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939), in their ratifying resolutions. Many used language to this effect: Whereas, the legislature of the state of New Mexico acknowl­ edges that the article of amendment to the constitution of the United States proposed by resolution of the First Congress on September 25, 1789, may still be ratified by states’ legislatures as a result of the ruling by the United States supreme court in the landmark case of Coleman v. Miller, 307 U.S. 433 ( 1 9 3 9 ).... 132 Cong. Rec. 3956 (1986) (New Mexico). Accord 134 Cong. Rec. 14,023 (1988) (Arkansas); 133 Cong. Rec. 11,618-19 (1987) (Montana); 135 Cong. Rec. 15,623 (1989) (Nevada); 135 Cong. Rec. 20,519-520 (1989) (Oregon); 135 Cong. Rec. 11,900-01 (1989) (Texas); 136 Cong. Rec. S9170 (daily ed. June 28, 1990) (Kansas); 137 Cong. Rec. S I0,949 (daily ed. July 25, 1991) (North Dakota); 138 Cong. Rec. S6845 (daily ed. May 19, 1992) (Alabama).9 Other States referred to Coleman without expressly tying it to their power 7 It should be noted that notice o f ratification by at least some of those States had been previously received by Congress and published in the Congressional Record. See 124 Cong Rec. 7910 (1978) (Wyoming); 130 Cong. Rec. 25,007-08 (1984) (Maine). 'T h e Governor of Wyoming signed the ratification on March 6, 1978. Miller and Dewey, 10 Glendale L. Rev., supra, at 100. ’ For ease of reference, we have cited to the resolutions as reprinted in the Congressional Record, Continued 111 to ratify the Congressional Pay Amendment, and also noted the lack of any time limit either generally in Article V or specifically in the Congressional Pay Amendment as proposed to the States. For example, Colorado, which on April 22, 1984, became the tenth State to ratify the amendment, states: Whereas, Article V of the United States Constitution does not state a time limit on ratification of an amendment submitted by Congress, and the First Congress specifically did not provide a time limit for ratification of the proposed amendment; and W hereas, The United States Supreme Court has ruled in Coleman v. Miller, 307 U.S. 433 (1939), that an Amendment to the United States Constitution may be ratified by states at any time, and Congress must then finally decide whether a reasonable time had elapsed since its submission when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment, . . . . 138 Cong. Rec. S6837 (daily ed. May 19, 1992) (Colorado). Accord 135 Cong. Rec. 5821 (1989) (Iowa); 135 Cong. Rec. 14,147 (1989) (Minnesota); 138 Cong. Rec. S 14,974 (daily ed. Sept. 24, 1992) (Missouri); 138 Cong. Rec. S8387 (daily ed. June 17, 1992) (Illinois). Other States have not cited Coleman, and instead have emphasized, as Ohio did, the absence of a time limit in the Congressional Pay Amendment proposal. For example, Wyoming, the first State to ratify the amendment in this century, stated in its ratifying resolution: Whereas the Congress of the United States, upon proposing that amendment, did not place any time limitation on its final adoption . . . . 1978 Wyo. Sess. Laws. 427. Accord 134 Cong. Rec. 9525 (1988) (Georgia); 134 Cong. Rec. 8752 (1988) (West Virginia); 135 Cong. Rec. 14,816 (1989) (Alaska); 136 Cong. Rec. S10.091 (daily ed. July 19, 1990) (Florida). See also 133 Cong. Rec. 24,779 (1987) (Wisconsin) (noting additionally that “the congress of the United States has the power to impose reasonable time ’ (....continued) although such publication has no independent legal consequence. The States generally transmit certified copies o f the resolutions directly to the Archivist of the United States. The resolutions, except for C alifo rn ia’s, are also reprinted together in the Congressional Record. See 138 Cong. Rec. S6831-46 (daily ed. M ay 19, 1992). A tabulation by the Archivist o f the dates o f ratification can be found in the Congressional Record. Id. at S6831. 112 limits for the ratification of proposed amendments”). Wisconsin’s ratification is noteworthy also because it is the only one that provides a rationale for the authority to ratify an amendment that was proposed before the State entered the Union: Whereas, the congressional pay changes amendment was val­ idly ratified by the state of Vermont on November 3, 1791, even though Vermont had not been one of the original 13 states to which the proposed amendment had been submitted, and had not yet achieved statehood when the amendment was submitted . . . . Id. Finally, many States mention neither Coleman nor time limits, nor allude to the fact that the amendment is approximately 200 years old. See 130 Cong. Rec. 25,007-08 (1984) (Maine); 1985 S.D. Laws 27 (South Dakota); 131 Cong. Rec. 6689 (1985) (New Hampshire); 131 Cong. Rec. 9443 (1985) (Arizona); 131 Cong. Rec. 27,963 (1985) (Tennessee); 131 Cong. Rec. 27,96364 (1985) (Oklahoma); 132 Cong. Rec. 8284 (1986) (Indiana); 132 Cong. Rec. 12,480 (1986) (Utah); 133 Cong. Rec. 23,571 (1987) (Connecticut); 134 Cong. Rec. 18,760 (1988) (Louisiana); 135 Cong. Rec. 14,572-73 (1989) (Idaho); 138 Cong. Rec. S7026 (daily ed. May 20, 1992) (Michigan); 138 Cong. Rec. S6846 (daily ed. May 19, 1992) (New Jersey); 138 Cong. Rec. E2237 (daily ed. July 24, 1992) (California). The Idaho legislature’s resolu­ tion was based, pursuant to state law, on a state referendum on the amendment. 135 Cong. Rec. 14,572-73 (1989). The Archives has indicated that it has received no rescissions of previous ratifications of the Congressional Pay Amendment, nor have we found any public record of rescissions.10 10 Several of the States that have ratified the amendment, however, had previously rejected it. To the extent reflected in documents transmitted to the federal government. New Hampshire had expressly rejected the amendment, while New Jersey had simply failed to ratify it when ratifying the other pro ­ posed amendments. In 1817, Vermont, which had ratified the amendment in 1791, passed a resolution opposing a similar amendment proposed by Kentucky, but the resolution specifically refers to the K en­ tucky, proposal and does not purport to rescind Vermont's earlier ratification of the Congressional Pay Amendment. See supra, p. 109. Oklahoma's ratification purports to have an expiration date — D ecem ­ ber 31, 1995 — pursuant to state law. 131 Cong. Rec. 27,964 (1985). 113

