MEMORANDA AND OPINIONS |
Overview of Document |
RECONSIDERATION OF PRIOR OPINION CONCERNING LAND-GRANT
COLLEGES
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After reconsideration of a prior opinion, we adhere to
the conclusion that the State of West Virginia may validly designate West Virginia State
College as the beneficiary of appropriated funds under the Second Morrill Act of
1890. Reversing a prior conclusion, we find that
the State's designation of the College as a Second Morrill Act beneficiary does not make
that institution eligible for funds appropriated under certain statutes administered by
the Department of Agriculture.
December 23, 1993 |
ADMISSIBILITY OF ALIEN AMNESTY APPLICATION INFORMATION IN
PROSECUTIONS OF THIRD PARTIES
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The confidentiality provisions of the Immigration
Reform and Control Act of 1986 generally bar federal prosecutors from introducing
information from alien amnesty applications as evidence in criminal prosecutions of third
parties, but the use of such information is not barred in prosecutions of third parties
for crimes that facilitate, or are closely related to, the filing of a false amnesty
application. Justice Department use of amnesty
application information is also subject to regulations issued by the Immigration and
Naturalization Service. Those regulations limit such use against third parties to the
prosecution of persons who have "created or supplied a false writing or document for
use" in an amnesty application.
December 22, 1993 |
CLARIFICATION OF PRIOR OPINION REGARDING BORROWING BY BANK
EXAMINERS
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18 U.S.C. § 213, which prohibits federal bank
examiners from borrowing from Federal Reserve member banks or other entities subject to
examination by them, does not prohibit such examiners from receiving loans or credit from
affiliates of covered banks merely because such affiliates are under "common
control" with the bank or because the covered bank and the affiliate have a common
majority of corporate officers or directors. An
examiner would be prohibited from borrowing from such an affiliated entity, where the
affiliate is serving as a conduit or "front" for the implementation of a loan
that is actually extended due to the direction, instigation, or influence of the
affiliated member bank or person connected therewith.
December 20, 1993 |
AUTHORITY TO PAY STATE AND LOCAL TAXES ON PROPERTY AFTER
ENTRY OF AN ORDER OF FORFEITURE
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The Attorney General has discretionary authority to
make payments of state and local tax claims against civilly forfeited property after a
forfeiture order has issued, based on her equitable discretion to administer civilly
forfeited property, under 21 U.S.C. § 881(b)-(e) and 28 U.S.C. § 524(c)(1).
The Attorney General has discretion to pay state and local tax
claims against criminally forfeited property, under the authority in those statutes to
"take any other action to protect the rights of innocent persons which is in the
interests of justice."
December 9, 1993 |
APPLICABILITY OF EXECUTIVE ORDER NO. 12674 TO PERSONNEL OF
REGIONAL FISHERY MANAGEMENT COUNCILS
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The appointed members of Regional Fishery Management
Councils established under the Magnuson Fishery Conservation and Management Act and other
personnel of those Councils are not Executive Branch employees for purposes of Executive
Order No. 12674 and its implementing regulations, and thus are not subject to that
Order. December 9, 1993 |
CONSTITUTIONALITY OF VESTING MAGISTRATE JUDGES WITH
JURISDICTION OVER ASSET FORFEITURE CASES
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A statute vesting jurisdiction over asset
forfeiture cases in magistrate judges would violate Article III of the Constitution.
December 6, 1993 |
WHETHER MISSOURI MUNICIPALITIES MAY TAX THE PORTION OF
FEDERAL SALARIES VOLUNTARILY CONTRIBUTED TO THE THRIFT SAVINGS PLAN
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Intergovernmental tax immunity does not
preclude municipalities in Missouri from levying an earnings tax on the voluntary
contributions of federal employees to the Thrift Savings Plan. November 10, 1993 |
THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS
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Many Presidents have used signing statements to make
substantive legal, constitutional, or administrative pronouncements on the bill being
signed. Although the recent practice of issuing signing statements to create
"legislative history" remains controversial, the other uses of Presidential
signing statements generally serve legitimate and defensible purposes. November 3, 1993 |
CONSTITUTIONALITY OF HEALTH CARE REFORM
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The proposed Health Security Act is well within the
authority of the Congress under the Commerce Clause, and it does not violate Tenth
Amendment or other principles of federalism. The
proposal contains no unconstitutional takings of private property or infringement of
liberty interests.
