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Memoranda & Opinions
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Overview of Document
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APPLICATION OF 28 U.S.C. § 458 TO PRESIDENTIAL
APPOINTMENTS OF FEDERAL JUDGES
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Section 458 of title 28 does not apply to executive branche's
ability to obligate appropriated funds conditional upon presidential
appointments of judges to the federal judiciary.
December 18, 1995 |
LEGISLATION DENYING CITIZENSHIP AT BIRTH
TO CERTAIN CHILDREN BORN IN THE UNITED STATES
deny.tes.31 |
A bill that would deny citizenship to children born in the United
States to certain classes of alien parents is unconstitutional
on its face.
A constitutional amendment to restrict birthright citizenship,
although not technically unlawful, would flatly contradict the
Nation's constitutional history and constitutional traditions.
December 13, 1995 |
EFFECT OF APPROPRIATIONS FOR OTHER
AGENCIES AND BRANCHES ON THE AUTHORITY TO CONTINUE DEPARTMENT
OF JUSTICE FUNCTIONS DURING THE LAPSE IN THE DEPARTMENT'S APPROPRIATIONS
lapsed.upd
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Where Congress has
provided appropriations for the legislative branch, the Department
of Justice may continue to provide testimony at hearings and perform
other services related to funded functions of the legislative
branch during a lapse in funding for the Department, if the participation
of the Department is necessary for the hearing or other funded
function to be effective.
Similarly, those functions of the Department of Justice that
are necessary to the effective execution of functions by an
agency or department of government that has current fiscal year
appropriations, such that a suspension of the Department's functions
during a lapse in its own appropriations would prevent or significantly
damage the execution of those funded functions, may continue
during the Department's funding lapse.
December 13, 1995
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PROPOSED DEPLOYMENT OF UNITED STATES
ARMED FORCES INTO BOSNIA
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The President, acting
without specific statutory authorization, may lawfully introduce
United States ground troops into Bosnia in order to assist North
Atlantic Treaty Organization to ensure compliance with a peace
agreement.
November 30, 1995
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PRESIDENTIAL DISCRETION TO DELAY MAKING
DETERMINATIONS UNDER THE CHEMICAL AND BIOLOGICAL WEAPONS CONTROL
AND WARFARE ELIMINATION ACT OF 1991
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The President is required to
make a determination that would trigger sanctions under the Chemical
and Biological Weapons Control and Warfare Elimination Act of
1991 if he is presented with sufficient evidence to compel the
determination.
The President may delay making a determination
that would trigger sanctions under the Act when the delay is
necessary to protect intelligence sources or methods used in
counter-proliferation activities.
The President may delay making a determination
that would trigger sanctions under the Act when no reasonable
alternative means exists to protect the life of an intelligence
source.
November 16, 1995
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PARTICIPATION IN CONGRESSIONAL HEARINGS
DURING AN APPROPRIATIONS LAPSE
lapsed.hg8
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Under the Antideficiency Act,
an officer or employee of the Department of Justice may participate
in a congressional hearing during a lapse in appropriations for
the Department if he or she is a Senate-confirmed officer, if
appropriated funds are available for his or her participation,
if he or she is subpoenaed, or if there exists other express or
necessarily implied authorization to participate in the hearing.
November 16, 1995
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THE SECRETARY OF THE TREASURY'S AUTHORITY
WITH RESPECT TO THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND
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5 U.S.C. § 8348 empowers the
Secretary of the Treasury to suspend the investment of additional
contributions to the Civil Service Retirement and Disability Fund
and redeem prior to maturity CSRDF investment assets in order
to avoid exceeding the statutory debt limit.
In exercising his CSRDF redemption authority,
the Secretary of the Treasury may, during a "debt issuance suspension
period," redeem CSRDF investment assets based on the total amount
of civil service retirement and disability benefits authorized
to be paid during the period.
The Secretary of the Treasury has discretion
to designate the length of a debt issuance suspension period
based on factors, identified by the Secretary, that are reasonably
relevant to his determination.
The suspension during a debt limit crisis
of CSRDF investment and the redemption of CSRDF investment assets
would not cause a violation of the public debt limit.
November 10, 1995
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AUTHORIZATION OF IMMIGRATION EMERGENCY
FUND REIMBURSEMENTS
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The continuing resolution enacted
on September 30, 1995, does not limit or suspend the authority
that would otherwise exist for the obligation or expenditure of
an Immigration Emergency Fund reimbursement pursuant to § 404(b)
of the Immigration and Nationality Act.
The Immigration Emergency Fund may be used
to reimburse the State of Florida for its increase in social
service and health expenses deriving from the influx of Cuban
immigrants resulting from a Presidential decision.