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September 1, 1978 78-48 MEMORANDUM OPINION FOR THE CHIEF, TORTS SECTION, CIVIL DIVISION Trade Secrets— Federal Food, Drug, and Cosmetic Act (21 U .S.C . § 331)— Disclosure— Swine Influenza Immunization Program (42 U .S.C . § 2746) This responds to your request for our opinion whether the Department may release to a court trade secret information entitled to protection under § 301 of the Federal Food, Drug, arid Cosmetic Act, 21 U.S.C. § 331 (j), where the manufacturers owning the trade secrets consent to such release. The Depart­ ment is defending certain personal injury and wrongful death actions arising out of the National Swine Influenza Immunization Program of 1976. See 90 Stat. 1114, 42 U.S.C. § 247b(k)(l)(A)(ii), which provides that the exclusive remedy under this program shall be against the United States. These actions have been consolidated for pretrial discovery purposes and are pending in the United States District Court of the District of Columbia. A relevant issue in the litigation will be the ingredients and manufacturing processes of the vaccine. The vaccine manufacturers claim that some of this information involves trade secrets. The court has issued a protective order requiring that documents involved in this iitigation be used for no other purpose. The order further provides that the documents or any information contained therein shall not be disclosed to anyone other than the attorneys and persons assisting them in litigation. Subject to the conditions in the protective order, the vaccine manufacturers have consented to use of the. information in the litigation. You ask whether the Department may, in light of § 301 (j), release in discovery proceedings documents containing trade secret information acquired under the authority of the Federal Food, Drug, and Cosmetic Act. Section 301(j), 21 U.S.C. § 33l(j), reads, in pertinent part, as follows: The following acts and the causing thereof are hereby prohibited: ***** (j) The using by any person to his own advantage, or revealing, other than to the Secretary or officers or employees of [the Depart­ ment of Health, Education and Welfare] when relevant in any judicial proceeding under this Act, any information acquired under authority 193 of sections 404, 409, 505, 506, 507, 510, 512, 513, 514, 515, 516, 518, 519, 520, 704, 706, or 708 of this title concerning any method or process which as a trade secret is entitled to protection. It is conceded that the pending judicial proceeding is not one under the Federal Food, Drug, and Cosmetic Act. However, we believe that the Department may release the documents in question in the pending litigation. The intention of § 301 (j) is solely to protect the manufacturers’ interests in their trade secrets and it is tied to their interest of maintaining the protection to which the trade secrets are entitled. A manufacturer can waive his right to this protection. The legislative history of § 301(j) shows that it was designed as a “ safeguard to the property rights of manufacturers by making [a crime] the unauthorized use or disclosure of any information. . .concerning any method or process which is entitled to protection in equity as a trade secret.” S. Rept. No. 493, 73d Cong., 2d sess. 18, 21 (1934). This is consistent with the terms of § 301 (j) barring disclosure of only the information relating to trade secrets that is “ entitled to protection.” Other than protecting the manufacturers’ proprie­ tary interest, there is no general societal value in keeping this information confidential. As mentioned above, § 301(j) only bars disclosure of such trade secrets information as is “ entitled to protection.” This entitlement runs to the owner of the trade secret who may waive it entirely or in part. See, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974); Underwater Storage, Inc. v. United States Rubber C o., 371 F. (2d) 950 (D.C. Cir. 1966), cert, denied, 386 U.S. 911 (1967). Thus, the “ entitled to protection” element of § 301 (j) is deter­ mined by the intent and legitimate interests of the owner of a covered trade secret. Accordingly, the owner may consent to a limited waiver in the pending litigation, thereby permitting the disclosure of the information to be used therein. Cf., Plastic & M etal Fabrications, Inc. v. Roy, 163 Conn. 257, 303 A. 2d 725 (1972). This comports with the literal language and the spirit of § 3010). For these reasons the Department may properly release the above-described documents in the pending litigation. M ary C . Law ton Deputy Assistant Attorney General Office o f Legal Counsel 194

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Award of Attorney Fees in Administrative Adjudications Under § 609 of the Federal Aviation Act The Equal Access to Justice Act (EAJA) authorizes an award of attorney fees to prevailing parties in adm inistrative adjudications conducted by the National Transportation Safety Board under § 609 o f the Federal Aviation Act to review decisions of the Federal Aviation Administration There is no support in the term s of the EAJA or its legislative history for an argum ent that an individual’s eligibility for an award of fees— and an agency’s liability— are confined to situations in w hich the agency whose position is at issue in the adjudication also controls its conduct; in any case, agencies generally have only a lim ited power to review their adm inistrative law judges’ decisions under the EAJA. March 23, 1982 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, DEPARTMENT OF TRANSPORTATION This responds to your request for the Department’s opinion whether the Equal Access to Justice Act authorizes an award of attorney fees to a party which prevails in administrative adjudications conducted by the National Transportation Safety Board (NTSB) under § 609(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1429 (1976).' For reasons stated hereafter we believe it does. A second question raised in your November 17 request, relating to the source of funds to pay a fee award under the Act, is addressed in a separate opinion of this date. I. Proceedings Under § 609(a) The NTSB has jurisdiction to review on appeal orders of the Federal Aviation Administration (FAA) amending, suspending, or revoking certain certificates issued by the Secretary of Transportation under the Federal Aviation Act. See 49 U.S.C. § 1903(a)(9). These certificates include airman certificates issued to pilots and other flight operators, and aircraft operating certificates issued to owners and operators of air carriers. See 49 U.S.C. §§ 1422 and 1423. Under 1 Your letter phrases the question som ew hat differently: it asks “ w hether the A ct authorizes o n e agency to m ake fee awards against another agency in covered adm inistrative proceedings." As will becom e ap p aren t, we th in k the q u estion so phrased is, as we understand your particular co n cern s, unnecessarily broad T h e issue o f the A c t’s applicability in § 609 proceedings is separate from that of the F A A s authority an d responsibility to expend its funds to pay awards m ade under the A ct. T he latter issue is discussed in our separate opinion to you of th is date on “ Funding of A ttorney Fee Awards under the Equal A ccess to Justice A ct.” 197 § 609 of that Act, an FAA action must be based upon a determination that “ safety in air commerce or air transportation and