MEMORANDA AND OPINIONS |
Overview of Document |
AUTHORITY OF THE FEDERAL FINANCIAL SUPERVISORY AGENCIES UNDER
THE COMMUNITY REINVESTMENT ACT
cra
|
The federal financial supervisory agencies
lack authority under the Community Reinvestment Act of 1977 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. December 15, 1994 |
WHETHER URUGUAY ROUND AGREEMENTS REQUIRED RATIFICATION AS A
TREATY
gatt
|
The Uruguay Round Agreements concluded
under the auspices of the General Agreement on Tariffs and Trade did not require
ratification by the Senate as a treaty, but could constitutionally be executed by the
President and approved and implemented by Act of Congress. November 22, 1994 |
CONGRESSIONAL TESTIMONY OF AN ASSISTANT UNITED STATES
ATTORNEY ON BEHALF OF THE NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS
naausa
|
The Department of Justice correctly takes the position
that it may not prohibit an Assistant United States Attorney ("AUSA") from
testifying before Congress in his or her personal capacity on behalf of the National
Association of Assistant United States Attorneys. The
Department of Justice rules regulating such testimony are consistent with the First
Amendment. Those rules require that the AUSA make it clear that he or she is not speaking
for the Department, avoid using or permitting the use of his or her official title or
position in connection with the testimony (except as one of several biographical details),
and comply with rules on the protection of confidential information.
November 7, 1994 |
APPLICATION OF 18 U.S.C. § 205 TO COMMUNICATIONS BETWEEN THE
NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS AND THE DEPARTMENT OF JUSTICE
naausa2 |
The restrictions of 18 U.S.C. § 205 preclude current
federal employees from representing the National Association of Assistant United States
Attorneys ("NAAUSA") before the Department of Justice regarding compensation,
workplace issues, and other issues that focus on the interests of Assistant United States
Attorneys ("AUSAs") or another discrete and identifiable class of persons or
entities. Section 205 does not preclude several other
kinds of communications between the Department and NAAUSA or similar associations. The
Department is not precluded from dealing with individual AUSAs or groups of AUSAs in their
official capacities on matters affecting AUSAs, even if those AUSAs are coincidentally
members of NAAUSA. Nor does section 205 place any restrictions on representatives who are
not current federal employees, such as NAAUSA's executive director or former AUSAs no
longer employed by the government. Finally, discussions of broad policy directed towards a
large and diverse group of persons would be permissible under the statute.
November 7, 1994 |
PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL
STATUTES
nonexcut |
This memorandum discusses the President's
constitutional authority to decline to execute unconstitutional statutes. November 2, 1994 |
THE TWENTY-SECOND
DECENNIAL CENSUS census224a
|
Neither the Enumeration Clause of the
Constitution nor the Census Act precludes the Bureau of the Census
from statistically adjusting "headcounts" in the decennial census
for the year 2000 or conducting the non-response follow-up on a
sample basis. The provision in the Census Act prohibiting
sampling for purposes of apportionment of the House of
Representatives does not preclude reliance upon statistical
adjustments that would improve the accuracy of "headcount" data.
October 7,
1994 |
AVAILABILITY OF MONEY DAMAGES UNDER THE RELIGIOUS FREEDOM
RESTORATION ACT
damages
|
Section 3(c) of the Religious Freedom
Restoration Act, which makes available "appropriate relief" in judicial
proceedings against federal and state government entities, does not waive or abrogate the
sovereign immunity of federal and state governments against the award of money
damages. October 7, 1994 |
DEPLOYMENT OF UNITED STATES ARMED FORCES INTO HAITI
haiti
|
The President possessed the legal authority to deploy
United States Armed Forces into Haiti. The planned
deployment accorded with the sense of Congress, satisfied the requirements of the War
Powers Resolution, and was not a "war" with the meaning of the Constitution.