November 8, 1995
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REASSIGNMENT OF ASSISTANT SECRETARY OF
LABOR WITHOUT SENATE RECONFIRMATION
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Where the Secretary of Labor exercises statutory power to
reassign the duties of a lawfully confirmed Assistant Secretary
of Labor whose duties are not otherwise assigned by statute, reconfirmation
of the Assistant Secretary is not legally required.
November 2, 1995
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CONSTITUTIONALITY OF AWARDING HISTORIC
PRESERVATION GRANTS TO RELIGIOUS PROPERTIES
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A court applying current precedent is most likely to conclude
that the direct award of historic preservation grants to churches
and other pervasivley sectarian institutions violates the Establishment
Clause of the Constitution.
October 31, 1995
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THE FOOD AND DRUG ADMINISTRATION'S
DISCRETION TO APPROVE METHODS OF DETECTION AND TO DEFINE THE TERM
"NO RESIDUE" PURSUANT TO THE FEDERAL FOOD, DRUG, AND COSMETIC
ACT
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The Food and Drug Administration has the discretionary authority
under the DES proviso to the Delaney Clause of the Federal Food,
Drug, and Cosmetic Act to prohibit the use of an additive in animal
feed if the FDA concludes that there is no method that can "reliably
measure and confirm" whether the additive contains residues of
carcinogenic concern at or above the "no residue" level.
Where the FDA has already approved a method for detecting
the presence of residues of carcinogenic concern, the DES proviso
does not require the FDA to revise its regulations to adopt
the "best available" such method.
The FDA lacks the discretion to determine that an edible
tissue contains "no residue" when a method of detection reveals
the presence of residues of carcinogenic concern that is below
the "no significant risk" level.
October 13, 1995
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SCOPE OF TREASURY DEPARTMENT PURCHASE
RIGHTS WITH RESPECT TO FINANCING INITIATIVES OF THE U.S. POSTAL
SERVICE
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If the Treasury
Department has declared its election to purchase a proposed U.S.
Postal Service bond issue pursuant to 39 U.S.C. § 2006(a) prior
to the proposed date of issuance and is pursuing good-faith negotiations
towards such purchase as of such date, the USPS is not free to
proceed with issuance of the bonds to other purchasers solely
because Treasury has not completed purchase of the bonds within
a 15-day period following USPS' initial notice of the proposed
issue.
If, in the above circumstances, Treasury
and the USPS are unable to negotiate mutually agreeable terms
within a commercially reasonable period of time following USPS'
proposed date for the issuance of its bonds, then the USPS may
proceed with the issuance of such bonds to other purchasers.
Treasury is not authorized to dictate or
control the terms of the USPS offering, but it must be afforded
a reasonable opportunity to reach mutually agreeable terms with
the USPS when the original terms proposed by the USPS are unacceptable.
That reasonable opportunity is not rigidly limited by the 15-day
period for declaring an election to purchase.
October 10, 1995
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AUTHORITY TO EMPLOY THE SERVICES OF
WHITE HOUSE OFFICE EMPLOYEES DURING AN APPROPRIATIONS LAPSE
lapsed.wh.22 |
The Antideficiency Act permits the White House Office
to employ personnel during an appropriations lapse for functions
that are excepted from the Act's general prohibition: functions
relating to emergencies involving an imminent threat to the safety
of human life or protection of prperty; other functions as to
which express statutory authority to incur obligations in advance
of appropriations has been granted; those functions for which
such authirty arises by necessary implication; and certain functions
necessary to the discharge of the President's constitutional duties
and powers. Suche personnel may not be paid, however, until appropriations
are enacted.
The President may use his authority under 3 U.S.C. § 105 to create
and fill nonsalaried positions in the White House Office during
an appropriations lapse, but nonsalaried employees cannot receive
an obligation of payment for the services they perform in that
capacity.
White House Office employees appointed under 3 U.S.C. § 105 may waive
their compensation, and if they do so, their services may be
accepted during an appropriations lapse..
September 13, 1995
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CONSTITUTIONAL LIMITATIONS ON FEDERAL
GOVERNMENT PARTICIPATION IN BINDING ARBITRATION
arbitn.fin
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The Appointments
Clause does not prohibit the federal government from submitting
to binding arbitration.
Nor does any other constitutional provision or doctrine impose
a general prohibition against the federal government entering
into binding arbitration, although the Constitution does impose
substantial limits on the authority of the federal government
to enter into binding arbitration in specific cases.
September 7, 1995
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GOVERNMENT OPERATIONS IN THE EVENT OF A LAPSE IN APPROPRIATIONS
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A government agency may employ personal services
in advance of appropriations only when there is a reasonable and articulable connection
between the function to be performed and the safety of human life or the protection of
property, and when there is some reasonable likelihood that either or both would be
compromised in some significant degree by the delay in the performance of
the function in question.