the public interest” requires the action; in practice, its order is generally occasioned by the certificate holder’s apparent violation of one or more sections of the Federal Aviation Regulations, 14 C.F.R. Rarts 1 through 199 (1981). See, e.g., Barnum v. NTSB, 595 F.2d 869 (D.C. Cir. 1979) (FAA order suspending pilot’s license for two low-flying incidents upheld). While § 609 requires the FAA to advise the certificate holder of charges against him, and to give him an opportunity to respond to them prior to taking any action to amend, suspend, or revoke his certificate, the law does not require that the FAA’s action be preceded by any sort of formal hearing, nor does the FAA provide such a hearing as matter of discretion. A certificate holder is, however, afforded an opportunity to appeal the FAA’s action to the NTSB, a procedure which, as described below, provides for such a hearing. Section 609 describes the procedures governing appeals to the NTSB from an FAA order amending, suspending, or revoking a certificate, and reads in perti­ nent part as follows: Any person whose certificate is affected by such an order of the Administrator under this section may appeal the Administrator’s order to the Board and the Board may, after notice and hearing, amend, modify, or reverse the Administrator’s order if it finds that safety in air commerce or air transportation and the public interest do not require affirmation of the Administrator’s order. In the conduct of its hearings the Board shall not be bound by findings of fact of the Administrator. The filing of an appeal with the Board shall stay the effectiveness of the Administrator’s order unless the Administrator advises the Board that an emergency exists and safety in air commerce o r air transportation requires the immedi­ ate effectiveness of his order, in which event the order shall remain effective and the Board shall finally dispose of the appeal within sixty days after being so advised by the Administrator. The person substantially affected by the Board’s order may obtain judicial review of said order under the provisions of section 1006 [49 U.S.C. § 1486], and the Administrator shall be made a party to such proceedings. Federal Aviation Act of 1958, Pub. L. No. 85-726, § 609, 72 Stat. 731, 779-80 (1958). See 49 U .S.C . § 1429(a). Formal hearings in connection with appeals from FAA orders are conducted by administrative law judges employed by the NTSB. See 49 C.F.R. § 800.23. Procedures governing these hearings are set out in 49 C.F.R. Part 821, w ith special rules applicable to proceedings under § 609 contained at §§ 821.30-821.33. Under these rules, the order of the FAA from which appeal has been taken is filed with the NTSB as a complaint; the allegations must be proven by the Administrator of the FAA in the subsequent hearing before the law judge. The Administrator has the burden of proving that the action taken against 198 the certificate holder was reasonable and in accordance with NTSB precedent. Both the certificate holder and the FAA are entitled to appeal a law judge’s initial decision to the NTSB itself; in the absence of such an appeal, however, the law judge’s initial decision becomes final. See 49 C.F.R. § 821.43. If such an appeal is taken, the NTSB reviews the law judge’s findings of fact and conclusions of law and, if it determines that either are in error, may itself make findings and issue an appropriate order, or may remand the matter with instructions. An order of the NTSB may be appealed to the Court of Appeals for the District of Columbia by “ any person disclosing a substantial interest in such order.” 49 U .S.C . § 1486(a).2 II. The Equal Access to Justice Act Section 203(a)(1) of the Equal Access to Justice Act (the Act), Pub. L. No. 96-481,94 Stat. 2321, 2325 (1980), amends Title 5 of the United States Code to provide for an award of attorney fees and other expenses to parties prevailing against an agency of the United States in certain types of administrative adjudica­ tions. The pertinent provision, to be codified as 5 U.S.C. § 504(a)(1), reads as follows: (a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circumstances make an award unjust. An “ adversary adjudication” is defined in § 504(b)(1)(C) as: an adjudication under section 554 of this title in which the position of the United States is represented by counsel or other­ wise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license. . . . Your letter concedes, as it must, that § 609 proceedings before the NTSB and its administrative law judges meet the definition of an “ adversary adjudication” under § 504(a)(1): they are conducted under 5 U.S.C. § 554, and are neither for the purpose of “ fixing a rate” nor for “ granting or renewing a license.” Notwith­ standing this, you take the position that a fee award under the Act is unavailable in § 609 proceedings, arguing that § 504(a)(1) is confined in its applicability to 2 W hile the statutory language is u n clear w ith respect to w hether th e FAA is entitled to appeal from a n N TSB order, and w hile there a p p e ar to be no ju d icia l holdings on point, we understand that th e statutory phrases “ person substantially a ffe c te d " an d “ person disclosing a substantial interest" have been interpreted b y berth th e FAA and the N TSB to lim it th e right to seek judicial review o f an N TSB order to holders o f certificates. See also H .R . R ep. N o. 2 5 5 6 ,85th C o n g ., 2d S ess. 89 (1958) (provision perm itting FAA A dm inistrator to seek ju d icia l review o m itte d from final version o f 1958 A ct). 199 those proceedings under 5 U.S.C. § 554 in which an agency both prosecutes and adjudicates an action. That is, you believe that § 504(a)(1) by its terms applies only to a proceeding in which the “ agency that conducts” it is also the “ party to the proceeding” against whom the private party must prevail. We do not agree that the authority conferred by § 504(a)(1) may be construed so narrowly, particularly where such a construction would result in exempting from the Act’s coverage a class of adversary adjudications no different in their effect on private individuals than other adjudications plainly covered by the terms of the Act. The terms of § 504(a)(1) admittedly do not speak directly to the situation in which the agency conducting the adversary adjudication is not also the agency whose position is at issue.3 We do not agree, however, that the language of the section must be read to confine its application to situations involving a single agency. The use of the article “ the” to identify the agency whose position as a party to the proceeding may or may not be found to be substantially justified does not, in our view, necessarily identify it as the same agency which conducts the adversary adjudication and employs the adjudicative officer. Finding the plain language