September 27, 1994 |
MUTUAL CONSENT PROVISIONS IN THE GUAM COMMONWEALTH LEGISLATION
07281994_mutconst.pdf |
Sections of the Guam Commonwealth Bill requiring
the mutual consent of the Government of the United States and the Government of Guam raise
serious constitutional questions and are legally unenforceable. July 28, 1994 |
CONSTITUTIONALITY OF LEGISLATION EXTENDING THE TERMS OF
OFFICE OF UNITED STATES PAROLE COMMISSIONERS
paroleco
|
Legislation extending the term of an
officer who serves at will does not violate the Appointments Clause of the United States
Constitution. Because United States Parole Commissioners may be removed by the President
at will, Pub. L. 101-650, § 316, which extends the terms of office of certain Parole
Commissioners, does not violate the Appointments Clause. July 15, 1994 |
UNITED STATES ASSISTANCE TO COUNTRIES THAT SHOOT DOWN CIVIL
AIRCRAFT INVOLVED IN DRUG TRAFFICKING
shootdow
|
The Aircraft Sabotage Act of 1984 applies to the police
and military personnel of foreign governments. In particular, the Act applies to the use
of deadly force by such foreign governmental actors against civil aircraft in flight that
are suspected of transporting illegal drugs. There is accordingly a substantial risk that
United States Government officers and employees who provide flight tracking information or
certain other forms of assistance to the aerial interdiction programs of foreign
governments that have destroyed such aircraft, or that have announced an intent to do so,
would be aiding and abetting conduct that violated the Act. July 14, 1994 |
REVIEW OF 1988 OPINION CONCERNING THE APPLICABILITY OF
SECTION 504 OF THE REHABILITATION ACT TO INDIVIDUALS INFECTED WITH HIV
hiv.fin
|
The 1988 Office of Legal Counsel opinion accurately
describes the duties imposed by section 504 of the Rehabilitation Act with respect to
individuals infected with the Human Immunodeficiency Virus. The subsequent passage of the
Americans with Disabilities Act did not alter the analysis of cases arising under the
Rehabilitation Act, although an amendment to section 504 now requires reference to
standards set forth in the ADA. Application of the standards set forth under section 504
in any particular case requires consideration of current scientific understanding of HIV
infection. Advances in the scientific understanding of HIV infection since 1988 may
undermine some of the discussion in the 1988 opinion about the application of these
standards to individual cases. July 8, 1994 |
APPLICABILITY OF 18
U.S.C. § 208 TO PROPOSED APPOINTMENT OF GOVERNMENT OFFICIAL TO THE
BOARD OF CONNIE LEE
conniemem220a
|
An executive branch officer or employee
appointed to the Board of Directors of Connie Lee would be a
"director" within the meaning of 18 U.S.C. § 208(a) and therefore
would be disqualified from participating "personnally and
substantially" in any "particular matter" implicating the financial
interests of Connie Lee unless the conditions of subsection 208(b)
are satisfied.
June 22,
1994 |
PRE-JUDGMENT INTEREST UNDER THE BACK PAY ACT FOR REFUNDS OF
FEDERAL INSURANCE CONTRIBUTIONS ACT OVERPAYMENTS
backpay
|
The Back Pay Act's authorization of
prejudgment interest does not apply to the return of a Federal Insurance Contributions Act
tax overpayment. Even if the Back Pay Act did apply to such returns, an agency's specific
exemption from liability under FICA would override the provisions of the Back Pay Act. May
31, 1994 |
DEPUTIZATION OF MEMBERS OF CONGRESS AS SPECIAL DEPUTY U.S.
MARSHALS
depmar
|
The deputization of members of Congress as
special Deputy U.S. Marshals is inconsistent with separation of powers principles and with
the statutory language and historical practice governing special deputation. May 25, 1994 |
RECONSIDERATION OF APPLICABILITY OF THE DAVIS-BACON ACT TO
THE VETERAN ADMINISTRATION'S LEASE OF MEDICAL FACILITIES
davbac
|
Contrary to the view expressed in an
earlier Opinion of the Office of Legal Counsel, the plain language of the Davis-Bacon Act
does not bar its application to a lease contract on the ground that such contracts are per
se not contracts for construction. The applicability of the Davis-Bacon Act to any
specific lease contract can be determined only by considering the details of the
particular contract. May 23, 1994 |
AUTHORITY OF DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT TO
INITIATE ENFORCEMENT ACTIONS UNDER THE FAIR HOUSING ACT AGAINST OTHER EXECUTIVE BRANCH
AGENCIES fha
|
Because substantial separation of powers
concerns would be raised by construing the Fair Housing Act ("the Act") to
authorize the Department of Housing and Urban Development ("HUD") to initiate
enforcement proceedings against other executive branch agencies, the Act cannot be so
construed unless it contains an express statement that Congress intended HUD to have such
authority. Because the Act does not contain such an express statement, it does not grant
HUD this authority. There is no basis for
construing the Act so that the HUD investigative and administrative process under the Act
may be deemed applicable, but the judicial enforcement procedures deemed inapplicable.
May 17, 1994 |
ELIGIBILITY OF INVOLUNTARY WARTIME RELOCATEES TO JAPAN FOR
REDRESS UNDER THE CIVIL LIBERTIES ACT OF 1988
14815.mem
|
The proposed Department of Justice change in its
interpretation of the Civil Liberties Act of 1988 to extend redress under the Act to
minors who accompanied their parents to Japan during World War II and to adults who are
able to show that their relocation to Japan during that period was involuntary is a
reasonable and permissible interpretation of the statute. Although an agency
interpretation that has been modified or reversed is likely to receive less deference by a
reviewing court than a consistent and contemporaneous interpretation, the fact of
modification does not preclude the court from granting deference to the new
interpretation. May 10, 1994 |
EQUITABLE TRANSFERS OF FORFEITED MONIES OR PROPERTY
asset2 |
When the federal government makes an equitable transfer
of forfeited monies or property to a state or local law enforcement agency, that transfer
is more appropriately characterized as a conditional gift to the agency rather than as a
formal contract between the federal government and the agency. If the state or local agency fails to use the transferred property for law
enforcement purposes, the federal government may be able to pursue restitution of the
property.