The proposed delegation of administrative authority to the National
Health Board, and, from it, to state alliances, is not an impermissible delegation of
legislative authority.
October 29, 1993 |
APPLICABILITY OF THE EMOLUMENTS CLAUSE TO NON-GOVERNMENT
MEMBERS OF ACUS
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Non-government members of the Administrative Conference
of the United States (ACUS) are prohibited by the Emoluments Clause from accepting, absent
Congress's consent, a distribution from their partnerships that includes some
proportionate share of the revenues generated from the partnership's foreign government
clients. Non-government members of ACUS are also
generally forbidden, absent Congress's consent, from accepting payments from commercial
entities owned or controlled by foreign governments.
October 28, 1993 |
LIABILITY OF THE UNITED STATES FOR STATE AND LOCAL TAXES ON
SEIZED AND FORFEITED PROPERTY
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In civil forfeiture proceedings (under 21 U.S.C. §
881), the United States is obligated to pay liens for state and local taxes accruing after
the commission of the offense leading to forfeiture and before the entry of a judicial
order of forfeiture, if the lien-holder establishes, before the court enters the order of
forfeiture, that it is an innocent owner of the interest it asserts.
In criminal forfeiture proceedings (under 18 U.S.C. § 1963 or 21 U.S.C. §
853), the United States may not pay such liens because state and local tax lien-holders
are not bona fide purchasers for value of the interests they would assert, and therefore
do not come within any applicable exception to a statute that, upon entry of a court's
final order of forfeiture, vests full ownership retroactively in the United States as of
the date of the offense.
October 18, 1993 |
IMMIGRATION CONSEQUENCES OF UNDOCUMENTED ALIENS' ARRIVAL IN
UNITED STATES TERRITORIAL WATERS
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Undocumented aliens interdicted within the twelve-mile
zone that comprises the United States's territorial sea are not entitled to a hearing
under the exclusion provisions of the Immigration and Nationality Act (INA).
The Immigration and Naturalization Service had the authority to promulgate an
interpretative rule construing the "territorial waters" of the United States, as
referred to in section 287 of the INA, to extend for twelve nautical miles.
October 13, 1993 |
SUSPENSION OF A UNITED STATES MARSHAL
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With the prior approval of the President, the Attorney
General may suspend a United States Marshal without pay. During
the period of a United States Marshal's suspension, the Attorney General may designate an
Acting United States Marshal to carry out the duties of the office.
September 23, 1993 |
REIMBURSEMENT FOR COSTS OF ATTENDING CERTAIN BANQUETS
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Employees in the United States Attorneys' offices may
properly be reimbursed for the costs of attending retirement banquets for state law
enforcement officials under appropriate circumstances. However, reimbursement for
attendance at such functions should be limited to circumstances where the nature of the
ceremonial event in question provides good reason to believe that the employee's
attendance advances the authorized functions or programs of the office. September 23, 1993 |
DISCLOSURE OF GRAND JURY MATTERS TO THE PRESIDENT AND OTHER
OFFICIALS
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The Attorney General may disclose grand jury material
covered by Rule 6(e) of the Federal Rules of Criminal Procedure to the President and
members of the National Security Council where such disclosure is for the purpose of
assisting the Attorney General in her enforcement of federal criminal law. Although under
those circumstances such disclosure may be made without prior judicial approval, the names
of those receiving the grand jury material must be submitted to the court that impaneled
the grand jury in question. There are also circumstances
where the President's constitutional responsibilities may provide justification for the
Attorney General to disclose grand jury matters to the President independent of the
provisions of Rule 6(e). Such circumstances might arise, for example, where the Attorney
General learns through grand jury proceedings of a grave threat of terrorism, implicating
the President's responsibility to take care that the laws be faithfully executed.