August 16, 1995
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LEGAL GUIDANCE ON THE IMPLICATIONS
OF THE SUPREME COURT'S DECISION IN ADARAND CONSTRUCTORS, INC.
v. PEÑA
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This memorandum sets forth preliminary
legal guidance on the implications of the Supreme Court's decision
in Adarand Constructors, Inc. v. Peña, which held that "strict
scrutiny" is the standard that governs judicial review of the
constitutionality of federal affirmative action programs that
use racial and ethnic criteria as a basis for decision-making
The memorandum is not intended to serve as a definitive statement
of what Adarand means for any particular affirmative action program;
rather, it is intended to provide a general overview of the Court's
decision and the application of the strict scrutiny standard in
the context of affirmative action.
June 28, 1995
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EFFECTS OF A PRESIDENTIAL PARDON
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A full and unconditional presidential pardon precludes the
exercise of the authority to deport a convicted alien under 8
U.S.C. § 1251(a)(2)
A full and unconditional presidential pardon removes a state direarm
disability arising as a result of a conviction of a federal
crime.
A full and unconditional presidential pardon extends to the remission
of restitution ordered by a court pursuant to 18 U.S.C. § 355-1(b)-(c)
as a "sanction" authorized in addition to imprisonment, probation,
or a fine until such times as the restitution award is paid
to the victim.
June 19, 1995
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WAIVER OF CLAIMS FOR DAMAGES ARISING
OUT OF COOPERATIVE SPACE ACTIVITY
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Congress has not authorized the
National Aeronautics and Space Administration to waive subrogated
claims on behalf of federal agencies against certain foreign States
for damages arising out of cooperative space activity.
An amendment to the Space Act would be necessary to grant NASA
the authority to waive subrogated claims on behalf of federal
agencies against foreign States for damages arising out of cooperative
space activity.
The President may waive claims, including
subrogated claims, against foreign governments, in exchange
for a reciprocal waiver from the foreign government. The President
may delegate this authority to an agency head.
The weight of authority supports the President's
power to waive state claims against a foreign government.
June 7, 1995
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FIDUCIARY OBLIGATIONS REGARDING BUREAU
OF PRISONS COMMISSARY FUND
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31 U.S.C. § 1321 and its accompanying
Department of Justice regulations do not impose a fiduciary obligation
on the Bureau of Prisons to expend Commissary Fund moneys only
in accordance with the terms of the Commissary Fund trust.
May 22, 1995
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BILL TO RELOCATE UNITED STATES EMBASSY
FROM TEL AVIV TO JERUSALEM
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The provisions of a bill that render
the executive branch's ability to obligate appropriated funds
conditional upon the construction and opening in Jerusalem of
the United States Embassy to Israel invade exclusive presidential
authorities in the filed of foreign affairs and are unconstitutional.
May 16, 1995
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AUTHORITY OF THE SECRETARY OF THE TREASURY
TO ORDER THE CLOSING OF CERTAIN STREETS LOCATED ALONG THE PERIMETER
OF THE WHITE HOUSE
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18 U.S.C. § 3056
grants the Secretary of the Treasury broad authority to take actions
that are necessary and proper to protect the President, including
the authority to order the closing of certain streets located
along the perimeter of the White House.
May 12, 1995
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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
603
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Civilian employees and
officers in the executive branch would not violate 18 U.S.C. §
603, as amended by the Hatch Act Reform Amendments of 1993, by
making contributions to a President's authorized reelection campaign
committee, so long as such contributions were not made in a manner
that would violate the specific prohibitions of 5 U.S.C. §§ 7324(a)(1)-(4).
May 5, 1995
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IMPERMISSIBILITY OF DEPUTIZING THE
HOUSE SERGEANT AT ARMS AS A SPECIAL DEPUTY U.S. MARSHAL
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Appointment of the
House Sergeant at Arms as a Special Deputy U.S. Marshal would
entail an overlapping of congressional and executive accountability
that is incompatible with separation of powers requirements.
Appointment of the House Sergeant at Arms
as a Special Deputy U.S. Marshal would impermissibly involve
the institution of Congress in executive branch law enforcement.
April 10, 1995
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EXECUTIVE ORDER NO. 12954, ENTITLED
"ENSURING THE ECONOMICAL AND EFFICIENT ADMINISTRATION AND COMPLETION
OF FEDERAL GOVERNMENT CONTRACTS"
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The Federal Property
and Administrative Services Act vests the President with authority
to issue Executive Order No. 12954 in light of his finding that
it will promote economy and efficiency in government procurement.