of § 504(a)(1) not to be conclusive, we must interpret the fee-shifting provisions of § 504(a)(1) in light of other provisions of the statute, the legislative history of the Act, and Congress’ purpose in enacting it.4 The purpose of the Act, as reflected in its preamble, is “ to diminish the deterrent effect of seeking review of or defending against, [unreasonable] gov­ ernmental action” because of the expense involved. See 5 U.S.C. § 504 note. The legislative history of the A ct is replete with references to situations in which individuals are forced to expend large sums to defend themselves against un­ justified governmental action. The House Judiciary Committee noted in its report that: [f]or many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. When the cost of contesting a Govern­ ment order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it. 3 S uch situations are, to be su re, com paratively rare in th e adm inistrative context In d eed , we are aw are o f only tw o sim ilar situations to w hich the Act on its face w ould ap p ear otherw ise to be applicable, these are appeals from citations o f the S ecretary o f L abor before the O ccupational S afety and H ealth Review C om m ission under 2 9 U S .C . § 6 5 9 , and appeals from citations of the S ecretary o f L abor before the Federal M ine S afety and H ealth Review C o m m issio n , 30 U S .C § 815 However, as d iscu ssed in the text infra. C ongress was clearly cognizant in enacting this A ct o f the review procedure contained in 29 U .S .C . § 659. 4 Even if the term s o f § 504(a)(1) were le ss am biguous w ith respect to th eir applicability to adjudications involving m ore than one agency, it is a fam iliar m axim o f statutory co nstruction that a rem edial statute should be liberally co n stru e d to effect the rem edial p u rp o se for w hich it was enacted . See 3 D S an d s, Sutherland S tatutory C o nstruction § 6 0 01 (4th e d . 1974). T hus, even if th e m eaning o f a statute seem s plain on its face, “ [t]he circu m stan c es o f the enactm ent o f particular legislation m ay persuade a co u rt that C o n g ress did not intend words o f co m m on m ean in g to have th e ir literal effect.” Watt v Alaska, 451 U .S . 2 5 9 , 266 (1981), citing Church c f the Holy Trinity v. United States, 143 U S . 457 , 4 5 9 (1892). A n d , if the plain m eaning o f the statute produces “ an u n reasonable [result] ‘plainly at variance w ith th e policy o f the legislation as a w h o le’ [the S uprem e C ourt] has follow ed that purpose rath er than the literal w ords.*’ United States v American Trucking Ass'ns, 3 1 0 U .S . 5 3 4 ,5 4 3 (1940). See also Steelworkers v. Weber, 443 U .S . 193, 201 (1979); Train v Colorado Public Interest Research Group, 4 2 6 U .S . 1. 10 (1976). 200 H.R. Rep. No. 1418, 96th Cong., 2d Sess. 9 (1980) (hereafter House Report). The result in many cases is that “ the Government with its greater resources and expertise can in effect coerce compliance with its position.” Id. at 10. The fee-shifting provisions of the Act were intended not only to reduce substantially the deterrent effect on individuals of this disparity in resources, but also to “ insuref] the legitimacy and fairness of the law.” Id. The Act thus recognizes that “ the expense of correcting error on the part of the Government should not rest wholly on the party whose willingness to litigate or adjudicate has helped to define the limits of federal authority.” Id. See also S. Rep. No. 253, 96th Cong., 1st Sess. 5-6 (1979). We believe it would be inconsistent with the Act’s broad remedial purpose to carve out of the Act’s coverage any particular category of “ administrative adjudications” as that term is defined in the Act, at least absent any suggestion in the legislative history that Congress intended to do so. More importantly, we find no support in the Act or its history for your position that an individual’s eligibility for a fee award— and an agency’s liability— should be confined to situations in which the agency whose position is at issue in the adjudication also controls its conduct.5 Reference to other specific provisions of the Act reinforces our conclusion that § 504(a)(1) was not intended to apply only to proceedings conducted by one agency as a review of action taken by another agency. For example, § 504(d)(1) provides that awards under § 504(a)(1) “ may be paid by any agency over which the party prevails. . . .” (emphasis added). This language suggests that Congress at the very least contemplated that a prevailing party would be entitled to an award from an agency other than the one actually conducting the proceeding. Our conclusion that Congress did not intend to render the Act inapplicable in proceedings conducted by one agency to review actions taken by another is reinforced, if not required, by numerous references in the legislative history to the situation presented by appeals to the independent Occupational Safety and Health Review Commission from citations of the Secretary of Labor under 3 Your position appears to be prem ised on the assum ption that an agency w hich both conducts and pro secu tes an adm inistrative adjudication has the pow er to review (and potentially to reverse) the findings o f the “ adjudicative o ffic er" which trig g er the statute’s directive to pay a fee award However, as we read the term s o f § 504(a)(1) in light o f C ongress' purpose, they preclude review of these findings at the adm inistrative level. T he fee award called fo r by § 504(a)(1) is m andatory unless certain findings are m ade by the adjudicative officer o f the agency. A n d , the w ording of § 504(a)(3) contains an explicit suggestion that the decision of the adjudicative officer on these issues was intended by C ongress to be unreview able at the adm inistrative level* “ The decision of the adjudicative o fficer o f th e agency under this section shall be m ade a part o f the record containing the final decision o f the agency. " We recognize that C ongress’ failure to provide for agency review o f a fee award may result in an ag en cy ’s being un ab le to ob tain judicial review of a fee aw ard except in the context of an appeal on the m e n ts o f the underlying decision o f the adversary adjudication This is because only the private p arty m ay appeal from a fee d eterm ination u n d er § 504(a)(1) See § 504(c)(2) O n the other h and, an interpretation of the A ct to perm it an agency the last w ord on w h eth er its position in the underlying adjudication was or was not substantially justified w ould underm ine th e very p urpose which C ongress had in enacting the law T h is is underscored by the standard of judicial review of a failu re to m ake an award provided in § 5 0 4 (c)(2)’ a court m ay m odify th e fee determ ination under § 504(a)(1) only if it finds that the failure to make an award was “ an abuse of discretion ” We have no doubt that applying this stan d ard of ju d icia l review to an agency’s assessm ent of the reasonableness of its ow n conduct w ould result in few fee aw ards being made under § 504(a)( 1). T h is is not to say that no aspect o f the adjudicative officer’s fee determ ination o u g h t to be reviewable w ithin the agency, it is sim ply to say that the agency has no authority to revise the adjudicative offic er’s findings on the tw o questions w hich under the A ct are determ inative of an aw ard’s being m ade: that an ag e n cy ’s po sition was not “ substantially ju s tifie d ," and that no “ special circum stances m ake an aw ard unjust." 