September 21, 1993 |
GENERAL SERVICES ADMINISTRATION PRINTING OPERATIONS
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The Joint Committee on Printing lacks the authority to
alter the General Services Administration's printing operations, because the only basis
for that authority is an invalid legislative veto provision contained in 44 U.S.C. 501.
Section 207 of Public Law 102-392 requires executive branch entities (other than the
Central Intelligence Agency, the Defense Intelligence Agency, and the National Security
Agency) to procure printing related to the publication of government publications by or
through the Government Printing Office. September
13, 1993 |
ETHICS ISSUES RELATED TO THE FEDERAL TECHNOLOGY TRANSFER ACT
OF 1986
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A government employee-inventor who assigns his rights
in an invention to the United States and accepts the government's payment of amounts tied
to the resulting royalties, as provided in the Federal Technology Transfer Act of 1986, 15
U.S.C. §§ 1501-1534, may continue to work on the invention without violating the statute
against taking part in matters in which he has a financial interest, 18 U.S.C. § 208, or
the statute forbidding supplementation of federal salaries, 18 U.S.C. § 209.
Under 18 U.S.C. § 208, a government employee-inventor may not take
official action with respect to an agreement for development of his invention entered into
by the United States and a company with which the employee has contracted to exploit the
invention abroad.
September 13, 1993 |
APPLICABILITY OF 18 U.S.C. § 207(c) TO THE BRIEFING AND
ARGUING OF CASES IN WHICH THE DEPARTMENT OF JUSTICE REPRESENTS A PARTY
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Section 207(c) of title 18 forbids a former senior
employee of the Department of Justice, for one year after his or her service ends, from
signing a brief or making an oral argument in a case where the Department represents one
of the parties. August 27, 1993 |
CONSTRUCTION OF § 406 OF THE FEDERAL EMPLOYEES PAY
COMPARABILITY ACT OF 1990
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Section 406 of the Federal Employees Pay Comparability
Act of 1990 does not extend the authority to make bonus payments to employees at the New
York Field Division of the Federal Bureau of Investigation pursuant to section 601 of the
Intelligence Authorization Act for fiscal years 1989 and 1990 beyond the expiration date
of the demonstration project established by section 601. August 23, 1993 |
APPLICABILITY OF THE CIVIL SERVICE PROVISIONS OF TITLE 5 OF
THE UNITED STATES CODE TO THE UNITED STATES ENRICHMENT CORPORATION
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The United States Enrichment Corporation
is exempt from the civil service provisions of title 5 of the United States Code.
June 22, 1993 |
AUTHORITY OF THE SECRETARY OF THE TREASURY REGARDING POSTAL
SERVICE BOND OFFERING
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If the Secretary of the Treasury, within the
fifteen-day period following notice by the United States Postal Service of a proposed bond
issue, declares his election to purchase the bonds under 39 U.S.C. § 2006(a), the Postal
Service may not sell the bonds on the open market, but must instead negotiate in good
faith with the Secretary to reach agreement on the terms and conditions of a sale to the
Secretary. Transfer of the proceeds of any bond offering
by the Postal Service to a trustee for the purpose of having the trustee make payments on
outstanding Postal Service debt would be a deposit of Postal Service monies within the
meaning of 39 U.S.C. § 2003(d) and, accordingly, could only be done with the approval of
the Secretary of Treasury.
January 19, 1993 |
AUTHORITY TO GRANT CONSERVATION EASEMENTS UNDER 40 U.S.C. §
319
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Federal agencies do not have authority to
grant conservation easements in federal property under 40 U.S.C. § 319. January 19, 1993 |
AUTHORITY OF THE ATTORNEY GENERAL TO MAKE SUCCESSIVE
DESIGNATIONS OF INTERIM UNITED STATES MARSHALS
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Under 28 U.S.C. § 562, the Attorney General may make
two 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. After the expiration of an initial designation of a United States marshal under
28 U.S.C. § 562, the Attorney General may authorize a person to act as marshal under 28
U.S.C. §§ 509, 510.
January 19, 1993 |