March 9, 1995
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USE OF THE EXCHANGE STABILIZATION FUND
TO PROVIDE LOANS AND CREDITS TO MEXICO
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As part of an international financial
support package for Mexico, the President and the Treasury Secretary
have the authority under section 10(a) of the Gold Reserve Act
of 1934, as amended, to use the Treasury Department's Exchange
Stabilization Fund to provide loans and credits to Mexico in the
form of (i) short-term currency "swaps" through which Mexico will
borrow U.S. dollars in exchange for Mexican pesos for 90 days;
(ii) medium-term currency swaps through which Mexico will borrow
U.S. Dollars for up to five years; and (iii) guaranties through
which the United States will back-up Mexico's obligations on government
securities for up to ten years.
March 2, 1995
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PERMISSIBILITY OF THE ADMINISTRATION
AND USE OF THE FEDERAL PAYROLL ALLOCATION SYSTEM BY EXECUTIVE
BRANCH EMPLOYEES FOR CONTRIBUTIONS TO POLITICAL ACTION COMMITTEES
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Federal employees
who would offer the use of, or administer, the federal salary-allocation
system for allotments to political action committees, would not,
without more, violate 18 U.S.C. §§ 602 and 607, or the civil provisions
of the Hatch Act Reform Amendments of 1993.
The Hatch Act Reform Amendments of 1993 would prohibit certain
high-level and Executive Office employees identified in 5 U.S.C.
§ 7324(b), the duties and responsibilities of whose positions
continue outside normal duty hours and while away from the normal
duty post, from using the salary-allocation system to make contributions
to political action committees.
The Hatch Act Reform Amendments of 1993 would not prohibit the
remainder of federal employees covered by those Amendments from
making contributions to political action committees through the
salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly
prohibit such employees from taking steps to use the salary-allocation
system to make such contributions while they are on duty or in
a federal building.
While use of the salary-allocation system for contributions to
political action committees would be lawful under certain circumstances,
the head of each federal agency has the discretion to decide whether
to make the system available for that purpose to employees of
the agency.
February 22, 1995
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AUTHORITY OF FBI AGENTS, SERVING AS
SPECIAL DEPUTY UNITED STATES MARSHALS, TO PURSUE NON-FEDERAL FUGITIVES
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Regardless of whether federal
process is outstanding or anticipated, agents of the Federal Bureau
of Investigation have authority to investigate fugitive felons
when there is a reasonable basis to believe that doing so will
detect or prevent the commission of a federal crime. U.S. Marshals,
including FBI agents serving as Special Deputy U.S. Marshals,
have authority under 28 U.S.C. § 566(e)(1)(B) to investigate and
pursue fugitives wanted under state felony warrants whenever such
action is undertaken pursuant to a special apprehension program
approved by the Attorney General. Where a U.S. Marshal or Special
Deputy U.S. Marshal is engaged in an approved investigation of
state law fugitives under section 566(e)(1)(B), the marshal's
derivative state sheriff powers under 28 U.S.C. § 564 and the
marshal's inherent authority to take enforcement actions necessary
to carry out his federal duties provide bases for the marshal
to arrest such fugitives. Neither the doctrine of legislative
ratification nor the U.S. Marshals Service's inherent or "federal
common law" authority provide independent, non-statutory legal
authority for marshals to pursue or arrest fugitives sought for
state law violations only. In circumstances where there is good
reason to believe that the pursuit or arrest will prevent the
commission of a federal felony, marshals do have limited inherent
authority to take the necessary preventive measures.
February 21, 1995
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INTERNAL REVENUE SERVICE NOTICES OF
LEVY ON UNDELIVERED COMMERCE DEPARTMENT FISHING QUOTA PERMITS
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Internal Revenue
Service notices of levy may lawfully be applied to the undelivered
quota shares or individual fishing quotas to be issued by the
Department of Commerce to taxpayers who have otherwise qualified
for them.
January 26, 1995
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THE BALANCED BUDGET AMENDMENT
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The lack of any enforcement mechanism in current proposals
to amend the Constitution to require a balanced budget could result
in the transfer of power over fundamental political questions
of taxing and spending to the courts. This would represent a substantial
reordering of our basic constitutional structure.
Before resorting to the drastic step of amending the Constitution,
Congress should explore other reasonable alternatives, including
line item veto legislation.
January 23, 1995
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RELATIONSHIP BETWEEN DEPARTMENT OF
JUSTICE ATTORNEYS AND PERSONS ON WHOSE BEHALF THE UNITED STATES
BRINGS SUITS UNDER THE FAIR HOUSING ACT
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When the Department
of Justice undertakes a civil action on behalf of a complainant
alleging a discriminatory housing practice under the Fair Housing
Act, Department attorneys handling the action do not enter into
an attorney-client relationship with the complainant, nor do they
undertake a fiduciary obligation to the complainant. Because no
attorney-client relationship is established in such undertakings,
no retainer agreement between the complainant and the Department
attorneys should be entered into.
January 20, 1995
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