201 29 U .S.C. § 659 .See, e.g., 126 Cong. Rec. 27681-82 (1980) (statement of Sen. DeConcini); 126 Cong. Rec. 28653-54 (1980) (statement of Rep. Symms). In light of these references, we believe it would be unreasonable to conclude that Congress did not intend to authorize an award of fees in OSHA adjudications against the Secretary of Labor. We see no relevant basis on which to distinguish an award against the FAA in § 609 proceedings. Moreover, the potential for administrative abuse inherent in the OSHA con­ text, which Congress plainly intended to correct through the fee-shifting mecha­ nism of § 504(a)(1), is present in the § 609 situation as well. The FAA may, by unilateral action unaccompanied by full-scale procedural protections, impose a significant burden on a private person’s ability to carry on a business or earn a livelihood. The burden, once imposed, can only be lifted through that person’s willingness to resort to what may be lengthy and expensive administrative appeal and, possibly, litigation. Thus, it may be “ more practical to endure an injustice than to contest it.” House Report at 9. We can think of no reason, consistent with the purpose of the Act, why the agency which imposed the burden should escape liability for attorney fees where its position is not substantially justified. We conclude, therefore, that proceedings under § 609 were intended by Congress to be covered by the Act. Thus, in the event the FAA’s position is not found to be substantially justified by the administrative law judge presiding over the adjudication, the prevailing party is entitled to an award of fees against the FAA.6 We recognize that our conclusion with respect to the Act’s applicability to § 609 proceedings may not appear to be directly responsive to your concern that the Act not be interpreted “ to permit one agency to make a fee award against another.” In this regard, we would simply point out that the Act in this case does no more than supplement remedial authority which Congress has already con­ ferred on the NTSB to review and, if necessary, reverse FAA orders under § 609 of the Act. In addition, whether or not an award of fees will be made under § 504(a)(1) depends upon certain findings by the administrative law judge— findings which, under the terms of the Act would not in any event be administratively reviewable by the agency conducting the proceeding. See note 5, supra. The position of the FAA in § 609 proceedings is in this sense no different from the position of an agency which both conducts and prosecutes an administrative adjudication. In either case, an administrative law judge acting independently is charged with making the final administrative determination. Finally, we do not believe our conclusion with respect to the applicability of the Act in § 609 proceedings is inconsistent with the position set forth, taken in context, in the Deputy Attorney General’s letter of May 12, 1981, to the Administrative Conference of the United States. Those comments express con­ cern over a construction of the Act which would impose on an agency, having no 6 A s s tated in no te 1, supra, the issue of the F A A ’s authority and responsibility to expend its funds to pay aw ards is d iscu ssed in o u r sep arate op in io n to you of this date on “ B inding o f A ttorney F ee Awards un d er the Equal A ccess to Ju stic e A ct.” 202 prosecutorial or decisional authority in an administrative adjudication, respon­ sibility for the payment of a fee award simply because, as an intervenor, it took a position adverse to the interests of a private party. While we have not directly studied that issue, we do not see any basis for differing with the Deputy Attorney General’s position. However, we decide only that when the FAA takes an adverse action under § 609, it may be subjected to payment of an award under the Equal Access to Justice Act in a proceeding brought to review its action before the NTSB. T heodore B. O lson Assistant Attorney General Office cf Legal Counsel 203

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Authority of the Federal Financial Supervisory Agencies Under the Community Reinvestment Act The federal financial supervisory agencies lack authority under the C om m unity R einvestm ent Act o f 1977 to provide by regulation that financial institutions that do not m eet the credit needs o f their com m unities m ay be subject to adm inistrative enforcem ent actions under 12 U S.C. § 1818. D ecem ber 15, 1994 M e m o r a n d u m O p in io n f o r t h e C o m p t r o l l e r o f t h e C u r r e n c y This memorandum responds to your request for our opinion concerning whether the federal financial supervisory agencies (“the agencies”)1 have authority under the Community Reinvestment Act of 1977 (“CRA ”), 12 U.S.C. §§ 2901-2907, to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to administrative enforcement actions under 12 U.S.C. § 1818. W e conclude that the agencies lack such authority.2 I. The purpose of the CRA is “to require each appropriate Federal financial super­ visory agency to use its authority when exam ining financial institutions, to encour­ age such institutions to help meet the credit needs of the local com m unities in which they are chartered consistent with the safe and sound operation of such in­ stitutions.” 12 U.S.C. § 2901(b). To further this end, the CRA requires the agen­ cies to assess an “institution’s record of meeting the credit needs of its entire com m unity,” 12 U.S.C. § 2903(a)(1), and to “take such record into account in its evaluation of an application for a deposit facility by such institution.” 12 U.S.C. § 2903(a)(2). “[A pplication for a deposit facility” is defined to include applica­ tions for approval to open a branch, to relocate a main or branch office, or to merge with or acquire another institution. 12 U.S.C. § 2902(3). The agencies must prepare a written evaluation of each institution’s performance under the CRA, assign a rating to that performance, and disclose that rating to the public. 12 U.S.C. § 2906. The CRA also authorizes the agencies to promulgate regulations to carry out the purposes of the Act. 12 U.S.C. § 2905. 