April 19, 1994 |
MARAD RULEMAKING AUTHORITY UNDER CARGO PREFERENCE LAWS
cpaop |
The U.S. Maritime Administration has the
authority to promulgate rules establishing mandatory uniform charter terms for the
carriage of cargoes subject to the Cargo Preference Act of 1954. April 19, 1994 |
AUTHORITY OF USDA TO AWARD MONETARY RELIEF FOR DISCRIMINATION
usda
|
The Department of Agriculture has authority to award
monetary relief, attorneys' fees, and costs to a person who has been discriminated against
in a program conducted by USDA if a court could award such relief in an action by the
aggrieved person. That question is controlled by whether the anti-discrimination
provisions of the applicable civil rights statute apply to federal agencies, and if so,
whether the statute waives the sovereign immunity of the United States against imposition
of such relief. The anti-discrimination provisions of
Title VI of the Civil Rights Act of 1964 do not apply to federal agencies. Some
anti-discrimination provisions in each of the other civil rights statutes addressed in the
opinion do apply to federal agencies, but only one of the statutes, the Equal Credit
Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing
imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not
waive immunity against monetary relief. Attorneys' fees and costs may be awarded pursuant
to the waiver of immunity contained in the Equal Access to Justice Act.
April 18, 1994 |
SIXTH AMENDMENT IMPLICATIONS OF LAW ENFORCEMENT CONTACT WITH
CORPORATE EXECUTIVES
garland |
Law enforcement contacts with high-ranking executives
of a corporation after criminal charges have been filed against the corporation violate
the corporation's Sixth Amendment right to counsel. No
Sixth Amendment violation occurs when law enforcement contacts with high-ranking
executives occur while civil penalty proceedings are in progress against the corporation.
April 15, 1994 |
WHETHER MEMBERS OF THE SENTENCING COMMISSION WHO WERE
APPOINTED PRIOR TO THE ENACTMENT OF A HOLDOVER STATUTE MAY EXERCISE HOLDOVER RIGHTS
PURSUANT TO THE STATUTE
sentcomm
|
Statutory provisions that allow members of
the United States Sentencing Commission to hold over in office after their terms have
expired apply to incumbent members who were appointed prior to the enactment of the
holdover statute. Commissioners who were appointed prior
to the enactment of the holdover statute may constitutionally exercise such holdover
rights without violating the Appointments Clause.
April 5, 1994 |
APPLICATION OF THE BRADY ACT'S CRIMINAL PENALTIES TO STATE OR
LOCAL LAW ENFORCEMENT OFFICERS
brady |
The criminal penalties contained in the
Brady Handgun Violence Protection Act do not apply to state or local law enforcement
officers in the performance of their duties under the Brady Act. Accordingly, the United
States lacks the authority to prosecute state or local officials for violations of the
Brady Act. March 16, 1994 |
OCC MORTGAGE LENDING TESTING PROGRAM
occ
|
Individuals who serve as "testers" in a
proposed Office of the Comptroller of the Currency program designed to identify
discriminatory lending practices by national banks would not violate any federal criminal
laws if, as part of the program, they provide false information to targeted banks.
March 8, 1994 |
APPLICABILITY OF EMOLUMENTS CLAUSE TO EMPLOYMENT OF
GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES
emolnasa
|
The Emoluments Clause does not apply in
the cases of government employees offered faculty employment by a foreign public
university where it can be shown that the university acts independently of the foreign
State when making faculty employment decisions. March
1, 1994 |
WHETHER THE OFFICE OF THE VICE PRESIDENT IS AN
"AGENCY" FOR PURPOSES OF THE FREEDOM OF INFORMATION ACT
foiavp |
The Office of the Vice President is not an
"agency" for purposes of the Freedom of Information Act. February 14, 1994 |
DENIAL OF PUBLIC ACCESS TO TRIAL EXHIBITS IN CHILD
PORNOGRAPHY PROSECUTIONS
kidporn |
Courts may deny public access to exhibits
entered into evidence in child pornography prosecutions. February 10, 1994 |
RESPONSIBILITY FOR ISSUING REVISED HATCH ACT REGULATIONS
hatch
|
The Office of Personnel Management, rather than the
Office of Special Counsel, has the authority to promulgate regulations delimiting the
scope and nature of permissible activities under the Hatch Act Reform Amendments of
1993. February 2, 1994 |