1 T he federal financial supervisory agencies are the O ffice o f the C om ptroller o f the C urrency, the Federal R eserve System , the Federal Deposir Insurance C orporation, and the O ffice o f T hrift S upervision 2 T he O ffice o f T h rift Supervision (“O T S”) has suggested in a letter to this O ffice that it has sufficient authority u n d er the H om e O w n ers' Loan Act (“H O L A ”), 12 U S.C. §§ 1461-1468, to enable it lo prom ulgate and enforce a requirem ent that regulated in stitutions help m eet the credit needs of their com m unities. W e express no opinion on the authority o f OTS or the other agencies under H O LA or any other statute besides the C R A 249 Opinions o f Ihe Office o f L egal C ounsel The agencies have proposed substantial revisions to their regulations im ple­ m enting the CRA. S ee Community Reinvestment Act Regulations, 58 Fed. Reg. 67,466-67,508 (1993). The proposed regulations provide that financial institutions “have a continuing and affirmative obligation to help m eet the credit needs o f their comm unities, including low- and m oderate-incom e areas, consistent with safe and sound operations.” S ee id. at 67,479 (§ 25.2). The proposed regulations state that an institution rated by an agency to be in “Substantial N oncom pliance” with that obligation shall be subject to enforcement actions under 12 U.S.C. § 1818, which authorizes the agencies to issue cease-and-desist orders and levy civil monetary penalties. See id. at 67,480 (§ 25.6(b)). The potential monetary penalties the in­ stitutions would face range from not more than $5,000 a day for each day during which a “first tier” violation continues to a m aximum daily penalty of $1,000,000 or one percent o f the institution’s total assets, whichever is lower, for a “third tier” violation. S ee 12 U .S.C. § 1818(i)(2). As discussed below, we do not believe that the agencies are authorized to bring actions under 12 U.S.C. § 1818 to enforce the CRA. O ur conclusion is based on the clearly expressed intent of C ongress in enacting the CRA,3 and rests on two independent rationales: (1) the CRA application evaluation procedure is the exclu­ sive enforcem ent m echanism authorized by Congress; and (2) enforcem ent under 12 U .S.C. § 1818 is unavailable because the CRA does not impose an obligation that could provide the basis for a § 1818 action or authorize the agencies to impose such an obligation. II. W e believe that Congress has plainly spoken on the question o f what enforce­ m ent tools are available to the agencies under the CRA. The CRA provides for enforcem ent only in the application context, requiring that the agencies shall take an institution’s record of meeting the credit needs of its community into account when evaluating that institution’s application for a deposit facility. Congress speci­ fied only this one enforcem ent mechanism in the CRA, and we do not believe it is perm issible for the agencies to em ploy other enforcem ent mechanisms, on the authority o f the CRA, in the absence o f some basis in the text of the statute. Agen­ cies m ay act only pursuant to delegations of power that are explicit or can fairly be 3 T h is is th e re fo re not a situ a tio n where C h ev ro n d eferen ce may be relied upon to support an agency in terpretatio n . In C h evro n U S A . In c v N a tio n a l R eso u rces D efense C ouncil, I n c , 467 U S 837 (1984), the S u p rem e C o u rt an n o u n ced a tw o-step rule f o r courts to follow w hen review ing an ag en c y ’s construction o f a s tatu te th at it ad m in isters. T h e court m ust alw ay s first exam ine “w hether C ongress has directly spoken to the p recise q u e stio n at issue. If th e intent o f C ongress is clear, that is the end o f the m atter; for the court, as well as the ag en cy , m ust g iv e effect to the u n am b ig u o u sly expressed intent o f C ongress ” Id a t 842-43. If, how ev er, “ the statu te is sile n t o r ambiguous w ith respect to the specific issue, the question for the court is w hether th e a g e n c y ’s an sw er is based on a p erm issib le co n stru ctio n o f the statute * Id. at 843 As discussed in the tex t, w e d o not believe th a t th e CRA is s ile n t or am b ig u o u s w ith resp ect to the authority being vested in the agencies. A cco rd in g ly , there is no basis fo r deferring to an agency interpretation 250 A u thority o f the Federal F inancial Supervisory A gencies U nder the C om m unity R einvestm ent A ct implied from the statutory scheme. See R ailw ay L abor E xecu tives’ A s s ’n v. N a­ tional M ediation Bd., 29 F.3d 655, 670-71 (D.C. Cir. 1994) (en banc), cert, d e ­ nied, 514 U.S. 1032(1995). The CRA contains no express directive for the agencies to use any other modes of enforcement, much less such coercive enforcem ent as cease-and-desist orders and monetary penalties, and there is no basis for inferring such authority from any provision in the statute. The statute’s only general grant of authority to the agen­ cies is the authority to promulgate im plem enting regulations. We reject the argu­ ment that a delegation of broad enforcement authority can be inferred from the statute’s delegation of authority to issue implementing regulations and the fact that the CRA does not explicitly state that the agencies may only sanction financial in­ stitutions through the application process. First of all, the authority to issue regu­ lations is limited to “carry[ing] out the purposes” of the CRA, 12 U.S.C. § 2905, and those purposes are limited to requiring the agencies to “use [their] authority when exam ining fin an cial institutions, to encourage such institutions to help meet the credit needs” of their communities, 12 U.S.C. § 2901(b) (emphasis added). More fundamentally, as the D.C. Circuit wrote recently, “ [w]ere courts to presum e a delegation of power absent an express w ithholding o f such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.” Railw ay L abor Execu­ tives' A s s ’n, 29 F.3d at 671. The legislative history o f the CRA firmly supports our conclusion that the CRA does not authorize the agencies to employ other methods of enforcement. Neither the House Conference Report nor the Senate Report makes any mention of a method of sanction other than through the application process,4 and when intro­ ducing the bill on the Senate floor, Senator Proxmire stated that “[t]he require­ ments in the bill apply only to applications otherwise required under existing law or regulations and do not provide any new authority to the bank regulatory agen­ cies.” 123 Cong. Rec. 1958 (1977). Similarly, during the floor debate on whether to delete the CRA provisions from the Housing and Community Development Act, Senator Lugar stated that “[t]he sanctions that are finally offered, even if some in­ stitution is found guilty in the process, are apparently that the institution would have some difficulty extending its facilities, no more and no less than that.” Id. at 17,633. More specifically, it would be inconsistent with the views expressed by Senator Proxmire for the agencies to rely on the CRA for authority to issue cease-anddesist orders or impose monetary penalties. Speaking as the bill’s chief sponsor, Senator Proxmire stressed the limited nature o f the authority being vested in the 4 In fact, ihe conference report describes the purposes o f the C RA in very m odest term s. “This title and other am endm ents contained in this bill are designed to en co u rag e m ore coordinated efforts betw een pnvate investm ent and federal grants and insurance in o rd er to in crease the viability o f our urban com m unities." H R C o n f R ep No. 95-634, at 76 (1977), rep rin ted in 1977 U S C C .A N 2965, 2995 251 Opinions o f th e Office o f L egal C ounsel agencies. W hen introducing the bill, Senator Proxmire stated that the CRA “is intended to establish a system of regu latory incentives to encourage banks and savings institutions to more effectively meet the credit needs of the localities they are chartered to serve.” Id. at 1958 (emphasis added). During floor debate on the legislation, he stated that “we have to do something to nudge [the banks], influence them, p ersu a d e them to invest in their com munity.” Id. at 17,630 (emphasis added). He stated during hearings on the CRA that “[w]hat are we [sic] trying to do here is not to provide for any terrible sanction. . . . All we are saying is that the job that you do in servicing community needs should be taken into consideration as one elem ent in w hether or not branching should be approved. It is a mild pro­ posal, it seems to m e.” Community C redit N eeds: H earings on S. 4 0 6 Before the Senate Comm, on Banking, Housing and U rban Affairs, 95th Cong. 323 (1977) (emphasis added).5 Finally, it is “an ‘elemental canon’ of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional rem edies.” Karahalios v. N ational F e d ’n o f Fed. Em ployees, 489 U.S. 527, 533 (1989) (quoting Transam erica M ortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)).6 “In such cases, ‘[i]n the absence o f strong indicia of contrary congressional intent, we are com pelled to conclude that Congress provided precisely the remedies it considered appropriate.’” K arahalios, 489 U.S. at 533 (quoting M iddlesex County Sew erage Auth. v. Sea Clam m ers A s s ’n, 453 U.S. 1, 15 (1981)). To move from an enforcement scheme that relies upon a system o f regulatory incentives to a scheme that entails cease-and-desist orders and potentially substantial monetary penalties is a leap that we do not believe can be justified on the basis o f the text, purpose, and legislative history of the CRA. We therefore conclude that enforcement under 12 U.S.C. § 1818 is not authorized by the CRA. 5 S e n a to r P roxm ire did state w hen introducing the co n feren ce report on the Senate floor that “the intention [o f C o n g ress] is as stated in [ 12 U S C § 2 9 0 1 (b )] thal the agencies use the full extent o f their authority, including th eir gen eral re g u lato ry authority, u n d e r [12 U .S C. § 2905], to encourage all regulated depository in stitu tio n s’ re sp o n siv en ess to com m unity n e e d s .” 123 C ong Rec. 31,887 (1977) H ow ever, at best this statem en t is am b ig u o u s, the d ire c tio n to use full regulatory authority probably was sim ply in reference to the section o f the C R A d ire c tin g the agencies to prom ulgate im plem enting regulations and not to som e other grant o f en fo rcem en t au th o rity such as 12 U S C § 1818. It is im possible to know w hat regulations S enator Proxm ire e x p ected the ag en cies to issue, alth o u g h we note th at (consistent with the phrasing in C R A ’s statem en t o f p urpose sectio n ) he used the w ord “en co u rag e” to describe w hat im pact the regulations should have on in stitu tio n s ra th e r than a w ord like “ req u ire ” M oreover, we do not believe this one statem ent, even if read bro ad ly , can su p p o rt a g e n eral grant o f enforcem ent authority to the agencies in light o f the statutory text and o th er leg islativ e history. 6 T h a t K a ra h a lio s and the cases cited th e re in involved claim ed private rights o f action does not make them inapposite. First, the u n d erly in g inquiry o f those cases and this case is the sam e' can congressional intent to en fo rce a statu to ry sch e m e in a p articu lar way be inferred from the statutory language, structure or legislative h istory? S econd, co u rts if anything have broader pow er than adm inistrative agencies to fashion appropriate relief, courts, for e x am p le, may lo o k to their broad equitable jurisdiction 252 A u th o rity o f the F ederal Financial Supervisory A gencies U nder the C om m unity R einvestm ent Act III. We reach the same conclusion when we analyze the question by focusing di­ rectly on 12 U.S.C. § 1818. Under that section, the agencies may issue a ceaseand-desist order against a financial institution that “is violating or has violated, or . . . is about to violate, a law, rule, or regulation,” 12 U.S.C. § 1818 (b)(1), and they may impose civil monetary penalties against an institution that violates “any law or regulation” or any cease-and-desist order, 12 U.S.C. § 1818(i)(2). It might be argued that such sanctions may be imposed upon an institution that receives a “substantial noncompliance” CRA rating because that would be a violation of the CRA or the proposed regulations. As discussed below, we reject that argument. By its terms, the CRA provides only that the agencies must evaluate an institu­ tion’s record of meeting the credit needs of the community, that the agencies must take that record into account when considering an institution’s application for per­ mission to merge or expand, and that the agencies must prepare a written record of their evaluations for public dissemination. Nowhere does the CRA expressly im­ pose any obligation on financial institutions themselves. The statute’s references to financial institutions are couched in precatory rather than mandatory terms. In the “statement of purpose” provision of the CRA, Congress stated that “ [i]t is the purpose of this chapter to require each appropriate Federal financial supervi­ sory agency to use its authority . . . to encourage such institutions to help meet the credit needs o f [their] communities.” 12 U.S.C. § 2901(b) (emphasis added). The CRA does not instruct the agencies to require institutions to meet community credit needs. Moreover, although the CRA directs the agencies to take an institu­ tion’s record of meeting credit needs into account when evaluating the institution’s application for a deposit facility, 12 U.S.C. § 2903, it does not require the agencies to deny applications from institutions with questionable records.7 Nor are any obligations, violation o f which is sanctionable under § 1818, im­ posed by the following statements in the “Congressional findings” section of the 7 The case law recognizes thal w hile the agencies are authorized to refuse to approve applications from financial institutions that do not m eet the credit needs o f their com m unities, they are not required to do so. In one case that involved a challenge to an ag en cy 's approval o f an institu tio n ’s application to open a branch office, the court refused to invalidate the approval on the grounds that the agency and the requesting institu ­ tion had allegedly failed to com ply w ith the requirem ents o f the C R A C orning Sav. & Loan A s s 'n v. F ed ­ eral H om e Loan B ank Bd., 571 F Supp 396 (E .D ^ rk 1983), a ffd , 736 F 2d 479 (8th C ir 1984). T he court stated that “ [t]he C R A itself does not provide for any sanctions for an unsatisfactory record, nor does it even define w hat an unsatisfactory record w ould be The C R A m erely requires that the Board assess an in stitutio n ’s co m m u n ity credit record and consider lhat record w hen evaluating branch a p plications.” 571 F Supp. at 403 S e e also N a tio n a l State B a n k v Long, 630 F 2d 981, 984 (3d C ir. 1980) (in deciding there was no federal law ex p licitly prohibiting redlining, so that a state anti-redlining statute was not preem pted, the court staled that under the CRA , “the C o m p tro ller m ay, but need not, deny an application for a deposit facil­ ity lo a national bank that fails to m eet the needs o f us local co m m unity” ); H icks v Resolution Trust C orp., 970 F.2d 378, 382 (7th Cir. 1992) (in concluding lhat a fired em ployee could not state a claim for retaliatory discharge because the C R A did not constitute a clearly m andated public policy, the court stated that the Act does not provide for crim inal sanctions o r private causes o f action; agencies m ay “at m ost” consider an in ­ stitu tio n 's record w hen evaluating an application) 253 O pinions o f Ihe O ffic e o f L egal C ounsel CRA: that ”[t]he Congress finds th a t. . . regulated financial institutions have con­ tinuing and affirm ative obligation to help meet the credit needs of the local com­ m unities in which they are chartered,” 12 U.S.C. § 2901(a)(3), and that “[t]he C ongress finds that . . . regulated financial institutions are required by law to dem ­ onstrate that their deposit facilities serve the convenience and needs of the commu­ nities in which they are chartered to do business,” 12 U.S.C. § 2901(a)(1). These findings are an indicator o f congressional intent and may be looked to by the agen­ cies in form ulating their regulations to im plem ent the CRA. However, they are not “operative provisions” o f the statute and thus cannot by themselves impose obliga­ tions on financial institutions or override operative provisions that indicate that Congress did not intend to impose an obligation violation o f which is sanctionable under § 1818. S ee A ssociation o f Am. R.R. v. C ostle, 562 F.2d 1310, 1316 (D.C. Cir. 1977) (“A pream ble no doubt contributes to a general understanding of a stat­ ute, but it is not an operative part of the statute and it does not enlarge or confer powers on adm inistrative agencies or officers. W here the enacting or operative parts o f a statute are unambiguous, the meaning o f the statute cannot be controlled by language in the pream ble. The operative provisions o f statutes are those which prescribe rights and duties and otherwise declare the legislative w ill.”). See also C ouncil o f H aw aii H otels v. A gsalud, 594 F. Supp. 449, 453 (D. Haw. 1984) (in determ ining whether Hawaii legislature intended to regulate collectively bar­ gained health care plans, court rejected defendants’ argument that “findings and purpose” section o f statute authorized state regulation of the plans when an opera­ tive provision o f the statute made it clear that the plans were not subject to regula­ tion). Finally, we do not believe that the agencies’ authority under the CRA to issue im plem enting regulations includes th e authority to impose an obligation, enforce­ able under § 1818, to meet community credit needs that was not imposed by Con­ gress. The agencies’ rulemaking authority is limited to “carrying] out the purposes” o f the CRA, 12 U.S.C. § 2905, and those purposes are limited to re­ quiring the agencies to use their authority to “encourage” financial institutions to help m eet com m unity credit needs, 12 U.S.C. § 2901(b). The authority to “encourage” does not include the authority to impose an obligation enforceable by cease-and-desist orders and money penalties. See N ew York v. H eckler , 719 F.2d 1191, 1196 (2nd Cir. 1983) (holding that statutory language directing entities re­ ceiving federal funding “to encourage family participation” in m inors’ receipt of contraceptive services did not authorize HHS to promulgate regulations requiring parental notification following a m inor’s purchase of contraception). W e em phasize that our conclusion that § 1818 sanctions are not available is not intended to suggest that the provisions of the proposed CRA regulations re­ garding an obligation to help meet the credit needs of the community are invalid for other purposes under the CRA or any other statute, such as to assist the exercise of agency authority during examinations and in the application process. Nor is it 254 A uthority o f the F ederal F inancial Supervisory A gencies U nder the C om m unity R einvestm ent A ct intended to suggest that other provisions of the proposed CRA regulations impos­ ing requirements on financial institutions, such as data collection and reporting requirements, are not authorized by the grant of authority to promulgate regula­ tions. Moreover, we express no opinion on the availability of § 1818 sanctions for violations of a law, rule, or regulation in any context other than the CRA. IV. The purpose of the CRA is to require the federal financial supervisory agencies, in the execution of their examination function, to encourage financial institutions to meet community credit needs. The CRA requires that the agencies assess financial institutions’ records in this regard and consider their records when evaluating their applications for deposit facilities. In connection with this requirement, the agen­ cies may promulgate regulations placing reasonable requirements on financial in­ stitutions to enable the agencies to assess their performance. W e conclude, however, that the agencies lack authority under the CRA to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to enforcement actions under 12 U.S.C. § 1818. W ALTER D ELLINGER A ssistan t A ttorn ey G en eral Office o f L egal C ounsel 255 * U .S . QOVERJWB1T PRINTING OFFICE: 1 9 9 9 -4 4 7 -3 9 0